South African Patent Litigation: A Comprehensive Guide for International Disputes

South African patent litigation presents a distinctive landscape that differs significantly from other major jurisdictions, offering both opportunities and challenges for international patent holders. In our experience advising clients on cross-border intellectual property disputes, we find that understanding South Africa's centralised court system and non-examination patent grant process is crucial for developing effective enforcement strategies in this important African market.

This guide examines the practical realities of patent protection and enforcement in South Africa, drawing on our expertise in technical analysis and expert witness support across multiple jurisdictions. Whether you are considering patent registration, facing potential infringement, or developing a comprehensive African intellectual property strategy, this article provides the foundation you need.

Important: This article provides general information about South African patent litigation for educational purposes. It does not constitute legal advice. Patent litigation involves complex legal and procedural requirements that vary by jurisdiction and circumstance. Always consult qualified South African patent attorneys for advice specific to your situation.

South African Patent System Overview

The foundation of South African patent law rests on the Patents Act No. 57 of 1978, which established the country's current patent framework and continues to govern patent rights and enforcement today.¹ Assented to on 26 April 1978 and commencing on 1 January 1979, this comprehensive legislation is organised into 16 chapters covering administration, patent registration, applications, licensing, infringement, and enforcement.² The Act has undergone substantial amendments in 1979, 1983, 1986, 1988, 1996, 1997, 2001, 2002, 2005, and 2008, reflecting evolving intellectual property protections aligned with international standards.³

Legal Framework and International Treaties

South Africa's patent system operates within the country's broader legal framework, which incorporates Roman Dutch law principles, distinguishing it from pure common law jurisdictions like the United States and United Kingdom.⁴ The Act's structure and enforcement mechanisms reflect principles of property rights and contractual obligations characteristic of the South African common law tradition.⁵

The country maintains strategic membership in several international patent treaties, including:

• Paris Convention for the Protection of Industrial Property — providing priority rights for international applicants
• Patent Cooperation Treaty (PCT) — enabling centralised international filing through WIPO
• TRIPS Agreement — establishing minimum standards for intellectual property protection

South Africa's PCT membership enables international applicants to file through WIPO's centralised system, with the Companies and Intellectual Property Commission (CIPC) in Pretoria serving as the designated national office.⁷ These international commitments provide multiple routes for international applicants seeking patent protection in South Africa whilst ensuring South African inventors can access global protection mechanisms.⁸

The Non-Examination System

One of the most distinctive features of the South African patent system is its non-examination approach to patent grants. South Africa operates what is effectively a "registration system" where the Companies and Intellectual Property Commission (CIPC) only verifies formal documentation requirements, not the substance of the invention.⁹

Unlike most developed patent systems, South Africa grants patents upon meeting formal requirements without conducting substantive examination for novelty, inventive step, or industrial applicability.¹⁰ This approach means that patent validity is only tested when challenged during enforcement proceedings or revocation actions, creating a unique dynamic in patent litigation.

Key implications of the non-examination system:

Aspect	Impact
Speed of grant	Patents obtained quickly without examination delays
Cost of filing	Lower prosecution costs than examination systems
Patent quality	Uncertain until tested in litigation
Enforcement burden	Patentee must prove validity, not just infringement
Strategic risk	Invalid patents may be granted and later revoked

The Patents Act establishes several key requirements for patent protection. Inventions must be new, involve an inventive step, and be industrially applicable.¹¹ An invention is considered new and based on an inventive step only if the same idea has not been expressed in writing, orally, practically, or any other way prior to the priority date.¹² However, as these criteria are not examined during the grant process, they become critical battlegrounds in litigation proceedings.

The responsibility for ensuring an application's validity resides entirely with the applicant, who must conduct their own patent searches to investigate novelty and identify conflicting prior patent specifications.¹³

Statutory Exclusions and Patent Term

The Act provides specific exclusions from patentability, including:

• Discoveries, scientific theories, and mathematical methods
• Computer programs as such
• Business methods
• Purely biological processes
• Methods of treatment of the human or animal body

These exclusions align with international patent practice whilst reflecting South Africa's specific legislative approach to emerging technologies. Patents are granted for 20 years from the filing date of the non-provisional patent application, consistent with international standards.¹⁵

Court Structure and Jurisdiction

The South African patent litigation system centres around a highly specialised and centralised court structure that eliminates many jurisdictional complexities found in other systems.

