Quo Vadis Patent Litigation: Ascendis Animal Health (Pty) Limited v Merck Sharpe Dohme Corporation 2020 1 SA 327 (CC) - In Search of the Bigger Picture on Patent Validity

In October 2019 the Constitutional Court (CC) handed down judgment in matter of Ascendis Animal Health (Pty) Limited v Merck Sharpe Dohme Corporation 2020 1 SA 327 (CC). This is its first dealing with validity a patent and, as it concerns issues that go heart law, potentially has far-reaching implications for litigation South Africa.
 At issue was question whether court's finding on one ground revocation hearing ought to have bearing subsequent infringement same patent, extent alleged infringer barred from raising different attack patent. essence, did attempt do so offend principle res judicata? direct appeal after High ruled offend, and Supreme Appeal refused leave appeal. The deadlocked this issue, result decision refusing Ascendis' application amend introduce new stands, judicata objection upheld.
 raises important questions about such cases where Patents Act allows dual proceedings actions, meaning provisions they relate certification claims, broader public interest considerations implicated law adjudication.
 note observes while outcome sends strong signal courts' displeasure at attempts prosecute "repeat litigation", an unsatisfactory patents can apparently be validated basis merely mandatory requirements required by Act. It argues undesirable does not serve interest. because closes door further challenges thousands patents, which would passed test had been subjected substantive examination, remain register.