Murray v Vodacom (Pty) Ltd and another
 1 All SA 381 (T)
TRANSVAAL PROVINCIAL DIVISION
21 May 2008
JR MURPHY J
M Snyman and D Cloete
. Editor's Summary . Cases Referred to . Judgment .
 Intellectual property law Patents Infringement of patent Plaintiff bears onus of proving infringement 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.
 Intellectual property law Patents Validity An invention is only patentable if it involves an inventive step and does
not form part of the state of the art immediately before the registration of the patent.
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 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 overly literalist approach.
In this case, the plaintiff was unable to discharge the onus resting upon him, and the action based on
infringement 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 the
Page 382 of  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.
For Intellectual property law see:
LAWSA First reissue Vol 29
Cases referred to in judgment
Aktiebolaget Hässle and another v Triomed (Pty) Ltd  4 All SA 138
(2003 (1) SA 155) (SCA)