Patents Act, 1978 (Act No. 57 of 1978)Chapter VII : Corrections and Amendments51. Amendment of specification |
| (1) | An applicant for a patent or a patentee may at any time apply in the prescribed manner to the registrar for the amendment of either the relevant provisional specification or the relevant complete specification, and shall in making such application, set out the nature of the proposed amendment and furnish his full reasons therefor. |
| (2) | An application for the amendment of a specification that is open to public inspection shall, except in the case of an application so open in terms of section 43(3), be advertised in the prescribed manner. |
(3)
| (a) | Any person may oppose such application for amendment within the prescribed time and in the prescribed manner. |
| (b) | Such opposition to such application for amendment shall be dealt with by the commissioner in the prescribed manner, and the commissioner shall determine whether and on what conditions, if any, the amendment ought to be allowed. |
| (4) | Where the acceptance of a specification concerned has not been published in terms of section 42 or there is no opposition in terms of subsection (3)(a) of this section, the registrar may determine whether and on which conditions, if any, the amendment ought to be allowed. |
[Sub-section (4) substituted by section 7(a) of Act No. 67 of 1983.]
| (5) | An amendment of a provisional specification shall be allowed if it is by way of correction, including correction of an obvious mistake, and no amendment of a provisional specification shall be allowed if it would introduce new matter or matter not in substance disclosed in the specification sought to be amended. |
| (6) | No amendment of a complete specification which becomes open to public inspection after the publication of the acceptance of the specification in terms of section 42, whether before or after it so becomes open to public inspection, shall be allowed if— |
| (a) | the effect of the amendment would be to introduce new matter or matter not in substance disclosed in the specification before amendment; or |
| (b) | the specification as amended would include any claim not fairly based on matter disclosed in the specification before amendment. |
[Sub-section (6) amended by section 7(b) of Act No. 67 of 1983.]
| (7) | No amendment of a complete specification which has become open to public inspection after the publication of the acceptance of the specification in terms of section 42 shall be allowed if the specification as amended would include any claim not wholly within the scope of a claim included in the specification before amendment. |
| (8) | Where an amendment may not be allowed by reason of the prohibition imposed by subsection (6) (a), but it describes matter which may fairly be associated with the matter described in the specification as framed and the acceptance of the specification concerned has not been published in terms of section 42, the new matter may be introduced by way of a supplementary disclosure attached to the specification and dated with the date on which the application for amendment is made: Provided that in determining the validity of the patent under this Act, regard shall be had to the priority date of the new matter introduced by way of the supplementary disclosure. |
[Sub-section (8) amended by section 43 of Act No. 38 of 1997.]
| (9) | Where any proceedings relating to an application for a patent or a patent are pending in any court, an application for the amendment of the relevant specification shall be made to that court, which may deal with such application for amendment as it thinks fit but subject to the provisions of subsections (5), (6) and (7), or may stay such pending proceedings and remit such application for amendment to the registrar to be dealt with in accordance with subsections (2), (3) and (4). |
[Sub-section (9) substituted by section 3(b) of Act No. 44 of 1986.]
| (10) | Any amendment of a specification made in conflict with the provisions of this section, other than an amendment allowed by the commissioner or a court, may be set aside by the commissioner at any time on application made to him. |