Notes
For Patents see LAWSA Reissue (vol 20(1), paras 55 102).
Cases referred to in judgment
("C" means confirmed; "D" means distinguished; "F" means followed and "R" means reversed. H N refers to
corresponding headnote number.)
South Africa
Fundstrust (Pty) Ltd (in Liquidation) v Van Deventer [1997] 1 All SA 644 (1997 (1) SA 710) (A)
Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA 589 (A) F
Letraset Ltd v Helios Ltd 1972 (3) SA 245 (A)
Monsanto Co v MDB Animal Health (Pty) Ltd (formerly MD Biologics CC 2001 (2) SA 887 (SCA)
Page 140 of [2002] 4 All SA 138 (SCA)
Multotec Manufacturing (Pty) Ltd v Screenex Wire Weaving Manufacturers (Pty) Ltd 1983 (1) SA 709 (A)
Nampak Products Ltd and another v ManDirk (Pty) Ltd [1999] 2 All SA 543 (1999 (3) SA 708) (SCA)
Sappi Fine Papers (Pty) Ltd v ICI Canada Inc (Formerly CIL Inc) 1992 (3) SA 306 (A)
Stauffer Chemical Co and another v Safsan Marketing and Distribution Co (Pty) Ltd and others 1987 (2) SA 331 (A)
United Kingdom
Catnic Components Limited and another v Hill and Smith Limited [1982] RPC 183 (HL)
R v Secretary of State for the Home Department, ex parte Daly [2001] 3 All ER 433 (HL)
United States of America
HK Porter Company, Inc v The Gates Rubber Company 187 USPQ 692
In re Bertsch 56 USPQ 379
View Parallel Citation
Judgment
NUGENT JA:
[1]
"In law" remarked Lord Steyn in R v Secretary of State for the Home Department, ex parte Daly1 "context is
everything." And so it is when it comes to construing the language used in documents, whether the document
be a statute, or a contract, or, as in this case, a patent specification.
[2]
Patent No. 87/2378, which is in issue in this appeal, relates to a pharmaceutical preparation containing
omeprazole. Omeprazole is a potent inhibitor of gastric acid secretion, which makes it useful in the treatment of
gastric and duodenal ulcers. It is relatively unstable, however, and degrades rapidly in the presence of acid
solutions. If the drug is to be administered orally it must be prepared in a form that enables it to pass through
the stomach without having contact with the acidic stomach fluids, so that it can be delivered intact to the
proximal part of the small intestine where the environment is suitable for the drug to be dispersed.
View Parallel Citation
[3]
The first appellant is the patentee and the second appellant has been licensed to use the invention. The
respondent imports and distributes a pharmaceutical preparation known as Ulzec, in 10g and 20g doses, which
is alleged by the appellants to infringe the patent. The appellants applied to the Commissioner of Patents, as a
matter of urgency, for interim relief aimed at restraining the respondent from distributing Ulzec pending the
outcome of an action for final relief. Several issues were raised in those proceedings but the Commissioner
(Southwood J) found it necessary to deal with only one of them he found that Ulzec does not infringe the
patent and on that ground alone the application was dismissed. Leave to appeal having been granted by the
Commissioner this Court directed in terms of Rule 11 that the appeal would be confined to the issue of
infringement and that if the appeal were
Page 141 of [2002] 4 All SA 138 (SCA)
to succeed the application would be remitted to the Commissioner for the remaining issues to be dealt with.
[4]
The aim of the invention, according to the patent specification, is to enable an oral dose of omeprazole to be
delivered intact to the proximal part of the small intestine, there to be rapidly dispersed so that it can be
absorbed through the wall of the intestine into the blood stream. In order for the drug to pass through the
stomach without having contact with the acidic stomach fluids it is encapsulated in an enteric coating that is
resistant to dissolution in the stomach but dissolves in the proximal part of the intestine. Enteric coatings that