n Without Prejudice - A five-all draw - Muhlberg's brief

Volume 19 Number 11
  • ISSN : 1681-178X


Apatent case has made it all the way up to the South African Constitutional Court in Ascendis Animal Health (Pty) Limited v Merck Sharpe Dohme Corporation and Others (CCT 212/18) [2019] ZACC 41 (24 October 2019). Reading it, you might think, “Gosh this thing’s jolly complicated”, although by page three it’s possible that you might be using words other than gosh and jolly. But actually it’s quite straightforward; it’s all about the “It’s already been decided, dude” legal principle, res judicata as the good people of Rome called it. More particularly: if a court in a revocation action finds that a patent is novel (and is therefore valid), can the party being sued for infringement of that patent challenge it on grounds of obviousness or inutility?

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