invention. The learned Judge held that article 69 should be interpreted as "defining a position between these
extremes which combines a fair protection for the patentee with a reasonable degree of certainty for third
parties."
[28] The learned Judge referred to the earlier approach in interpreting English rules which prescribed that the body
of the specification could only be considered where claims had been found to be ambiguous and not where
the claims had plain meaning in themselves. He remarked that to avoid possible injustice, judges were
generally astute to finding the necessary "ambiguity" which enabled them to interpret the document in its
proper context and said: "indeed, the attempt to treat the words of the claim as having meanings 'in
themselves' and without regard to the context in which or the purpose for which they were used was always
a highly artificial exercise." (At 679.)
[29] Having referred with approval to the purposive approach adopted in Catnic, the learned Judge held (at 680):
"Construction, whether of a patent or any other document, is of course not directly concerned with what the author
meant to say. There is no window into the mind of the patentee or the author of any other document. Construction is
objective in the sense that it is concerned with what a reasonable
Page 807 of [2017] 2 All SA 796 (SCA)
person to whom the utterance was addressed would have understood the author to be using the words to mean.
Notice, however, that it is not, as is sometimes said, 'the meaning of the words the author used', but rather what the
notional addressee would have understood the author to mean by using those words. The meaning of words is a
matter of convention, governed by rules, which can be found in dictionaries and grammars. What the author would
have been understood to mean by using those words is not simply a matter of rules. It is highly sensitive to the
context of and background to the particular utterance. It depends not only upon the words the author has chosen but
also upon the identity of the audience he is taken to have been addressing and the knowledge and assumptions which
one attributes to that audience."
[30] The reliance placed by Elbroc on KirinAmgen is therefore misplaced. Purposive interpretation is not an undue
extension of the language of patent claims. In my view to interpret the word "between" as meaning linearly
between the props is not in accordance with a purposive interpretation of the specification, as delineated by
the claims. The advantage of the invention is that the telescopic props give 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. This is
precisely what the respondent's drill rig seeks to achieve.
[31] In the result, the following order is made:
1.
The appeal is upheld with costs, including the costs of two Counsel.
2.
The order of the court a quo is set aside and replaced with the following:
"(a)
The defendant is interdicted from infringing South African Patent number 2001/10382 by way of the sale
or offering for sale in South Africa of the defendant's drill rig.
(b)
The defendant is ordered to pay the plaintiff's costs, including the costs of two counsel."
(Maya AP, Swain JA, Nicholls and Mbatha AJJA concurred in the judgment of Dambuza JA.)
For the appellant:
R Michau S C a n d K Iles instructed by Dessington & Associates Incorporated, Pretoria and Symington & De Kok
Attorneys, Bloemfontein
For the respondent:
AJ Bester SC instructed by McCallum Rademeyer & Freimond, Pretoria and Honey Attorneys, Bloemfontein
Footnotes
1 Claims two to six provide:
"2. A drill rig as claimed in claim 1 in which the drill is pivotally mounted on the carriage.
3. A drill rig as claimed in claim 1 or claim 2 in which the carriage is supported by the props.
4. A drill rig as claimed in claim 3 in which the carriage is movable along the props.
5. A drill rig as claimed in claim 3 or claim 4 in which the carriage is mounted on a pair of fluid operated cylinders
on the outside of the props.
6. A drill rig as claimed in claim 5 in which the carriage has a pair of members spaced apart along the length of
the cylinders the lower member providing the pivot mounting for the drill and the upper member providing a
releasable lock assembly for fixing the drill in alignment with the props."
2 The Law of South Africa (2ed) Vol 20 at 179.
3 Ibid.
4 Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA 589 (A) [also reported at [1972] 1 All SA 201 (A) Ed].
5 Ibid at 613FH.
6 Ibid at 615C.
7 Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA 589 (A) at 611AC.
8 Ibid at 610CD.
9 Ibid at 611AD.
10 Ibid at 612BC.
11 Marine 3 Technologies Holdings (Pty) Limited v Afrigroup Investments (Pty) Limited and another [2014] ZASCA 208;
2015 (2) SA 387 (SCA) para [10] [also reported at [2015] JOL 32607 (SCA) Ed].
12 Gentiruco ibid at 615EF.
13 Based on a definition in the Shorter Oxford English Dictionary (6ed) (2007) in terms of which "between" is defined as a
synonym for interjacent, which, in turn, is defined as "to lie in between"; "in between" being defined as "the middle point on