De Beers Industrial Diamond Division (Pty) Ltd v Ishizuka [1980] 3 All SA 447
(1980 (2) SA 191) (T) Referred to
804
Gentiruco AG v Firestone SA (Pty) Ltd [1972] 1 All SA 201 (1972 (1) SA 589)
(A) Confirmed
801
Marine 3 Technologies Holdings (Pty) Limited v Afrigroup Investments (Pty)
Limited and another [2015] JOL 32607 ([2014] ZASCA 208;
2015 (2) SA 387) (SCA) Referred to
803
Monsanto Co v MDB Animal Health (Pty) Ltd (Formerly MD Biologics CC)
[2001] JOL 7939 (2001 (2) SA 887) (SCA) Referred to
804
Multotec Manufacturing (Pty) Ltd v Screenex Wire Weaving Manufacturers
(Pty) Ltd [1983] 1 All SA 314 (1983 (1) SA 709) (A) Referred to
801
Selas Corporation of America v Electric Furnace Co 1983 (1) SA 1043 (A)
Referred to
805
United Kingdom
Catnic Components Limited and another v Hill & Smith Limited [1982] RPC
183 Discussed and Compared
805
Electrical and Musical Industries v Lissen Ltd (1938) 56 RPC 23 [UK]
Referred to
801
Harrison v Anderson Foundry Company (1876) 1 AC 574 (HL) Referred to
801
KirinAmgen Inc and others v Hoechst Marion Roussel Ltd and others;
Hoechst Marion Roussel Ltd and others v KirinAmgen and others [2005] 1 All
ER 667 Distinguished
806
Judgment
DAMBUZA JA:
[1] This is an appeal against the judgment of the Court of the Commissioner of Patents, (Mabuse J). The court
dismissed with costs, an action by the appellant, Orica Mining Services South Africa (Pty) Ltd ("Orica") as
plaintiff, for an interdict and ancillary relief, against the respondent, Elbroc Mining Products (Pty) Ltd ("Elbroc")
as defendant. The object of the interdict was to restrain Elbroc from infringing South African patent
Page 798 of [2017] 2 All SA 796 (SCA)
number 2001/10382, entitled "Portable Drilling Apparatus" (the "patent") held by Orica.
[2] Elbroc counterclaimed for revocation of the patent on the grounds of obviousness. However, the parties
agreed and the court ordered separation of the issues. Elbroc's counterclaim was postponed sine die.
Consequently, only the alleged infringement and more particularly, the meaning of the word "between" in the
patent claims, which was central to Orica's claim, was before the court a quo. The appeal is with the leave of
the court a quo.
[3] 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 ("Patents Act") for a drill rig. The rig is 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. The invention is therefore referred to as a roof bolter rig. It enables drilling of holes in confined
spaces such as stopes, without having to manually hold and maintain the machine in position. It is a self
supporting drill rig. In its preferred design it consists of two extendable telescopic props onto which is
mounted a drill carriage. The props support the surface of the hanging wall during drilling thus reducing the
risk of the hanging wall collapsing onto the rig user. The machine enhances safety in the mining industry.
[4] Each prop has a pair of cylinders joined at either end by a brace and a base. A hydraulically operated piston
slides into each cylinder to extend from the end of the cylinder. The free end of the piston forms a point and a
conical stud extends centrally from the outer surface of the base.
[5]
Below is a diagram of the Patent No 10382/2001.