Sibanda & Zantwijk

PATENTS ACT:

 

Joint ownership

 

27. Who may apply for a patent.

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(2) In the absence of an agreement to the contrary, joint inventors may

apply for a patent in equal undivided shares.

 

29. Joint ownership of applications.

(1) Subject to the provisions of subsection (2), joint applicants for a patent shall in default of an agreement to the contrary have equal undivided shares in the application and none of them may without the consent of the other joint applicant or applicants deal in any way with the application: Provided that if any proceedings are required to save the application from becoming abandoned, any applicant may institute such proceedings on behalf of himself and any other joint applicant.

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49. Joint ownership in patents.

(1) Where a patent is granted to two or more persons jointly, each of the joint patentees shall, in the absence of an agreement to the contrary, be entitled to an equal undivided share in the patent.

(2) Subject to the provisions of subsection (4), a joint patentee shall, in the absence of an agreement to the contrary and in the absence of consent of the joint patentee or patentees, not be entitled—

(a) to make, use, exercise, offer to dispose of, dispose of or import the patented invention;

(b) to grant a licence or to assign the whole or any part of his interest in the patent; or

(c) to take any steps or institute any proceedings relating to the patent:

Provided that he may pay any renewal fee that is payable without recourse to any other patentee, unless the commissioner directs otherwise in proceedings in terms of subsection (6).

(3) Where a patented article is disposed of by a joint patentee, the acquirer or any person claiming through him shall be entitled to deal with it in the same manner as if the article had been disposed of by the patentees jointly.

(4) Any joint patentee may institute proceedings for infringement and shall give notice thereof to every other joint patentee, and any such other patentee may intervene as co-plaintiff and recover any damages in respect of any damage he may have suffered as a result of the

infringement.

(5) If in any proceedings under subsection (4) damages are awarded to a plaintiff, he shall be awarded damages as if he were the sole patentee, and the defendant shall not be obliged to compensate any other joint patentee in respect of the infringement in question.

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Implied rights

 

45. Effect of patent.

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(2) The disposal of a patented article by or on behalf of a patentee or his licensee shall, subject to other patent rights, give the purchaser the right to use, offer to dispose of and dispose of that article.

 

58. Effect of licence.

In default of an agreement to the contrary—

(a) a licence to make a patented article shall carry with it the right to use or offer to dispose of or dispose of the patented article; and

(b) a licence to use or exercise a patented process shall carry with it the right to make, use or offer to dispose of or dispose of the product of the process.

 

Termination of licences

 

57. Termination of contracts relating to licences.

(1) Any contract, in so far as it relates to a licence under a patent to make, use, exercise, offer to dispose of, dispose of or import a patented invention, shall terminate on the date on which the patent under which the licence was granted expires, is revoked or otherwise ceases to protect such invention: Provided that where the contract relates to licences under more than one patent, such part of the contract as relates to any particular licence shall terminate when the patent under which it was granted expires, is revoked or otherwise ceases to protect the invention concerned, and that the contract as a whole shall terminate when all the patents under which all such licences were granted and which were in force at the time when the contract became operative, expire, are revoked or otherwise cease to

protect the relevant inventions.

 (2) Nothing in this section shall affect any right to terminate a contract or a condition in a contract independently of this section.

 

Restricted clauses in contracts

 

59. Assignment and devolution of patents by operation of law.

(1) Subject to the provisions of section 39 (7), the rights vested in a patentee or an applicant for a patent shall be capable of assignment and of devolution by operation of law.

(2) Any condition in a contract of employment which—

(a) requires an employee to assign to his employer an invention made by him otherwise than within the course and scope of his employment; or

(b) restricts the right of an employee in an invention made by him more than one year after the termination of the contract of employment, shall be null and void.

