monopoly; and the patentee is under a statutory obligation to state in the claims clearly and distinctly what is the
invention which he seeks to protect."
[14] In Gentiruco AG v Firestone SA (Pty) Ltd7 this Court, confronted with a contention by Firestone that certain
claims were irresolvably ambiguous and therefore invalid, considered the provisions of section 16(3) of the
Patents Act 9 of 1916 which read:
"A complete specification (1) must fully describe and ascertain the invention and the manner in which it is to be
performed, and (2) must end with a distinct statement of the invention claimed."
Trollip JA remarked that "[s 16(3)] entrenched a method of drawing specifications that had been evolved in
practice, i.e., of incorporating into the patent's specification claims that defined clearly and with precision the
invention claimed as a monopoly"8 and went on to hold that:
"The wording of the second part of the subsection does not effect a legal severance of the claims from the rest of the
specification; 'distinct statement' there means, not a separate statement but a clear one (see Dutch version, 'duidelike
opgawe'); the claims do not constitute a separate document in any sense; they remain part of the specification which
must be read as a whole . . . Moreover, as the function of the claims is to define with clarity and precision the scope
of the invention claimed as a monopoly, they must of necessity also serve to describe and ascertain the invention;
indeed, as will presently appear, they are not only an important but also a decisive part of its description and
ascertainment."9
[15] The court also held that:
"Both must therefore be regarded to ascertain whether or not the complete specification sufficiently discloses or
explains the invention. Indeed the influence of s 16(3) o n s 27(1)(g), is such that the words 'the invention' in the
latter section must mean 'the invention as claimed'. For a patentee may claim something less than he has invented.
Thus, if he predicates in the body of the specification an invention comprising (a), and (b) but he claims only (a), the
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inquiry into sufficient disclosure etc. under the section would be confined to (a) and would not also extend to (b)."1 0
[16] More recently in Marine 3 Technologies Holdings (Pty) Limited v Afrigroup Investments (Pty) Limited and
another1 1 this Court said:
"Generally the first task of a court in the determination of an issue such as the present is to construe the claims in the
patent (Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA 589 (A)). According to Harms JA (Monsanto Co v MDB
Animal Health (Pty) Ltd (formerly MD Biologics CC) 2001 (2) SA 887 (SCA) para 8:
'The rules relating to the interpretation of patents have often been stated and do not need any reformulation. The
problem lies in their sensible application in any given case. For present purposes the following rules as they appear in
Gentiruco AG v Firestone SA (Pty) Ltd . at 614A616D may be emphasised: (a) a specification should be construed
like any other document, subject to the interpreter being mindful of the objects of a specification and its several
parts; (b) the rule of interpretation is to ascertain, not what the inventor or patentee may have had in mind, but what
the language used in the specification means, ie what the intention was as conveyed by the specification, properly
construed; (c) to ascertain that meaning the words used must be read grammatically and in their ordinary sense; (d)
technical words of the art or science involved in the invention must also be given their ordinary meaning, ie as they
are ordinarily understood in the particular art or science; (e) if it appears that a word or expression is used, not in its
ordinary sense, but with some special connotation, it must be given that meaning since the specification may
occasionally define a particular word or expression with the intention that it should bear that meaning in its body or
claims, thereby providing its own dictionary for its interpretation; (f) if a word or expression is susceptible of some
flexibility in its ordinary connotation, it should be interpreted so as to conform with and not to be inconsistent with or
repugnant to the rest of the specification; and (g) if it appears from reading the specification as a whole that certain
words or expressions in the claims are affected or defined by what is said in the body of the specification, the
language of the claims must then be construed accordingly.'"
[17] Regarding the language used in the claim Elbroc contended that Orica would be entitled to invoke the content
of the body of the specification only if the word "between", read in context, was ambiguous or had a peculiar
technical or scientific meaning. But in the absence of such ambiguity the word ought to be accorded its
ordinary meaning and the body of the specification could not be invoked, so it was argued. Indeed, if the
meaning of a claim, properly constructed, is sensible, clear and unambiguous, it is decisive and cannot be
restricted or extended by anything else stated in the body and title of the specification.1 2 But Elbroc
advanced three dictionary meanings of "between". These were: "[across] the space
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separating two things",1 3 "with something on each side",1 4 and "a point B is said to lie between points A
and C where A, B, and C are distinct collinear points."1 5 It is important to highlight that a number of rules of
interpretation of patents have developed over time, and the dictionary meaning of a word is only a guide; it is
not decisive of the meaning of a word.16 The appropriate question being the meaning applicable in the
context of the particular document under consideration as even definitions must be read in context.17
[18] There was no explanation for Elbroc's choice of the dictionary meaning selected. In my view the definition,
"with something on each side" is the most sensible. It accords with the relational nature of the word
"between" and is not dependant on the configuration of the objects under comparison. On the other hand, as
submitted on behalf of Orica the definition "linearly between" is restricted to a situation where the objects
compared are of similar configuration. Counsel for Orica pointed out that during preparation for operation of
the preferred embodiment of the patent, particularly during insertion of the drill into the carriage, a portion of
the carriage at times is offset from a linear line between the two props.