Marine 3 Technologies Holdings (Pty) Ltd v Afri-Group Investments (Pty) Ltd and Another

Marine 3 Technologies Holdings (Pty) Ltd was the patentee of South African Patent No. 2008/10778 relating to a surface active ingredient (surfactant) composition. Du Toit, previously associated with Marine 3, and his company Afri-Group Investments (Pty) Ltd entered into a distribution agreement with Marine 3, which later broke down. Following related litigation, Afri-Group applied for revocation of the patent in terms of s 61 of the Patents Act 57 of 1978, alleging, inter alia, inutility. The Court of the Commissioner of Patents (North Gauteng Division) revoked the patent on the basis that the claimed composition could not be manufactured as described. Marine 3 appealed to the Supreme Court of Appeal.

The appeal was upheld. The order of the Court of the Commissioner of Patents revoking South African Patent No. 2008/10778 was set aside and replaced with an order dismissing the application for revocation.

The case is significant for South African patent law as it clarifies the approach to inutility under s 61(1)(d) of the Patents Act, reinforces the onus on revocation applicants, and affirms a purposive, context-sensitive interpretation of patent claims from the perspective of the skilled addressee. It also emphasises that actual commercial use is strong evidence of utility.