The Court of the Commissioner of Patents

All patent matters in South Africa are adjudicated by the Court of the Commissioner of Patents, which serves as the exclusive court of first instance for patent disputes with nationwide jurisdiction.¹⁶ This specialised court cannot be bypassed by parties seeking an alternative forum, ensuring consistent application of patent law nationwide.¹⁷

This specialised court operates as a division of the High Court, specifically within the Gauteng Division, and is constituted with High Court judges acting in their capacity as Commissioner.¹⁸ The court has issued 43 recorded decisions as of March 2025, with documented cases from 2005 onwards involving major pharmaceutical and technology companies, including landmark decisions in Pfizer Ltd v Cipla Medpro (2005) and recent cases involving Bayer, Astellas Pharma, and Microsoft.¹⁹

Judicial Decision-Making

Patent cases are decided by a single Superior Court judge appointed ad hoc from the Superior Court bench, bringing specialised knowledge and experience to patent matters.²⁰ Unlike some jurisdictions, South African patent litigation does not involve juries in standard proceedings.²¹

The Commissioner of Patents retains the statutory authority to appoint technical assessors to assist in particularly complex technical matters, providing consultative expertise whilst leaving all judicial decisions to the judge.²² An assessor's function is purely consultative—assisting the judge in understanding complex scientific and technical evidence whilst maintaining judicial independence.

Advantages of the Centralised System

The court structure creates several advantages for patent litigation:

1. Consistency — Ensures uniform patent law interpretation and application across all cases
2. Specialisation — Concentrates patent expertise within a judiciary that develops deep familiarity with patent law nuances
3. No forum shopping — Eliminates the strategic venue selection that complicates patent litigation in jurisdictions with multiple court options

The court's decisions establish binding precedent for patent law interpretation in South Africa, creating a coherent body of jurisprudence that guides future patent litigation.²³ This specialised approach has produced significant case law, including the Supreme Court of Appeal decision in South African Druggists Ltd v Pfizer Inc. (1989), which established precedent regarding patent term extensions and the Commissioner's authority.²⁴

Appeals Process

Appeals from the Court of the Commissioner of Patents follow standard South African appellate procedures under the Superior Courts Act No. 10 of 2013, which consolidated and amended laws relating to the Constitutional Court, Supreme Court of Appeal, and High Court of South Africa.²⁵

The Superior Courts Act, which came into force on 23 August 2013, rationalises the court structure and makes provision for the administration of judicial functions across the superior courts.²⁶ This appeals process maintains the specialised nature of patent adjudication whilst ensuring proper oversight and consistency with broader South African jurisprudence, as demonstrated in landmark appeals such as South African Druggists Ltd v Pfizer Inc. (1989) and Novartis v Cipla Medpro (2018).²⁷

Registration vs Examination: What This Means for Litigation

South Africa's approach to patent examination represents one of the most significant distinctions from international patent practice. Understanding this difference is essential for anyone involved in South African patent disputes.

How the Registration System Works

Under the South African system, patents are granted automatically upon meeting formal requirements, including proper application forms, payment of fees, and basic disclosure requirements. No substantive examination occurs to determine whether the claimed invention meets the statutory requirements of novelty, inventive step, and industrial applicability.

This approach contrasts sharply with examination systems used in the United States, United Kingdom, European Patent Office, and most other developed patent systems.

Practical Implications

Advantages for applicants:

• Patents can be obtained quickly and inexpensively
• Makes patent protection accessible to smaller inventors and companies with limited resources
• Eliminates the lengthy prosecution delays common in examination-based systems
• Allows inventors to secure patent rights rapidly

Risks and challenges:

• Patent quality is uncertain until tested in litigation
• Patents that would never survive examination elsewhere may be granted in South Africa
• Shifts the burden of patent quality assessment from the patent office to the courts
• Creates unique litigation risks for both patentees and defendants

Impact on Litigation Strategy

For international practitioners, understanding this system is crucial when advising clients on global patent strategy. South African patents may provide valuable territorial coverage, but their enforceability remains uncertain until validated through litigation or left unchallenged.

