Orica Mining Services SA (Pty) Ltd v Elbroc Mining Products (Pty) Ltd
 2 All SA 796 (SCA)
SUPREME COURT OF APPEAL
31 March 2017
MML MAYA AP, N DAMBUZA, KGB SWAIN JJA, Y MBATHA and C
. Editor's Summary . Cases Referred to . Judgment .
Intellectual property Patents Alleged infringement Section 45 of the Patents Act 57 of 1978 Need to ascertain
nature of invention as claimed and its precise scope Extent of protection determined by wording of claims Purposive
interpretation of patent claims showing infringement by respondent Claims to be read in the context of the patented
specification Interpretation of "between" in claim to mean "linearly between" unjustified in context of specification as
well as claims.
The present appeal arose from the dismissal of an action by the appellant ("Orica") for an interdict preventing the
respondent ("Elbroc") from infringing a patent entitled "Portable Drilling Apparatus" (the "patent") held by Orica.
The parties are South African companies which conduct business as suppliers of materials and equipment used in
the mining industry. Orica was granted the patent on 19 December 2001 under the Patents Act 57 of 1978, for a
drill rig used to drill holes on the hanging roof (or wall) of a mine for purposes of placing roofbolts or other securing
attachments into the wall to reinforce and stabilise the hanging wall. It was common cause that Elbroc sold roof
bolter rigs that performed the same function as Orica's to the mining industry in South Africa. That led to the
allegation of infringement by Orica. Before the court a quo, Orica contended that Elbroc had infringed claims 1, 16,
17 and 18 of the patent. Elbroc contended that one of the integers of the claims in the patent was not present in its
drill rig. This was, according to Elbroc, the description of the drill carriage as located between a pair of telescopic
props. The meaning of the word "between" in the patent claims thus became central to Orica's claim. Having
considered the claims of the patent the Commissioner found that the Elbroc drill rig did not infringe the patent as its
carriage equipment was not located "between" its two props. In interpreting the word "between" the judge
adopted the dictionary meaning "linearly between" and found that because the carriage in Elbroc's drill rig was
offset from the linear space between the props there had been no infringement of the patent.
On appeal, Orica persisted in its contention that on a proper construction the patent claims required only that the
drill carriage be located in the space between the two props, even if not in the same linear plane as the props.
Held As stated in case law, in dealing with aspects relating to patent infringements, the court's first task is to
ascertain the nature of the invention as claimed and its precise scope. Accordingly the specification, and especially
the claims, have to be construed.
There was nothing in claim 1 of the patent to show that Orica intended that a drill carriage located only linearly
between the props was essential to its invention, or that a person skilled in the art would understand that the
word "between" was intended to be used as a word of precise meaning. To interpret
Page 797 of  2 All SA 796 (SCA)
the word "between" as meaning linearly between the props was found by the court not to be in accordance with a
purposive interpretation of the specification, as delineated by the claims. The advantage of the invention was that
the telescopic props gave support not only to the hanging roof of the stope, but also to the drill located "between"
them, so that it may be operated remotely. That was precisely what the respondent's drill rig sought to achieve.
The appeal was, therefore, upheld and the respondent was interdicted from infringing Orica's patent.
For Trade Marks see:
LAWSA Second Edition Replacement Volume 2015 Vol 29, paras 1308
Burrell TD Burrells South African Patent and Design Law 4ed Durban LexisNexis 2016
Cases referred to in judgment
Aktiebolaget Hässle and another v Triomed (Pty) Ltd  4 All SA 138
(2003 (1) SA 155) (SCA) Referred to