In South Africa, after a patent is granted, anyone can file a request for patent revocation with the South African court. Or in an infringement lawsuit, as part of the defendant's defense, a counterclaim for patent revocation can also be filed. In the South African patent procedure, there is no provision for opposing or revoking unauthorized patent applications.
Under the South African Patents Act, there are limited grounds on which a patent may be revoked, including:
• the invention was already part of the prior art when the application was filed;
• the invention is obvious over the prior art known at the time the application was filed;
• The patent owner has no right to apply for the patent;
• the grant of the patent is a fraud on the rights of the person applying for revocation;
• the entire specification fails to adequately describe, define, and, where necessary, demonstrate or explain the invention to enable one skilled in the art to practice the invention;
• the claims are unclear or not reasonably based on the disclosure in the specification;
• A claim or statement regarding the use of indigenous biological resources, genetic resources and traditional knowledge contains a false statement which the patentee knew or reasonably should have known was material at the time the statement was made.
South Africa Withdrawal Application Process
In South Africa, the steps for filing a request for patent revocation are as follows:
- A request for revocation must be made on the prescribed form P20 and accompanied by a statement setting out in detail the grounds for revocation.
- Within two months from the date of filing the application to revoke the patent, the patent owner must file a counter-statement in the form of a statement of defence. If no counter-statement is filed, the patent is deemed to have been revoked.
- Within two months from the date of filing of the counter-statement, the petitioner for revocation is required to file an affidavit/declaration setting out the evidence on which his or her case is based.
- The patent owner shall submit an affidavit/declaration listing its defense evidence within two months after receiving the evidence from the revocation applicant.
- The applicant for revocation shall submit and file a reply within the last two months, and the content of the reply shall be limited to the response to the patent owner's defense evidence.
- No further evidence may be submitted by either party unless permitted or directed by the official. Once all evidence has been submitted, both the petitioner and the applicant may request a hearing, which will determine whether to revoke or maintain the patent.