The registration system also impacts the types of evidence and arguments presented in South African patent litigation:

Examination Systems	South African System
Prosecution history guides claim construction	No file history exists
Patents enjoy presumption of validity	Validity must be proven from first principles
Prior art considered during examination	Prior art evaluated for first time in court
Narrowing amendments documented	No prosecution amendments to consider

Courts must evaluate patentability from first principles, often requiring extensive expert testimony on technical and legal issues that might be resolved through examination in other jurisdictions.

Procedural Requirements and Litigation Process

South African patent litigation follows specific procedural requirements established by the Patents Act and supplemented by the Uniform Rules of Court where the Act provides no specific guidance.

Standing to Sue

Standing to bring patent infringement proceedings in South Africa follows specific statutory requirements under the Patents Act. Whilst the complete scope of standing rules requires consultation with the full text of Chapter XI of the Patents Act, established practice limits standing to patent holders and certain categories of licensees.

Initiating Proceedings

The litigation process typically begins with the filing of a summons in the Court of the Commissioner of Patents, following standard High Court procedures adapted for patent matters. Plaintiffs must establish both:

1. The validity of their patent — not presumed due to the non-examination grant process
2. Infringement by the defendant — that the defendant's actions fall within the patent claims

Discovery Procedures

Discovery procedures in South African patent litigation follow the country's general civil procedure rules under Rule 35 of the Uniform Rules of Court, allowing parties to obtain relevant documents and information from opposing parties.²⁸ The discovery process often proves crucial in patent cases, particularly for:

• Establishing the scope of alleged infringement
• Gathering evidence for validity challenges
• Obtaining technical documentation about accused products or processes
• Understanding the defendant's knowledge of the patent

Expert Evidence

Expert testimony plays a central role in South African patent proceedings, given the technical nature of patent law and the absence of examination file history to guide courts on technical issues.

Court requirements for experts: As established in the Supreme Court of Appeal case I O Tech Manufacturing (Pty) Ltd v Gallagher Group Ltd (2013), general qualifications in a field of engineering are insufficient—expert witnesses must demonstrate particular expertise in the specific technology covered by the patent.²⁹

Both parties typically present expert evidence on:

• Claim construction
• Infringement analysis
• Validity challenges

Experts are often required to meet under court direction to narrow technical disputes before trial.³⁰

Interim Relief and Anton Piller Orders

Interim relief procedures are available in appropriate cases, including preliminary injunctions and Anton Piller orders for preserving evidence.

Anton Piller orders are particularly powerful ex parte remedies that allow one party to search and seize critical evidence without prior notice to the respondent.³¹ These orders are frequently used in intellectual property cases, including patent infringement, where there is a clear risk of evidence destruction.³²

Requirements for Anton Piller orders:

1. A valid cause of action with serious intention to pursue it
2. Prima facie evidence of a strong case likely to succeed
3. Proof that the respondent possesses the specific evidence sought
4. Clear risk of serious harm or evidence destruction if notice is given
5. Likelihood that evidence will be hidden or destroyed without immediate action³³

Enforcement Challenges and Strategies

Patent enforcement in South Africa presents unique challenges that reflect both the distinctive features of the patent system and broader considerations affecting intellectual property litigation in developing markets.

Primary Challenges

Validity uncertainty: The non-examination patent system creates the primary enforcement challenge, as patent validity remains uncertain until tested in court. Patent holders must be prepared to prove not only infringement but also the basic validity of their patents, including novelty and inventive step analysis that would typically be resolved during examination.

Cost considerations: Whilst patent litigation costs are generally lower than in developed markets like the United States or United Kingdom, they remain substantial relative to the South African market size and typical damages awards. This economic reality influences both the types of cases that are commercially viable and the settlement dynamics in patent disputes.

