IO Tech Manufacturing (Pty) Ltd and others v Gallagher Group Ltd and another
 2 All SA 134 (SCA)
SUPREME COURT OF APPEAL
29 November 2013
MS NAVSA ADP, LO BOSIELO, VM PONNAN JJA, KGB SWAIN and
CHG VAN DER MERWE AJJA
. Editor's Summary . Cases Referred to . Judgment .
 Evidence Expert witnesses Basis for admission of opinion of an expert is his special knowledge and skill in respect
of a particular subject Where expert called had no prior experience in subject, his evidence was inadmissible.
 Intellectual property law Patents Alleged infringement Test for infringement under section 45(1) of the Patents
Act 57 of 1978 Twostage inquiry: firstly, the claims must be properly construed, including the ascertainment of the
essential integers, then the infringing article or process must be considered Not all essential integers of the claims of
the patent proved to have been taken, and therefore no case for infringement was established.
The first respondent owned a patent entitled "Safety Operation for a Security Device". The second respondent was
the holder of an exclusive licence granted by the first respondent under the patent for the territory of Southern
Africa. The first appellant manufactured energisers for use in the electrification of security fences. The respondents
instituted a patent infringement action against the appellants in the Court of the Commissioner of Patents, relying
on direct and indirect infringement of the patent by the appellants. The Commissioner granted the interdictory relief
claimed by the respondents and ordered delivery of infringing articles.
Held The issue on appeal was whether the respondents proved direct infringement of the patent by the
appellants. Section 45(1) of the Patents Act 57 of 1978 deals with the effect of a patent. The test for infringement
under section 45(1) involves a twostage inquiry. Firstly, the claims must be properly construed, including the
ascertainment of the essential integers, then the infringing article or process must be considered. To constitute
infringement the article or process must take each and every one of the essential integers of at least one of the
claims. If it does not, there is no infringement.
In alleging patent infringement, the respondents placed reliance on tests performed on the first appellant's
energisers by its expert witness. The Court found that reliance on the evidence of the expert to prove infringement
of the patent by the appellants was flawed in a number of respects. First, his evidence was of virtually no probative
value in the circumstances. Secondly, even if regard was had to his evidence, it did not remotely prove that all the
integers of two of the claims of the patent were taken, and in fact indicated that important integers were not taken.
The basis for the admission of the opinion of an expert is his special knowledge and skill in respect of a particular
subject. The expert in this case had no prior experience in the testing of energisers at all. Therefore, the opinion
evidence adduced by him was not admissible.
Page 135 of  2 All SA 134 (SCA)
Because not all the essential integers of the various claims had not been proved to have been taken, the court a
quo erred in finding that the respondents proved direct infringement of the patent.
The appeal was upheld with costs, and the respondents' claim was dismissed.
For Evidence see:
LAWSA Second Edition (Vol 9, paras 677847)
Zeffertt DT The South African Law of Evidence (2ed) Durban 2009
For Intellectual property see:
LAWSA Second Edition Replacement Volume Vol 29
Burrell TD Burrells South African Patent and Design Law (3ed) Durban LexisNexis 1999
Cases referred to in judgment
Camworth Technologies Ltd v Videx Wire Products (Pty) Ltd t/a Videx Mining
Products  JOL 30849 ( ZASCA 112) (SCA) Referred to
Johnson & Johnson (Proprietary) Limited v KimberlyClark Corporation and
KimberlyClark of South Africa (Proprietary) Limited 1985 BP 126 (A)