Page 139 of [2014] 2 All SA 134 (SCA)
evidence, it does not remotely prove that all the integers of claims 1 or 2 of the patent were taken and in fact
indicates that important integers were not taken.
[12] It is trite that the basis for the admission of the opinion of an expert is his or her special knowledge and skill
in respect of a particular subject. Although Mr Raubenheimer qualified as an electrical engineer, he only
completed the second appellant's introductory course in respect of the installation of electric security fences
on 19 February 2011. The course lasted one day. He only ever installed single energiser electric fences. He
performed the tests in question on 10 March 2011. At the time he had no prior experience in the testing of
energisers at all or in the testing of energisers with an oscilloscope. In the circumstances, Mr Raubenheimer
can hardly be said to have acquired special knowledge and skill in respect of the subject matter of claims 1
and 2 of the patent. It follows that the opinion evidence adduced by him was not admissible. Moreover, the
oscilloscope used by Mr Raubenheimer was provided to him by a laboratory. He did not obtain a calibration
certificate for the oscilloscope. He was not concerned about that and although that was the first time that he,
on his own version, used an oscilloscope for this purpose, he was satisfied that the oscilloscope was ". . .
more or less doing the right thing", despite the fact that an oscilloscope is a precision instrument. A certificate
of calibration dated 1 February 2012 was produced at the trial, but there is no evidence that it relates to the
oscilloscope used by Mr Raubenheimer or that it was valid for the date of the tests. It follows, in any event,
that no reliance could be placed on the results of the tests performed with the use of the oscilloscope.
[13] At the very best for the respondents, the Merlin master and slave energisers could be used as components in
the method of claims 1 or 2 of the patent, as could other energisers available on the market. But even on this
basis, it is clear that integers (i) and (iii) were not taken. In addition, integer (iv)(a)(2) provides that the
method is characterised by the step of coordinating the operation of the energy pulse generators to ensure
that the effective pulses in the vicinity of a junction point on a conductive line are within a predetermined
magnitude range. Mr Raubenheimer testified that he did not test the magnitude range of the energy pulses.
He, therefore, did not provide evidence that in the operation of the master and slave energisers, as observed
by him, effective pulses were kept within a predetermined magnitude range because of the coordination of
the pulse generators. Integer (iv) was thus also not proved to have been taken.
[14] It was the evidence of Mr Raubenheimer that in the tests performed by him the synchronisation signal of the
Merlin master energiser, acting as the central control unit, most probably reset the timing means of both the
slave energiser and the master energiser, ". . . because there was a distinctive no pulsing". This is in
accordance with the summary of his expert evidence referred to in paragraph 10 above. This is contrary to
integer (vi), which requires that the synchronisation signal transmitted by the central control unit acts to reset
the timing means within each pulse generator on the conductive lines, that is, without resetting a timer of the
central control unit.
Page 140 of [2014] 2 All SA 134 (SCA)
[15] Integer (vii) requires that each pulse generator operate independently until it is reset by a further
synchronisation signal. Mr Raubenheimer's evidence was that in the absence of a synchronisation signal, the
voltage of the pulses of the slave energiser dropped. It, therefore, does not operate independently of the
master energiser in the absence of a synchronisation signal. Thus the Merlin energisers do not have the
feature set out in integer (vii).
[16] It follows that the court a quo erred in finding that the respondents proved direct infringement of the patent.
Counsel for the respondents fairly conceded that no case was made for indirect infringement. The appeal
must, therefore, succeed.
[17] The record of appeal is burdened with unnecessary material, such as expert summaries of witnesses not
called and duplications of the judgment of the court a quo and the patent specification. In addition, many of
the crossreferences in the record are confusing or wrong. As a mark of this Court's disapproval of the
careless preparation of the record, I propose to disallow 20% of the appellants' costs relating to the
preparation of the record of the appeal.
[18] In the result, the following order is issued:
1.
The appeal is upheld with costs, including the costs of two Counsel where so employed, but excluding
20% of the costs relating to the preparation of the record of appeal.
2.
The order of the court a quo is set aside and replaced with the following:
"The plaintiffs' claim is dismissed with costs."
(Navsa ADP, Ponnan, Bosielo JJA and Swain AJA concurred in the judgment of Van der Merwe AJA.)
For the appellant:
AJ Bester SC and G Marriott instructed by Rademeyer Attorneys, Randburg and Honey Attorneys, Bloemfontein
For the respondent:
R Michau SC and D Hugo instructed by Hahn & Hahn Incorporated, Pretoria and McIntyre & Van der Post, Bloemfontein