Market structure: The concentrated market structure in many South African industries creates both opportunities and challenges for patent enforcement:

Concentrated Markets	Fragmented Markets
More predictable enforcement	Complex and expensive enforcement
Fewer defendants to pursue	Many smaller participants
Larger individual infringers	Difficult to justify litigation costs

Alternative Dispute Resolution

Alternative dispute resolution mechanisms, including mediation and arbitration, are increasingly important in South African patent disputes. Whilst not mandatory without prior agreement, parties often explore these alternatives due to:

• High costs associated with patent litigation
• Lengthy timelines for court proceedings
• Ability to select arbitrators with relevant technical expertise
• Confidentiality benefits

Strategic Considerations

Regional strategy: South Africa's position as the gateway to African markets makes it strategically important beyond its domestic market size. Companies using South Africa as a base for African expansion need comprehensive patent protection to support broader regional business strategies.

Enforcement timing: Patent holders must balance early enforcement to establish strong precedents against waiting for more developed infringement scenarios that justify litigation costs. This is particularly important given the country's developing pharmaceutical and technology sectors.

Cross-border coordination: Cross-border enforcement strategies are increasingly important as South African companies expand into other African markets and international companies seek to enforce patents across multiple African jurisdictions. Coordinating South African patent enforcement with actions in other countries requires careful consideration of different legal systems and procedural requirements.

The Role of Technical Experts

The role of technical experts in South African patent litigation is particularly crucial due to the unique characteristics of the non-examination patent system. In our experience, expert testimony often determines the outcome of patent cases, making expert selection and preparation critical to successful litigation strategy.

Functions of Technical Experts

Claim construction: Experts help courts understand the technical scope and meaning of patent claims in light of the specification and relevant prior art. This function is especially important in South Africa, where no examination file history exists to guide claim interpretation.

Infringement analysis: Experts compare the technical features of accused products or processes with the claimed invention. This analysis requires deep technical understanding and the ability to communicate complex technical concepts clearly to non-technical judges.

Validity analysis: Experts evaluate claimed inventions against prior art to determine whether they meet the statutory requirements of novelty, inventive step, and industrial applicability. In examination-based systems, much of this analysis occurs during patent prosecution. In South Africa, it happens for the first time during litigation.

Court Requirements for Expert Qualification

South African courts have established specific and stringent requirements for expert evidence in patent cases. As reinforced by the Supreme Court of Appeal in I O Tech Manufacturing (Pty) Ltd v Gallagher Group Ltd (2013):

General qualifications in a field of engineering are insufficient—expert witnesses must demonstrate particular expertise in the specific technology covered by the patent.

Courts reject evidence from otherwise qualified professionals who have not established expertise in the particular field of technology in question, ensuring that expert testimony directly addresses the technical issues at stake.

Technical Expertise Infrastructure

This rigorous approach to expert qualification reflects the broader technical expertise infrastructure in South Africa's patent system. The country's Patent Examination Board, established under the Patents Act 57 of 1978, comprises members with technical and scientific expertise who appoint examiners from various intellectual property disciplines.

Candidates for patent examination roles must hold at least a three-year technical or scientific diploma or degree, with adequate practical experience, establishing a baseline for technical competency in patent matters.

Expert Meetings and Technical Assessors

Expert meetings: Expert meetings are commonly ordered by South African courts to narrow technical disputes and identify areas of agreement between opposing experts. These meetings can significantly streamline patent trials by:

• Eliminating undisputed technical issues
• Focusing court attention on genuine areas of disagreement
• Reducing trial length and costs

Technical assessors: The Commissioner of Patents retains statutory authority to appoint independent technical assessors to assist the court in particularly complex technical matters. An assessor's function is purely consultative—assisting the judge in understanding complex scientific and technical evidence whilst leaving all judicial decisions to the judge.

This arrangement provides particular value in cases involving multiple scientific experts and highly complex technical issues, ensuring judges have access to specialised knowledge without compromising judicial independence.

