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De Beers Industrial Diamond Division (Pty) Ltd v Ishizuka [1980] 3 All SA 447 (1980 (2) SA 191) (T) 404 EnsignBickford (SouthAfrica) (Pty) Ltd and others v AECI Explosives & Chemicals Ltd [1998] 4 All SA 453 (1999 (1) SA 70) (SCA) 420 Gentiruco AG v Firestone SA (Pty) Ltd [1972] 1 All SA 201 (1972 (1) SA 589) (A) 383 Jaga v Dönges NO and another; Bhana v Dönges NO and another [1950] 4 All SA 414 (1950 (4) SA 653) (A) 404 Monsanto Co v MDB Animal Health (Pty) Ltd (formerly MD Biologics CC) [2001] JOL 7939 (2001 (2) SA 887) (SCA) 404 Power Steel Construction Co (Pty) Ltd v African Batignolles Construction (Pty) Ltd 1955 (4) SA 215 (A) 383 Schlumberger Logelco Inc v Coflexip SA [2002] JOL 10174 (2003 (1) SA 16) (SCA) 420 Stauffer Chemical Co and another v Safsan Marketing & Distribution Co (Pty) Ltd and others 1987 (2) SA 331 (A) 383 VariDeals 101 (Pty) Ltd v Sunsmart Products (Pty) Ltd [2007] JOL 20698 (SCA) ([2007] SCA 123 (RSA)) 405 United Kingdom Glaverbel SA v British Coal Corporation and another 1995 RPC 255 (CA) 407 KirinAmgen Inc and others v Hoecsht Manon Róusel and others [2005] 1 All ER 667 (HL) 405 Mölnlycke AB and another v Procter & Gamble Ltd and others (5) (1994) RPC 49 (CA) 420 Page 383 of [2009] 1 All SA 381 (T) Judgment MURPHY J: [1] The plaintiff is the proprietor of patent 2002/1924, which is for an invention entitled "Communication Systems". He has instituted action in the Court of the Commissioner of Patents for an interdict restraining the defendants from infringing or aiding and abetting the infringement of the patent. Section 45(1) of the Patents Act 57 of 1978 ("the Act") provides that the effect of a patent is to grant the patentee, for the duration of the patent, the right to exclude other persons from making, using, exercising, disposing or offering to dispose of or importing the invention defined in the claims of the patent, so that he will enjoy the whole profit and advantage accruing by reason of the invention. [2] The first defendant is Vodacom (Pty) Ltd and the second defendant is Vodacom Service Provider Company (Pty) Ltd. The first defendant constructs and maintains a GSM cellular network in South Africa. The second defendant is a cellular service provider that utilises the first defendant's cellular network. Throughout the trial the defendants were referred to collectively as "Vodacom". As relief is sought against them jointly arising out of the same alleged conduct there is no objection to referring to them as such, and I will do likewise in this judgment. [3] Vodacom denies that it has infringed the plaintiff 's patent through use of the plaintiff's invention in its products, services and/or intelligent communication network methods and systems; and claimed further that the patent was in any event invalid for lack of novelty and for being obvious. It raised two other defences in its plea, namely: the invention of the patent is not patentable in terms of section 25(2)(e) of the Act in that it consists of a scheme, rule or method for performing a mental act or doing business; and further that the claims of the complete specification are not fairly based on the matter disclosed in the specification. It became evident at the conclusion of the trial that Vodacom did not persist with the latter two defences. Nothing further therefore need be said about them. [4] In order to decide whether Vodacom's products and services etcetera infringe the patent it is necessary to determine what the essential integers or features of the claims of the patent are; the precise scope of the invention or monopoly being defined by the claims of the patent specification. If all the essential integers of a claim are present in the targeted Vodacom products, such will infringe the patent (Stauffer Chemical Co and another v Safsan Marketing & Distribution Co (Pty) Ltd and others 1987 (2) SA 331 (A) at 347AD). The task at hand, thus, is to ascertain what the language used in the specification means. The specification must be construed like any other document, mindful of the objects of the specification and its several parts (Power Steel Construction Co (Pty) Ltd v African Batignolles Construction (Pty) Ltd 1955 (4) SA 215 (A) at 224A). The claims of a patent specification do not constitute a separate document in any sense, but remain part of a specification which should be interpreted as a whole. Every portion of the specification is to be read with reference to the other portions of the document whether they precede or follow (Gentiruco AG v Firestone SA

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Murray v Vodacom (Pty) Ltd and another [2009] 1 All SA 381 (T)

Case Law

Country

South Africa

Country Location

Latitude: -28.58043087631903

Longitude: 24.820993917210945

Country Location (Lié Case Law): South Africa

Decision Date: 21 mai 2008

Case Status: Affaire Résolue

Case Outcome (Procedural)

Affirmed Lower Court
Dismissed

Case Outcome (Disposition)

Judgment in Favor of Defendant

Keywords

Intellectual Property

Judicial Body: Administrative Court

Court Name: Transvaal Provincial Division

Case Number: 2002/1924

Case Summary: In an action before the Court of the Commissioner of Patents, the plaintiff sought an interdict restraining the defendants from infringing or aiding and abetting the infringement of a patent of which he was the proprietor. The defendants denied that they had infringed the plaintiff's patent through the use of the plaintiff's invention in their products or services, and claimed further that the patent was invalid for lack of novelty and for being obvious. Held Section 45(1) of the Patents Act 57 of 1978 ("the Act") provides that the effect of a patent is to grant the patentee, for the duration of the patent, the right to exclude other persons from making, using, exercising,disposing or offering to dispose of or importing the invention defined in the claims of the patent, so that he will enjoy the whole profit and advantage accruing by reason of the invention. In order to decide whether the defendants' products and services infringed the patent, the Court had to determine what the essential features of the claims of the patent were. If all the essential features of the claim were present in the targeted products of the respondents, the conclusion would be that the patent was infringed. In other words, whether or not a plaintiff has proved an infringement of his patent turns upon a comparison between the article or process, involved in the alleged infringement and the words of the claims in the patent. The onus was on the plaintiff to prove infringement. The Court set out the correct approach to interpreting a patent for the purposes of determining infringement or invalidity. It pointed out that our law of interpretation has moved beyond an over literalist approach. In this case, the plaintiff was unable to discharge the onus resting upon him, and the action-based noninfringement was dismissed. The next issue addressed by the Court was the defendants' claim of invalidity. In that regard, the defendants alleged that the patent was not new in that it formed part of the state of the art immediately before the priority date of page 382 of [2009] 1 All SA 381 (T)claims to the invention. The evidence adduced bearing out the defendants' allegation, the Court upheld the argument on this point. Finally, the issue of invalidity through lack of an inventive step was addressed. An invention is only patentable if it involves an inventive step. An invention shall be deemed to involve an inventive step if it is not obvious to a person skilled in the art, having regard to any matter which forms, immediately before the priority date of the invention, part of the state of the art. Again, the defendants' argument was sustained by the Court. The plaintiff's action was accordingly dismissed, and the defendants' counterclaim upheld

Related Law

The Patents Act

Collection

CIPIT

Date Updated: 9 nov. 2019

Documents principaux

Murray v Vodacom (Pty) Ltd and another [2009] 1 All SA 381 (T).pdf
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