Cipla Agrimed (Pty) Ltd v Merck Sharp Dohme Corporation and Others

Cipla Agrimed (Pty) Ltd was the proprietor of a 1992 patent, while Merck Sharp Dohme Corporation and Merial entities were proprietors and licensee of a 1998 patent relating to injectable veterinary formulations. Cipla applied for revocation of the 1998 patent on grounds of anticipation and obviousness. The revocation application succeeded in the Court of the Commissioner of Patents but was overturned on appeal by the Supreme Court of Appeal, which certified the patent as valid. Thereafter, in pending infringement proceedings, Merck sought and obtained an urgent interim interdict restraining Cipla from infringing the 1998 patent, pending final determination of the infringement action. Cipla appealed against the interim interdict, contending inter alia that the order was final in effect and thus appealable, especially given that the patent would expire before finalisation of the action.

The appeal was struck from the roll with costs, including the costs of two counsel.

The case is significant for its authoritative restatement of South African law on the appealability of interim interdicts, particularly in patent litigation. It clarifies that the mere possibility that an interim interdict may endure for most or all of the remaining life of a patent does not render it final in effect. The judgment reinforces the principle that appealability depends on substance rather than form and provides guidance on the limited circumstances in which interim orders may be treated as final.