Selecting Experts for South African Litigation

International practitioners must carefully consider expert selection for South African patent litigation:

Local Experts	International Experts
Understand the legal system	May be necessary for highly specialised fields
Communicate effectively with South African judges	Bring cutting-edge technical knowledge
Familiar with local practice	Limited local expertise in some areas
Cost-effective	May require additional preparation

Regional Context: ARIPO, OAPI, and Continental Strategy

Understanding South Africa's position within the broader African intellectual property landscape is essential for developing comprehensive patent strategies that extend beyond South African borders.

South Africa's Independent Position

South Africa is notably not a member of either the African Regional Intellectual Property Organisation (ARIPO) or the Organisation Africaine de la Propriété Intellectuelle (OAPI), the two major regional patent systems operating in Africa. Instead, South Africa maintains its own independent patent office, requiring direct national filing rather than regional application through these organisations. This independent position aligns South Africa with Nigeria, which similarly operates outside the regional framework.

ARIPO Overview

ARIPO, operating under the Harare Protocol on Patents, provides patent protection across 22 primarily English-speaking African countries through a single regional application system. The organisation handles patents, trade marks, plant varieties, and traditional knowledge through various protocols including the Harare, Banjul, and Arusha Protocols.

Key ARIPO characteristics:

• Single application covers multiple member states
• Selective designation available
• Some member states (Liberia, Rwanda, Uganda) exclude pharmaceutical products from patent protection
• Administrative instructions and examination guidelines govern procedure

OAPI Overview

OAPI operates under the Bangui Agreement and covers 17 member states in West Africa, Central Africa, and the Indian Ocean region:

Benin, Burkina Faso, Cameroon, Central African Republic, Chad, Comoros, Congo, Côte d'Ivoire, Equatorial Guinea, Gabon, Guinea, Guinea-Bissau, Mali, Mauritania, Niger, Senegal, and Togo.

OAPI provides centralised procedures for patents, trade marks, industrial designs, and geographical indications, with applications automatically covering all member states without selective designation options.

Strategic Implications

Comprehensive African coverage: International applicants seeking comprehensive African coverage must file separately in South Africa whilst also pursuing regional protection through ARIPO and/or OAPI as appropriate. This requirement increases costs and complexity but also provides strategic flexibility in timing and approach.

South Africa as priority market: For pharmaceutical and technology companies, South Africa's position as the continent's most developed economy makes it a priority market regardless of regional system membership. The country's sophisticated legal system and established patent litigation framework provide more predictable enforcement mechanisms than many other African jurisdictions.

Patent family coordination: The relationship between South African patent law and regional systems becomes particularly important for multinational patent families. Patent prosecution strategies must account for different examination standards, procedural requirements, and enforcement mechanisms across these systems.

Future developments: Recent developments in African intellectual property policy, including discussions about continental IP harmonisation and the African Continental Free Trade Area's intellectual property implications, may affect the strategic importance of South African patent protection in the future. However, South Africa's independent system is likely to remain significant given the country's economic importance and established legal framework.

Comparison with UK and US Patent Systems

The differences between South African patent litigation and the systems operating in the United Kingdom and United States highlight the unique characteristics of South African patent law and provide important context for international practitioners managing global patent portfolios.

Court Structure and Jurisdiction

The most striking difference lies in court structure and jurisdiction:

Jurisdiction	Court Structure	Forum Shopping
South Africa	Single specialised court (Commissioner of Patents)	Not possible
United Kingdom	Specialised IP courts within High Court system	Limited options
United States	Multiple federal district courts	Significant opportunity

South Africa's centralisation provides advantages in consistency and specialisation that are more difficult to achieve in distributed systems. UK patent litigation benefits from specialised IP judges but still faces some variation between different High Court locations. US patent litigation suffers from significant forum shopping issues, with certain districts becoming preferred venues due to perceived advantages in speed, damages awards, or procedural approaches.

Decision-Making Bodies

South Africa employs a judge-only system with single Superior Court judges appointed ad hoc to patent cases. This approach aligns more closely with UK practice, where specialised judges handle patent matters without juries. The US system's use of juries for patent cases creates additional complexity and unpredictability that is absent from both South African and UK systems.

