Arysta Lifescience South Africa (Pty) Ltd v Farm-Ag International (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Louw J
• Judgment Date: 13 February 2018
• Docket Number: PATENT NO: 2013/07161
• Court: Commissioner of Patents
• Hearing Date: 13 February 2018
• Citation: 2018 JDR 0509 (GP)

Louw, J

[1]

The applicant is the patentee of South African patent 2013/07161 entitled "A Systemic Pesticide Composition for the Treatment of Sugarcane infested by Thrips". The complete specification was lodged on 25 September 2013, claiming priority from a provisional patent application filed on 28 May 2013. The applicant applies for an interim interdict restraining the first and second respondents, to whom I shall refer as the respondents, from infringing certain claims of the patent pending an action which the applicant has instituted against the respondents for final relief.

[2]

The inventor of the invention claimed in the patent is Mr. Marcel Dreyer, a director and chief executive officer of the applicant. He explains in his affidavit filed in support of the application for an interdict that thrips are very small winged insects that typically occur on citrus and vegetables. There are several different thrips species. All of them have in common that they cause direct damage to the foliage of the plant by their feeding and oviposition behaviour. The thrips destroy the epidermal cells by piercing them with a single mandibular stylet and imbibing the liquid content through paired maxillary stylets. The damage causes malformation of young leaves and growing tips, wilting, silvering, scarring and necrotic spots on the leaf spindles that become apparent when the leaves open.

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Louw, J

[3]

The evidence of Mr. Dreyer, which is not disputed, is that, before 2004, thrips was not known to occur in sugarcane. Very few insects were known to attack sugarcane prior to 2004, with the result that it was generally unnecessary for sugarcane farmers to treat their crops with any insecticide. In 2004, however, it was discovered that a new thrips species, which was later identified and named Thrips Fulmekiola Serrata, was attacking sugarcane and causing substantial damage to sugarcane crops in South Africa. It attacks only sugarcane and is the only species known to do so. It has become known as "sugarcane thrips". It differs from other thrips species in two primary respects. Firstly, as already mentioned, it feeds on sugarcane exclusively. Secondly, it resides in the spindle of the sugarcane, i.e. in the sugarcane plant, whereas other species are found on the foliage of the plant in question. This means that, whereas other species are capable of being treated by an insecticide that acts on contact externally on the plant, sugarcane thrips must be treated using an insecticide that acts systemically.

[4]

Claim 1 of the patent, which is the broadest claim, claims a systemic pesticide composition for the treatment of sugarcane infested by thrips, the active ingredient of the pesticide composition comprising a neonicotinoid of the formula C10H11CIN4. The specification states that the active ingredient may further be allocated the chemical nomenclature N-[(6-chloro-3-pyridyl)methyl]-N'-cyano-N-methyl-acetamidine (which is how it is claimed in claim 2 of the patent), and may be commonly known as acetamiprid.

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Louw, J

[5]

The applicant applies for an interim interdict prohibiting the first and second respondents from infringing, or aiding and abetting each other to infringe, claims 1 to 11, 14, 15 and 17 of the patent by using and/or disposing of or offering to dispose of the product Wonderland or any other product falling within the scope of claim 1 of the patent for use in the treatment of sugarcane infested by thrips, and from aiding and abetting the infringement of claims 14, 15 and 16 of the patent by end-users of Wonderland by selling wonderland or any other product falling within the scope of claim 1 of the patent with instructions to use the product to control thrips infestations in sugarcane. The interim interdict is sought pending the outcome of an action which has been instituted by the applicant against the respondents for final relief.

[6]

The respondents do not dispute that their Wonderland product falls within the scope of claim 1 of the patent and that they have infringed the aforesaid claims of the patent, but have filed a counter-application in which they seek the revocation of the patent on the grounds of lack of novelty, obviousness, lack of clarity and material misrepresentation by the applicant when filing for the patent. They oppose the applicant's application for an interdict on the first three grounds, stating in their heads of argument that the last ground will be pursued in the action once they have found better evidence in that regard. It became common cause during the hearing that the respondents' counter-application should be referred to trial. The issue

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presently to be decided is therefore whether or not the applicant has made out a case for the granting of an interim interdict.

