matters such as common knowledge, distinctiveness, homogeneity and stability all became aspects of novelty.
The Court held that historically, patent law drew a distinction between "public knowledge" and "common
knowledge". Common knowledge referred to the knowledge of the average person in that particular art. Public
knowledge is knowledge that is available to the public.
The Court held that in the absence of cogent evidence to the contrary, there was sufficient evidence to establish
that the plant had "otherwise come to the knowledge of the public" and that the plant was not distinctive.
The Court held that the plaintiff was not the holder of a valid plant breeder's right for the reasons given.
Appeal was upheld.
Notes
For Patents and Inventions see
.
LAWSA Reissue (Vol 20(1), paras 55 102)
.
Burrell, TD South African Patent Law and Practice 2ed Durban Butterworths 1986
Cases referred to in judgment
Bendz Ltd and another v South African Lead Works Ltd 1963 (3) SA 797
(A)
191
Cointreau et Cie v Pagan International SA 1991 (4) SA 706 (A)
185
Page 183 of [2004] 1 All SA 181 (SCA)
Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA 589 (A
190
Keith Kirsten's (Pty) Ltd v Weltevrede Nursery (Pty) Ltd and another
[2002] 3 All SA 624 (2002 (4) SA 756) (C)
183
View Parallel Citation
Judgment
HARMS JA:
[1]
The plaintiff, Keith Kirsten's (Pty) Ltd, holds a plant breeder's right certificate for a particular variety of canna,
named for purposes of registration "Phasion", a corruption of and pronounced as "passion". The registration
certificate (PBEZA 961 360) was issued on 27 February
View Parallel Citation
1996 and the right is due to expire on 26 February 2011.1 What makes this canna, which is marketed under
the trade name "Tropicanna", special is the colour of its leaves. A trade leaflet describes them in these terms:
each leaf is an exotic combination of vivid colours; new foliage emerges in rich burgundy tones, which quickly
develop flamboyant stripes of red, pink, yellow and deep green fanning out from the vivid green central vein.
[2]
The variety is a commercial success and there is an export market for it. Intending to capitalise on its
popularity the defendant, Weltevrede Nursery (Pty) Ltd, obtained an export order for a substantial number of
Tropicana rhizomes (root stock). To fulfil the order it had to purchase rhizomes from other nurseries. The
plaintiff became aware of this and obtained an order in terms of which the rhizomes in the defendant's
possession were attached pending infringement proceedings. Some of the attached rhizomes were grown
and on comparison found to be the same as a Phasion plant obtained from the plaintiff. During the course of
the trial the defendant admitted "infringement" conditionally the admission was subject to the failure of its
defence of invalidity of the plaintiff's registration. The defendant also counterclaimed for the termination of
the plaintiff's plant breeder's right. In the event the defence and counterclaim did not succeed and the court
below2 gave judgment for the plaintiff in the sum of R10 000,00 which is the amount a successful plaintiff is
statutorily entitled to absent proof of loss.3
The statutory setting
[3]
The Patents Act 37 of 1952 provided for the registration of plant patents by including in the definition of
"invention" any distinct and new variety of plant, other than a tuber propagated plant, which had been
reproduced asexually (section 1). Patents for plants were abolished and replaced by plant breeders' rights in
the Plant Breeders' Rights Act 22 of 1964 which in turn was superseded by the current Plant Breeders' Rights
Act 15 of 1976 as amended from time to time. Some of the amendments were necessitated by international
developments. There is namely an International
Page 184 of [2004] 1 All SA 181 (SCA)
Convention for the Protection of New Varieties of Plants.4 The amendments to the 1976 Act effected by the