Constitutional considerations in patent litigation


Nico Vermaak and Jaco Theunissen

The South African Supreme Court of Appeal (SCA) was tasked during 2012 with adjudicating in appeal proceedings in Cipla Medpro (Pty) Ltd v Aventis Pharma SA, pertaining to South African patent no 1993/8936 registered in the name of Aventis.

The Treatment Action Campaign (TAC) intervened, unopposed, in the proceedings and argued that constitutional considerations, and mainly the public interest, should be applied when deciding whether Aventis should be granted the interdict it sought.

Aventis sought an interim interdict to prevent Cipla from infringing its patent, relating to an oncology product by the brand name of Taxotere (docetaxel), by its intended marketing of Cipla Docetaxel. Cipla in turn applied for the setting aside of an earlier amendment of the patent. Both applications failed at first instance before the Court of the Commissioner of Patents, and both parties appealed to the SCA. We shall not dwell on the first appeal, which did not succeed, relating to the application to set aside the earlier amendment of the patent.

Aventis’ appeal against the refusal of the commissioner to grant the interdict did, however, succeed. The unique aspect of the case was that the TAC, an activist group lobbying for cheaper medicines, was admitted as amicus curiae only at the SCA stage of the matter.

South Africa SCA, pharmaceuticals, Aventis, patent litigation