LML4801
Assignment 2, First semester 2025
FEEDBACK
Section 61 of the Patents Act 57 of 1978 provides the grounds for revocation. The first
ground that could be relevant is found in section 61(1)(a) ‘that the patentee is not a person
entitled under section 27 to apply for the patent’ since the scenario states that Peter devises
the new dosage regime (as inventor), but that Pharmabayu applies for the patent (as
applicant). In patent law, usually the employee inventor would have to apply unless their
contract of employment states that the invention would be assigned to the company and
even then, section 59(2)(a) nullifies a condition in a contract of employment requiring such
assignment where the invention was made outside the course and scope of employment.
This revocation ground seems likely to succeed because the invention was made during
Peter’s leave. Pharmabayu would thus not be able to show proof that the title passed legally.
Section 61(1)(c) ‘that the invention concerned is not patentable under section 25’ is relevant
since the novelty and inventiveness of the dosage regime may be questioned. While the
medicine compound and medical use are not new, the novelty of the claimed invention lies
in the dosage regime. However, the dosage regime may be viewed as obvious in the trade
by a person skilled in the art of the invention (a pharmacist or manufacturer of
pharmaceuticals). (Refer to the prescribed cases relating to inventiveness to substantiate
your argument.) It could also be argued that the dosage regime entails a method of
treatment of the human body by therapy which is deemed not capable of being used or
applied in trade or industry or agriculture (as excluded by section 25(11). However, since
the claim is in the so-called Swiss form (a claim for making a medicament for the treatment
of a condition by using a known substance in its manufacture) this exclusion may not apply.
If you argued convincingly, with substantiation, for application of any of the other section
61(1) revocation categories or for a different likelihood of success for the mentioned
categories, that also attracted some marks.
Total for Assignment 1: 20
Page 1 of 1
Assignment 2, First semester 2025
FEEDBACK
Section 61 of the Patents Act 57 of 1978 provides the grounds for revocation. The first
ground that could be relevant is found in section 61(1)(a) ‘that the patentee is not a person
entitled under section 27 to apply for the patent’ since the scenario states that Peter devises
the new dosage regime (as inventor), but that Pharmabayu applies for the patent (as
applicant). In patent law, usually the employee inventor would have to apply unless their
contract of employment states that the invention would be assigned to the company and
even then, section 59(2)(a) nullifies a condition in a contract of employment requiring such
assignment where the invention was made outside the course and scope of employment.
This revocation ground seems likely to succeed because the invention was made during
Peter’s leave. Pharmabayu would thus not be able to show proof that the title passed legally.
Section 61(1)(c) ‘that the invention concerned is not patentable under section 25’ is relevant
since the novelty and inventiveness of the dosage regime may be questioned. While the
medicine compound and medical use are not new, the novelty of the claimed invention lies
in the dosage regime. However, the dosage regime may be viewed as obvious in the trade
by a person skilled in the art of the invention (a pharmacist or manufacturer of
pharmaceuticals). (Refer to the prescribed cases relating to inventiveness to substantiate
your argument.) It could also be argued that the dosage regime entails a method of
treatment of the human body by therapy which is deemed not capable of being used or
applied in trade or industry or agriculture (as excluded by section 25(11). However, since
the claim is in the so-called Swiss form (a claim for making a medicament for the treatment
of a condition by using a known substance in its manufacture) this exclusion may not apply.
If you argued convincingly, with substantiation, for application of any of the other section
61(1) revocation categories or for a different likelihood of success for the mentioned
categories, that also attracted some marks.
Total for Assignment 1: 20
Page 1 of 1