The appointment of technical assessors in South Africa provides flexibility for handling complex technical matters, similar to powers available to UK courts. US courts rely primarily on expert testimony and jury instructions to address technical complexity.

Patent Examination and Validity

The most fundamental difference lies in patent examination approaches:

System	Examination	Validity Presumption
South Africa	No substantive examination	Must prove validity
United Kingdom	Rigorous EPO examination	Strong presumption
United States	USPTO examination	Strong presumption

This difference profoundly affects litigation strategy and outcomes. In examination-based systems, patents enjoy a stronger presumption of validity, having survived initial scrutiny for patentability requirements. South African patents lack this presumption, requiring patent holders to prove validity from first principles during enforcement proceedings.

The absence of examination file history in South Africa eliminates the claim construction guidance that prosecution history provides in UK and US litigation. This requires different approaches to claim interpretation and increases the importance of intrinsic evidence from patent specifications.

Standing and Party Rights

Standing requirements differ significantly across the three systems:

• South Africa — Restricts standing to patent holders and registered licensees of right
• United Kingdom — Exclusive licensees generally have standing; ordinary licensees may not
• United States — Various licensees may have standing rights

Timelines and Costs

Litigation timelines and costs vary considerably:

Aspect	South Africa	United Kingdom	United States
Timeline	Generally faster	Moderate	Often lengthy
Discovery	Limited	Moderate	Extensive
Overall cost	Lowest	Moderate	Highest
Damages awards	Lower	Moderate	Highest

US patent litigation is typically the most expensive due to extensive discovery procedures, jury trials, and high damages awards. UK litigation costs are generally moderate, whilst South African costs are typically the lowest of the three systems, though still substantial relative to the local market.

Enforcement Mechanisms and Remedies

All three systems provide similar basic enforcement mechanisms, including injunctive relief and damages awards. However, the calculation and availability of remedies differ substantially:

• US damages awards tend to be the highest, reflecting market size and established precedents for reasonable royalty and lost profits calculations
• UK damages awards are typically moderate
• South African awards tend to be lower, reflecting market size and economic conditions

Strategic Implications for International Patent Holders

Understanding the distinctive features of South African patent litigation provides several strategic insights for international patent holders managing global intellectual property portfolios.

Portfolio Development

Prosecution strategy: The non-examination nature of South African patent grants suggests different prosecution strategies may be appropriate compared to examination-based systems. Patent applicants may consider filing broader claims in South Africa, knowing that they will not face examination rejection but understanding that broader claims face higher invalidity risks if challenged in litigation.

Cost-benefit analysis: The relatively low cost of obtaining South African patents makes the jurisdiction attractive for comprehensive portfolio coverage, particularly for inventions that may have uncertain commercial value. The ability to obtain patents quickly and inexpensively allows applicants to secure territorial coverage whilst market potential develops.

Enforcement Considerations

Case selection: The centralised court system and specialised judges create opportunities for consistent enforcement outcomes that may be less predictable in systems with distributed jurisdiction. However, the uncertain validity of South African patents requires:

• Careful case selection
• Thorough preparation for validity challenges
• Realistic assessment of patent strength before committing to litigation

Cross-border coordination: Cross-border enforcement coordination becomes crucial when South African patent rights are part of broader international patent families. The different procedural timelines and requirements across jurisdictions require careful scheduling and resource allocation to maximise enforcement effectiveness.

Regional Market Integration

South Africa's position as the gateway to African markets makes patent protection in the country strategically important beyond its domestic market size. Companies using South Africa as a base for African expansion need comprehensive patent protection to support broader regional business strategies.

The independent nature of South African patent law, separate from ARIPO and OAPI systems, requires dedicated attention and resources but also provides strategic flexibility in enforcement timing and approach across different African markets.

