Bayer Intellectual Property Gmbh & Two Others v Dr Reddy's Laboratories (Pty) Ltd
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | R Keightley J |
| Judgment Date | 01 March 2022 |
| Docket Number | 22237/21; 2007/06238-5 |
| Hearing Date | 17 February 2022 |
| Court | Commissioner of Patents |
| Citation | 2022 JDR 0536 (COP) |
Keightley J:
INTRODUCTION:
The respondent in the main application, Dr Reddy's, seeks leave to appeal my judgment dated 15 December 2021. In that application I concluded that:
"… (the applicants) has satisfied all the requirements for the grant of an interim interdict protecting its rights under the patent-in-suit. I make the following order:
1. Pending the final determination of the patent infringement action which has been instituted by the applicants against the respondents in respect of South African Patent No. 2007/06238, the respondent is interdicted and restrained from infringing the claim of South African Patent No. 2007/06238 by using, disposing of or offering to dispose of the product RIVAXORED (or any other product falling within the scope of the claim of the patent) in the Republic and by importing any such product into the Republic.
2. The respondent is ordered to pay the costs of this application, including the costs of counsel and the qualifying fees of the applicant's expert witnesses."
Despite the express grant of the relief in the form of an interim interdict, Dr Reddy's contends that the judgment and order is appealable. The applicants in the main application, whom I shall refer to collectively as Bayer, contend otherwise.
Dr Reddy's does not dispute that the application in the interdict application was brought, and dealt with by both parties, on the basis that Bayer sought interim relief. Nor do they dispute that judgment dealt with the matter on the basis that interim relief was granted. However, they submit that the judgment was final in effect, that I made "several final findings" in my order, and that for this reason it falls into that category of judgments that are susceptible to appeal. Alternatively, they contend that it is appealable based on the requirement of the interests of justice.
PRINCIPLES APPLICABLE TO THE QUESTION OF APPEALABILITY:
It is trite that at common law interim interdicts generally are not appealable. As was stated in the still-applicable principles laid down in Zweni:
Keightley J
"A 'judgment or order' is a decision which, as a general principle, has three attributes, first, the decision must be final in effect and not susceptible of alteration by the Court of first instance; second, it must be definitive of the right of the parties; and third, it must have the effect of disposing of at least a substantial portion of the relief claimed in the mains proceedings." [1]
This is not a closed list of requirements. [2] It is sometimes said that an order has "final effect" if it causes prejudice to the unsuccessful party. However, what is meant by "prejudice" in this context, is specific. It does not mean a generally disadvantageous outcome for that party. Instead, the question is whether the order is prejudicial because it "affects the final determination of an issue in the suit or stands in the way of an issue being determined at a later date. [3] In other words, the guiding element of finality is that the order will not be reconsidered by the court that granted it. [4]
The Constitutional Court has stressed that the test for appealability of interim orders must be developed and applied in line with constitutional requirements and, most importantly, the interests of justice. In City of Tshwane Metropolitan Municipality v Afriforum and Another, that Court explained that:
"The appealability of interim orders in terms of the common law depends on whether they are final in effect... The common law test for appealability has since been denuded of its somewhat inflexible nature. Unsurprisingly so because the common law is not on par with but subservient to the supreme law that prescribes the interests of justice as the only requirement to be met for the grant of leave to appeal. Unlike before, appealability no longer depends largely on whether the interim order appealed against has final effect or is dispositive of a substantial portion of the relief claimed in the main application. AlI this is now subsumed under the constitutional interests of justice standard. The over-arching role of interests of justice considerations has relativised the final effect of the order or the disposition of the substantial portion of what is pending before the review court, in determining appealability". [5]
Keightley J
Despite this statement of law, the jurisprudence of the Constitutional Court makes it clear that the finality of the order remains an important requirement, albeit that it must be weighed with the interests of justice. This is evident, for example, in its dictum in National Treasury and Others v Opposition to Urban Tolling Alliance and Others:
"This court has granted leave to appeal in relation to interim orders before. It has made it clear that the operative standard is the "interests of justice". To that end, it must have regard to and weigh carefully all germane circumstances. Whether an interim order has a final effect or disposes of a substantial portion of the relief sought in a pending review is a relevant and important consideration. Yet, it is not the only or always decisive consideration. It is just as important to assess whether the temporary restraining order has an immediate and substantial effect, including whether the harm that flows from it is serious, immediate, ongoing and irreparable." [6]
FINALITY OF THE JUDGMENT AND ORDER:
Dr Reddy's contends that my judgment and order has final effect because, at paragraph 59 of my judgment, I stated, allegedly erroneously, that:
"Dr Reddy initially placed the issue of obviousness in dispute by contending that the patent did not involve an inventive step. However, at the hearing of the matter, counsel indicated that, insofar as the validity of the claim was concerned, it would only persist in its submissions that the patent was an invalid Swiss form claim, and that it should be revoked on the basis of Bayer's alleged misrepresentation at the time the patent was submitted for registration. It did not persist with its challenge based on obviousness."
The submission seems to be that in effect I found that Dr Reddy's had abandoned its attack based on obviousness for all intents and purposes. As such, so the submission continues, Dr Reddy's will be precluded from relying on the obviousness attack in the pending revocation application and trial, as I have found it to have abandoned this attack, not only for the interim interdict application before me, but
Keightley J
also for the pending litigation. Consequently, it concludes that my judgment has final effect on this issue.
Read on its own this paragraph might perhaps support the submission. However, the paragraph was but one of many in a thirty-seven-page judgment. It is perfectly clear from a reading of my judgment as a whole that I did not find that Dr Reddy's had abandoned its obviousness attack, and that, going forward and for the purposes of all pending litigation, that attack was a legal dead letter.
First, as the matter was dealt with by myself and the parties as an application for an interim interdict, I could not have made such a finding anyway: all of my findings were expressly stated to be of a prima facie nature. There are numerous markers in my judgment making this very clear.
In paragraph 5 of the judgment, I state that:
"It can be safely said that the present application is but the first step in what will not no doubt be extensive further litigation between the parties. However, it is important to bear in mind that in these proceedings I am concerned only with the application by Bayer for interim relief, and any findings I make on the broader issues in dispute will be on a prima facie basis."
In addition, the question of obviousness also arose for discussion in connection with the attack by Dr Reddy's on Swiss form claims, with which they persisted before me. During the course of analysing the relevant case law and evidence on...
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