Patents Act, 1978 (Act No. 57 of 1978)Chapter XI : Infringement66. Restriction on recovery of damages for infringement |
| (1) | A patentee shall not be entitled to recover damages in respect of infringement of a patent from a defendant who proves that at the date of the infringement he was not aware, and had no reasonable means of making himself aware, of the existence of the patent, and the marking of an article with the word “patent” or “patented” or any word or words expressing or implying that a patent has been obtained for the article, stamped, engraved, impressed on or otherwise applied to the article, shall not be deemed to constitute notice of the existence of the patent unless such word or words are accompanied by the number of the patent: Provided that nothing in this section shall affect any proceedings for an interdict. |
| (2) | Any person who represents that any invention is patented, without such representation disclosing the number of the patent concerned, and from whom the number of such patent has been requested in writing by registered post by any other person unaware of such number, may not recover from such other person damages, or obtain an interdict against him, in respect of any infringement of such patent by such other person, committed during the period commencing with the representation and terminating two months after the date on which such other person was notified in writing by the first-mentioned person of the number of the patent concerned. |
| (3) | Any person who, having made a request referred to in subsection (2), expends during the period referred to in that subsection any money, time or labour with a view to making, using, exercising, offering to dispose of, disposing of or importing the invention, may apply in the manner prescribed to the commissioner for compensation in respect of the money, time or labour reasonably so expended, and the commissioner may issue such order as he or she may deem fit. |
[Sub-section (3) substituted by section 14 of Act No. 58 of 2002.]
| (4) | If proceedings are instituted in respect of infringement of a patent, committed after the failure to pay any prescribed renewal fee within the prescribed period, and before any extension of the period for such payment, the commissioner may, if he thinks fit, refuse to award any damages in respect of the infringement. |
| (5) | Where an amendment of a specification has been allowed under section 51, the commissioner may in his discretion refuse to award damages in respect of any acts of infringement committed before that amendment was so allowed and, in exercising his discretion, the commissioner may take into consideration the conduct of the patentee in framing the specification and permitting it to remain in its unamended form. |