Critical Mistakes to Avoid

Based on our experience supporting patent litigation across multiple jurisdictions, we have identified several critical mistakes that international patent holders should avoid in South African patent matters:

Before Filing

1. Assuming examination validates your patent — South African patents are not examined for validity; conduct your own prior art searches
2. Filing claims too narrow — Consider the non-examination system when drafting claims, but balance breadth against validity risk
3. Ignoring South Africa in African strategy — Despite not being in ARIPO or OAPI, South Africa is often the most important African market

During Litigation

1. Underestimating validity challenges — Be prepared to prove validity from first principles
2. Selecting unqualified experts — Courts require specific technical expertise, not general qualifications
3. Applying US or UK procedural assumptions — South African procedure differs significantly
4. Ignoring expert meeting opportunities — These can significantly narrow disputes and reduce costs

Strategic Errors

1. Treating South African patents as equivalent to examined patents — They require different enforcement strategies
2. Failing to coordinate with regional enforcement — Consider ARIPO and OAPI territories in overall strategy
3. Underestimating cost-benefit dynamics — South African damages awards may not justify expensive litigation

Conclusion

South African patent litigation presents a unique and sophisticated framework that differs significantly from other major patent jurisdictions whilst offering valuable opportunities for international patent holders.

We have examined how the Court of the Commissioner of Patents provides consistent and specialised adjudication that eliminates forum shopping whilst concentrating expertise in patent matters. The non-examination system creates uncertainty about patent validity that must be balanced against the cost and speed advantages of obtaining patent protection.

Key takeaways:

• South Africa operates a registration system without substantive patent examination
• The Court of the Commissioner of Patents provides centralised, specialised adjudication
• Patent validity must be proven during litigation, not presumed from grant
• Technical expert evidence is crucial and subject to stringent qualification requirements
• South Africa sits outside ARIPO and OAPI but remains the most important African market
• Different strategic approaches are required compared to UK and US systems

For international patent holders, success in South African patent litigation requires understanding not only the technical and legal requirements but also the broader strategic context of African market development and cross-border enforcement coordination. The investment in understanding these distinctive features pays dividends in more effective patent protection and enforcement across this dynamic and growing market.

