LML4801
Assignment 2 Semester 1 2026
Unique number:
Due Date: 14 April 2026
Detailed solutions, explanations, workings
and references.
+27 81 278 3372
, QUESTION 1
Dr Dlamini‟s invention reveals several potential risks relating to novelty,
inventiveness, and patentable subject matter, which may affect both the granting and
future validity (revocation) of the patent.
1. Novelty concerns (section 25(5) and 25(6))
The most immediate risk arises from prior disclosure, particularly Dr Dlamini‟s March
2022 conference presentation in Durban. The abstract was published in publicly
available proceedings, which forms part of the state of the art because it was made
available to the public before the priority date.1
In terms of s 25(5) of the Patents Act 57 of 1978, an invention is not new if it forms
part of the state of the art immediately before the priority date.2 Section 25(6) further
provides that the state of the art includes all matter made available to the public
anywhere in the world by written or oral description.3
Although the abstract only refers to “potential pharmaceutical applications,” South
African law does not require full technical disclosure for novelty to be destroyed;
what is required is that the prior disclosure must anticipate the essential features of
the invention.4
However, an important qualification arises from Merck Sharp Dohme Group v Cipla
Agrimed (Pty) Ltd, where the Supreme Court of Appeal held that prior disclosure
must be enabling in order to destroy novelty.5 Since the conference abstract does
not disclose the nanoparticle encapsulation method, it is unlikely to anticipate the
process claim, although it may still affect the compound claim if sufficiently disclosed.
2. Discovery vs invention (section 25(2))
1
Patents Act 57 of 1978 s 25(6).
2
Patents Act 57 of 1978 s 25(5).
3
Patents Act 57 of 1978 s 25(6).
4
Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA 589 (A).
5
Merck Sharp Dohme Group v Cipla Agrimed (Pty) Ltd 2015 BIP 101 (SCA).
Varsity Cube 2026 +27 81 278 3372
Assignment 2 Semester 1 2026
Unique number:
Due Date: 14 April 2026
Detailed solutions, explanations, workings
and references.
+27 81 278 3372
, QUESTION 1
Dr Dlamini‟s invention reveals several potential risks relating to novelty,
inventiveness, and patentable subject matter, which may affect both the granting and
future validity (revocation) of the patent.
1. Novelty concerns (section 25(5) and 25(6))
The most immediate risk arises from prior disclosure, particularly Dr Dlamini‟s March
2022 conference presentation in Durban. The abstract was published in publicly
available proceedings, which forms part of the state of the art because it was made
available to the public before the priority date.1
In terms of s 25(5) of the Patents Act 57 of 1978, an invention is not new if it forms
part of the state of the art immediately before the priority date.2 Section 25(6) further
provides that the state of the art includes all matter made available to the public
anywhere in the world by written or oral description.3
Although the abstract only refers to “potential pharmaceutical applications,” South
African law does not require full technical disclosure for novelty to be destroyed;
what is required is that the prior disclosure must anticipate the essential features of
the invention.4
However, an important qualification arises from Merck Sharp Dohme Group v Cipla
Agrimed (Pty) Ltd, where the Supreme Court of Appeal held that prior disclosure
must be enabling in order to destroy novelty.5 Since the conference abstract does
not disclose the nanoparticle encapsulation method, it is unlikely to anticipate the
process claim, although it may still affect the compound claim if sufficiently disclosed.
2. Discovery vs invention (section 25(2))
1
Patents Act 57 of 1978 s 25(6).
2
Patents Act 57 of 1978 s 25(5).
3
Patents Act 57 of 1978 s 25(6).
4
Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA 589 (A).
5
Merck Sharp Dohme Group v Cipla Agrimed (Pty) Ltd 2015 BIP 101 (SCA).
Varsity Cube 2026 +27 81 278 3372
