Applied
Raubenheimer and another v Kreepy Krauly (Pty) Ltd 1987 (2) SA 650 (A)
Referred to
United Kingdom
136
Rodi & Wienenberger AG v Henry Showell Ltd 1966 RPC 441 (CA) Referred
to
136
Judgment
VAN DER MERWE AJA:
[1] The first respondent, Gallagher Group Ltd, is the proprietor of South African Patent no 96/6799 entitled
"Safety Operation for a Security Device" (the "patent"). The second respondent, Gallagher Power Fence (SA)
(Pty) Ltd, is the holder of an exclusive licence granted by the first respondent under the patent for the
territory of Southern Africa. The first appellant, IO Tech Manufacturing (Pty) Ltd, primarily manufactures
energisers for use in the electrification of security fences. According to their plea, the second appellant,
Nemtek (Pty) Ltd, and the third appellant, Nemtek Contracting (Pty) Ltd, sell energisers for this purpose.
[2] 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
appellants counterclaimed for revocation of the patent, but at their instance the counterclaim was postponed
sine die. Consequently, only the issue of infringement had to be determined at the hearing of the action. The
Commissioner (Legodi J) granted the interdictory relief claimed by the respondents and ordered delivery up of
infringing articles in rather unclear
Page 136 of [2014] 2 All SA 134 (SCA)
terms, deferment of an inquiry into damages and payment of costs, including the costs of two Counsel, by all
three appellants. Leave to appeal was granted by this Court.
[3] The issue is whether the respondents proved direct infringement of the patent by the appellants. In this
regard, section 45(1) of the Patents Act 57 of 1978 provides as follows:
"(1)
The effect of a patent shall be to grant to the patentee in the Republic, subject to the provisions of this Act, 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, so that he or she shall have and enjoy the whole profit and
advantage accruing by reason of the invention."
[4] The test for infringement under section 45(1) was authoritatively stated as follows in Johnson & Johnson
(Proprietary) Limited v KimberlyClark Corporation and KimberlyClark of South Africa (Proprietary) Limited 1985 BP
126 (A) at 130G131B:
"The determination of the question of infringement 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."
And this Court has on more than one occasion cited the following statement of Diplock LJ in Rodi &
Wienenberger AG v Henry Showell Ltd 1966 RPC 441 (CA) at 467 with approval:
"If the language which the patentee has used in the claims which follow the description upon its true construction
specifies a number of elements or integers acting in a particular relation to one another as constituting the essential
features of his claim, the monopoly which he obtains is for that specified combination of elements or integers so
acting in relation to one another and for nothing else. There is no infringement of his monopoly unless each and
every one of such elements is present in the process or article which is alleged to infringe his patent and such
elements also act in relation to one another in the manner claimed."
See Raubenheimer and another v Kreepy Krauly (Pty) Ltd 1987 (2) SA 650 (A) at 656I657A and Camworth
Technologies Ltd v Videx Wire Products (Pty) Ltd t/a Videx Mining Products (702/12) [2013] ZASCA 112 (17
September 2013) [reported at [2013] JOL 30849 (SCA) Ed].
[5] The specification of the patent describes the background art and the nature of the invention. It states that it
is common in security systems to have a number of electric fence energisers operating on different conductive
lines which combine to form a perimeter fence. Safety regulations have over the years been enacted which
limit the frequency and magnitude of energy pulses that can be delivered by electric fence energisers. This is
to ensure that if a person or animal touches or falls against the fence and for whatever reason remains there,
the electrical energy received by that person or animal is unlikely to permanently damage them. When
security electric fence systems have two or more energisers, a problem can occur where at a junction
between the conductive lines a person can receive a pulse having a greater magnitude than generated singly
by an energiser. A junction in this context means any region where a
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person or animal can simultaneously touch conductive lines connected to separate electric fence energisers.
The solution to this problem offered by the invention of the patent is that if the operation of the energisers
are coordinated with each other, the effective pulses on the electric fence will at all times be regulated and
thus fall within the safety regulations or whatever parameters are desired by the operator or designer of the