Selero (Pty) Ltd v Mostert and Another NNO

• Judge: Eloff DJP, MacArthur J, Goldstone J
• Judgment Date: 11 November 1987
• Citation: 1989 (1) SA 41 (T)
• Hearing Date: 11 November 1987
• Court: Transvaal Provincial Division

Eloff DJP:

On 23 October 1978, F L O J Chauvier ('Chauvier') filed an application dated 19 October 1978 for a patent under application 78/5946 for an invention entitled 'an apparatus and method for cleaning a surface submerged in a liquid'. The application was accompanied by a provisional specification and a complete specification was G thereafter lodged. On 18 November 1980 Chauvier's attorneys requested the Registrar of Patents in writing to amend patent form No 1 of the patent application. The reason given for the amendment was 'it is desired to convert the application to one of an addition'. At the same time Chauvier's attorneys notified the appellant's attorneys that the request had been filed. The response of the latter was to write a letter H dated 27 November 1980 to the Registrar of Patents advising him that appellant objected to the application to amend and wished to be heard in support of opposition. Chauvier's attorneys in turn adopted the attitude, which they expressed in a letter to the Registrar dated 11 December 1980, that, not only did the applicable Patents Act 37 of 1952 I not provide for opposition to requests for amendments of the sort under discussion, but also that appellant had no locus standi to oppose the granting of the request for an amendment. They suggested that the Registrar should conduct a hearing on the question whether the appellant had the right to be heard in opposition to the amendment. The Registrar agreed to do so and all interested parties were heard by him on 10 March J 1981. Those who claimed the right to audience on the request for

Eloff DJP

A amendment were Peacock Investments (Pty) Ltd and the appellant. On 7 July 1981 the Registrar ruled 'that neither of the objectors had locus standi to oppose the request for the amendment of patent form 1 as was requested by the appellants...' and he ordered that the costs be paid by the objectors.

B The appellant thereupon noted an appeal to the Commissioner of Patents. The appeal was dismissed by Kriegler J with costs. The present is an appeal against his decision.

Kriegler J held that neither the maxim audi alteram partem nor the provisions of s 74(1) of the 1952 Act afforded an objector or other interested party a right of audience when the Registrar considered C an application for amendment such as that referred to. The power of the Registrar to authorise the amendment of patent form 1 flows from s 72(1)(b) of the 1952 Act which says:

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