---

Sources

1. Patents Act No. 57 of 1978 (South Africa), SAFLII — Primary legislation governing South African patent law
2. Law Library, "Patents Act, 1978" https://lawlibrary.org.za/akn/za/act/1978/57/eng@1983-06-01 — Consolidated text of the Patents Act
3. SAFLII, "Patents Act 1978" https://www.saflii.org/za/legis/consol_act/pa1978109/ — Amendments history
4. Mondaq, "South Africa Patent Litigation Comparative Guide" (2024) — Overview of South African patent litigation practice
5. Acts Online, "Patents Act 1978" http://www.acts.co.za/patents-act-1978/ — Commentary on patent law provisions
6. WIPO, "States Party to the PCT and the Paris Convention" https://www.wipo.int/pct/en/paris_wto_pct.html — South Africa's international treaty memberships
7. WIPO, "PCT Applicant's Guide South Africa" https://pctlegal.wipo.int/eGuide/view-doc.xhtml?doc-code=ZA&doc-lang=en — PCT filing procedures for South Africa
8. WIPO, "States Party to the PCT and the Paris Convention and Members of the World Trade Organization" — Treaty status information
9. Law Guide, "South African Patent System" https://lawguide.co.za/south-african-patent-system/ — Explanation of non-examination system
10. Wikipedia, "South African patent system" https://en.wikipedia.org/wiki/South_African_patent_system — Overview of registration approach
11. Law Library, "Patents Act, 1978 - Section 25" https://lawlibrary.org.za/akn/za/act/1978/57/eng@1996-10-04/provision/chp_V__sec_25 — Patentability requirements
12. Ibid. — Novelty and inventive step definitions
13. Law Guide, "South African Patent System" (supra note 9) — Applicant responsibility for validity
14. Law Library, "Patents Act, 1978 - Section 25" (supra note 11) — Statutory exclusions from patentability
15. Law Guide, "South African Patent System" (supra note 9) — Patent term information
16. SAFLII, "South Africa: Court of the Commissioner of Patents" https://www.saflii.org/za/cases/ZACCP/ — Court jurisdiction and decisions
17. ICLG, "Patent Laws and Regulations South Africa 2025" https://iclg.com/practice-areas/patents-laws-and-regulations/south-africa — Exclusive jurisdiction of Commissioner's Court
18. Lexology, "At a glance: patent enforcement proceedings in South Africa" (2024) — Court structure and constitution
19. SAFLII, "Recent South Africa: Court of the Commissioner of Patents Decisions" https://www.saflii.org/za/cases/ZACCP/recent.html — Case law database
20. Mondaq, "South Africa Patent Litigation Comparative Guide" (2024) (supra note 4) — Judicial appointment procedures
21. Ibid. — Absence of jury trials
22. Patents Act No. 57 of 1978, s. 75 — Technical assessor appointment authority
23. SAFLII, "South Africa: Court of the Commissioner of Patents" (supra note 16) — Precedential value of decisions
24. SAFLII, "South African Druggists Ltd. v Pfizer Inc. (612/87) 1989 ZASCA 65 (26 May 1989)" https://www.saflii.org/za/cases/ZASCA/1989/65.html — Landmark Supreme Court of Appeal decision
25. Superior Courts Act No. 10 of 2013, s. 3 — Appeals structure
26. Law Library, "Superior Courts Act, 2013" https://lawlibrary.org.za/akn/za/act/2013/10 — Court system rationalisation
27. SAFLII, "Novartis v Cipla Medpro (Pty) Ltd (728/17) 2018 ZASCA 64" https://www.saflii.org/za/cases/ZASCA/2018/64.html — Recent appellate decision
28. Uniform Rules of Court (South Africa), Rule 35 — Discovery procedures
29. Mondaq, "Patent Infringement: The Pitfalls Of Expert Witnesses" https://www.mondaq.com/southafrica/patent/288074/ — Expert qualification requirements
30. Lexology, "Patent infringement: the pitfalls of expert witnesses" https://www.lexology.com/library/detail.aspx?g=30729357-7fa7-4d49-b310-3b37afb77f23 — Expert meeting procedures
31. Swart Law, "Drastic, but effective: Anton Piller orders" https://www.swart.law/post.aspx?id=104 — Anton Piller order requirements
32. CUPA Law, "What is an Anton Piller Order and Why You Might Need One" https://cupalaw.co.za/what-is-an-anton-piller-order-and-why-you-might-need-one/ — Application in IP cases
33. Ibid. — Requirements for obtaining Anton Piller orders
34. Gunter Attorneys, "ARIPO - African Regional Intellectual Property Organisation" https://gunterattorneys.com/aripo/ — South Africa's non-membership
35. Ibid. — Independent patent office requirement
36. Ibid. — Nigeria comparison
37. Wikipedia, "African Regional Intellectual Property Organization" https://en.wikipedia.org/wiki/African_Regional_Intellectual_Property_Organization — ARIPO structure
38. ARIPO, "About ARIPO" https://www.aripo.org/ — Organisational overview
39. ARIPO, "Patents" https://www.aripo.org/ip-services/patents — Harare Protocol details
40. OAPI, "Home - OAPI" https://oapi.int/en/ — OAPI member states
41. WIPO Lex, "Bangui Agreement on the Creation of an African Intellectual Property Organization, Act of December 14, 2015" https://www.wipo.int/wipolex/en/legislation/details/20949 — Bangui Agreement provisions
42. The DTIC, "Patent Examination Board" https://www.thedtic.gov.za/legislation/legislation-and-business-regulation/statutory-committees/patent-examination-board/ — Technical expertise requirements
43. Ibid. — Examiner qualification standards
44. Practice Direction, High Court of South Africa — Procedural guidance
45. ALRC, "Role of assessors in patent cases" https://www.alrc.gov.au/publication/genes-and-ingenuity-gene-patenting-and-human-health-alrc-report-99/10-the-role-of-courts-and-tribunals-in-patent-disputes/role-of-assessors-in-patent-cases/ — Assessor role comparison
46. Chambers Practice Guides, "Patent Litigation 2025: South Africa" — Procedural timelines
47. Lexology, "Unlocking IP protection - Your essential guide to IP enforcement in South Africa" (2024) — Enforcement overview
48. ICLG, "Patent Laws and Regulations South Africa 2025" (supra note 17) — Cost and procedure comparison