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A patent problem – When the misapplication of law collides with an error of law: Villa Crop Protection (Pty) Ltd v Bayer Intellectual Property GmbH 2023 4 BCLR 461 (CC)
Nomthandazo Mahlangu
Abstract
The judgment in Villa Crop Protection (Pty) Ltd v Bayer Intellectual Property GmbH 2023 4 BCLR 461 (CC) emanates from the order of the Court of the Commissioner of Patents in the High Court of South Africa, Gauteng Division, Pretoria (CoP), that refused Bayer leave to amend its plea. In this matter, Bayer accused Villa of infringing its patent. Refuting the claims, Villa attacked Bayer's patent validity, counterclaimed for its revocation, and subsequently gave notice to amend its pleadings. The CoP refused the application, which marks the point of dispute in this case. This note evaluates whether the CoP correctly exercised its discretion in refusing the application to amend the claim. It further examines issues of law that the Constitutional Court had to resolve, whether (a) the matter is a constitutional matter, (b) it raises an arguable point of law of general public importance, and (c) it is in the interests of justice for leave to appeal to be granted. The note concludes by offering an opinion on whether the decision considered current concerns about our patent system.