Delay

[7]

Mr. Dreyer states in the applicant's founding affidavit that the applicant became aware on 31 January 2017 that the respondents' Wonderland product had been registered and was being marketed for use in controlling sugarcane thrips. The applicant thereafter caused a patent search to be done, the results of which showed that acetamiprid was not, before 2013, known to be able to control thrips in sugarcane. An opinion was then sought from counsel on 9 February 2017 and the applicant's board resolved on 10 February 2017 to launch the present application. The founding affidavit was deposed to by Mr. Dreyer on 20 February 2017 and the application was issued on 27 February 2017.

[8]

Mr. Akthar Shaik, a director of the respondents, states in his answering affidavit that the applicant unduly delayed the bringing of the application because it knew, or ought reasonably to have known, about the launch of the respondents' product in August 2016. He relies in this regard to a publication of the Veterinary and Crop Associations of South Africa of which Croplife SA is a member. He states that Mr. Dreyer is the president and

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the applicant a member of Crop life SA. A redacted copy of the publication is attached to Dr. Keegan's affidavit. Mr. Dreyer denies in his reply that the respondents' product was launched in August 2016 and correctly points out that the publication merely reflects that the respondents had obtained registration for such a product.

[9]

Dr. Keegan in his affidavit states that he is aware that Mr. Peacock, who is employed with the applicant as technical advisor, which position he has held since 1 January 2011 and to whose affidavit I will later refer, approached the first respondent in mid-2016 for a position of employment and that he was then provided with information of the respondents' intention of launching Wonderland. Dr. Keegan states that it is entirely unlikely that Mr. Peacock did not disclose this fact to the applicant.

[10]

Mr. Dreyer states in his reply to this allegation that Mr. Peacock did not tell the applicant anything about his alleged approach to the first respondent for a position of employment and that it would have been surprising had he done so. Mr. Peacock confirms in an affidavit that he did not inform the applicant. There is therefore nothing to gainsay the applicant's evidence about when it became aware of the launch of the respondents' Wonderland product. No undue delay in the launching of the application has therefore been shown by the respondents.

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Requirements for an interim interdict

[11]

The requirements for an interim interdict are a prima facie right, even though open to some doubt; a well-grounded apprehension of irreparable harm if the interim relief is not granted and the ultimate relief is eventually granted; that the balance of convenience is in favour of the granting of an interim interdict; and that the applicant has no other satisfactory remedy. [1]

[12]

The proper approach to the evaluation of evidence in applications for a temporary interdict was stated as follows in Beecham Group Ltd v B-M Group (Pty) Ltd [2] :

"As to the question of the applicant's prospects of success in the action, the proper approach of the Court in applications for a temporary interdict to restrain the infringement of a patent should, in my view, be that which was laid down in Webster v Mitchell, [3] supra, as qualified in Gool v Minister of Justice and Another, 1955 (2) SA 682 (C) at p. 688C - E, as follows:

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"In granting the rule nisi in the present case HERBSTEIN, J., adopted and applied the views expressed by CLAYDEN, J., in Webster v Mitchell, supra, the headnote of which reads as follows :

'In an application for a temporary interdict, applicant's right need not be shown by a balance of probabilities; it is sufficient if such right is prima facie established, though open to some doubt. The proper manner of approach is to take the facts as set out by the applicant together with any facts set out by the respondent which applicant cannot dispute and to consider whether, having regard to the inherent probabilities, the applicant could on those facts obtain final relief at a trial. The facts set up in contradiction by the respondent should then be considered, and if serious doubt is thrown upon the case of applicant he could not succeed.'

With the greatest respect, I am of opinion that the criterion prescribed in this statement for the first branch of the inquiry thus outlined is somewhat too favourably expressed towards the applicant for an interdict. In my view the criterion on an applicant's own averred or admitted facts is: should (not could) the applicant on those facts obtain final relief at the trial. Subject to that qualification. I respectfully agree that the approach outlined in Webster v Mitchell, supra, is the correct approach for ordinary interdict applications."

Prima facie right

[13]

By virtue of the registration of the patent, it is prima facie valid. The...