 

90. Certain conditions excluded from contracts.

(1) Any condition in a contract relating to the sale of a patented article or to a licence under a patent of which the effect will be—

(a) to prohibit or restrict the purchaser or licensee from purchasing or using any article or class of articles, whether patented or not, supplied or owned by any person other than the seller or licensor or his nominee;

(b) to prohibit or restrict the licensee from using any article or process not protected by the patent;

(c) to require the purchaser or licensee to acquire from the seller, licensor or his nominee any article or class of articles not protected by the patent;

(d) to require or induce the purchaser to observe a specified minimum resale price in respect of any article or class of articles protected by the patent; or

(e) to prohibit or restrict the making, using, exercising or disposing of the invention concerned in any country in which the invention is not patented, shall be null and void.

(2) Nothing in this section shall—

(a) affect any condition in a contract whereby a person is prohibited from selling any goods other than those of a particular person; or

(b) affect any condition in a contract for the lease of or a licence to use a patented article, whereby the lessor or licensor reserves to himself or his nominee the right to supply such new parts of the patented article, other than ordinary articles of commerce, as may be required to put or keep it in repair.

 

Assignment

 

60. Assignment, attachment and hypothecation of patent or application for patent.

(1) (a) An applicant for a patent or a patentee may in writing assign his rights in an application or patent to any other person.

(b) Upon application in the prescribed manner and on payment of the prescribed fee to the registrar, such assignment shall be recorded in the register.

(c) Unless such assignment is so recorded it shall not be valid, except as between the parties thereto.

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COMPETITION ACT:

 

“horizontal relationship” means a relationship between competitors;

 

“vertical relationship” means the relationship between a firm and its suppliers, its customers or both.

 

4.  Restrictive horizontal practices prohibited

(1)  An agreement between, or concerted practice by, firms or a decision by an association of firms, is prohibited if it is between parties in a horizontal relationship and if-

(a)  it has the effect of substantially preventing or lessening competition in a market, unless a party to the agreement, concerted practice, or decision can prove that any technological, efficiency or other pro-competitive, gain resulting from it outweighs that effect; or

(b)  it involves any of the following restrictive horizontal practices:

(i)  directly or indirectly fixing a purchase or selling price or any other trading condition;

(ii)  dividing markets, by allocating customers, suppliers, territories, or specific types of goods or services; or

(iii)  collusive tendering.

 

5.  Restrictive vertical practices prohibited

(1)  An agreement between parties in a vertical relationship is prohibited if it has the elect of substantially preventing or lessening competition in a market, unless a party to the agreement can prove that any technological, efficiency or other pro-competitive, gain resulting from that agreement outweighs that effect.

(2)  The practice of minimum resale price maintenance is prohibited.

(3)  Despite subsection (2), a supplier or producer may recommend a minimum resale price to the reseller of a good or service provided-

(a)  the supplier or producer makes it clear to the reseller that the recommendation is not binding; and

(b)  if the product has its price stated on it, the words “recommended price” appear next to the stated price.

 

7.  Dominant firms

A firm is dominant in a market if-

(a)  it has at least 45% of that market;

(b)  it has at least 35%, but less than 45%, of that market, unless it can show that it does not have market power: or

(c)  it has less than 35% of that market, but has market power.

 

8.  Abuse of dominance prohibited

It is prohibited for a dominant firm to-

(a)  charge an excessive price to the detriment of consumers;

(b)  refuse to give a competitor access to an essential facility when it is economically feasible to do so;

(c)  engage in an exclusionary act, other than an act listed in paragraph (d), if the anti-competitive effect of that act outweighs its technological, efficiency or other pro-competitive, gain; or

(d)  engage in any of the following exclusionary acts, unless the firm concerned can show technological, efficiency or other pro-competitive, gains which outweigh the anti-competitive effect of its act:

(i)  requiring or inducing a supplier or customer to not deal with a competitor;

(ii)  refusing to supply scarce goods to a competitor when supplying those goods is economically feasible;

(iii)  selling goods or services on condition that the buyer purchases separate goods or services unrelated to the object of a contract, or forcing a buyer to accept a condition unrelated to the object of a contract;

(iv)  selling goods or services below their marginal or average variable cost; or

(v) buying-up a scarce supply of intermediate goods or resources required by a competitor.