[8] Subsections (5), (6) and (7) read as follows:
"(5)
An amendment of a provisional specification shall be allowed if it is by way of correction, including correction of
an obvious mistake, and no amendment of a provisional specification shall be allowed if it would introduce new
matter not in substance disclosed in the specification sought to be amended.
(6)
No amendment of a complete specification which becomes open to public inspection after the publication of the
acceptance of the specification
Page 358 of [2014] 1 All SA 355 (GNP)
in terms of section 42, whether before or after it so becomes open to public inspection, shall be allowed if
(7)
(a)
the effect of the amendment would be to introduce new matter or matter not in substance disclosed in
the specification before amendment; or
(b)
the specification as amended would include any claim not fairly based on matter disclosed in the
specification before amendment.
No amendment of a complete specification which has become open for public inspection after the publication of
the acceptance of the specification in terms of section 42 shall be allowed if the specification as amended would
include any claim not wholly within the scope of a claim included in the specification before amendment."
Notice of motion and nature of amendments sought
[9] At the hearing of this matter, the parties put it on record that certain proposed amendments were no longer
disputed. Furthermore, in the same vein, prayers 2 and 3 of the notice of motion were also no longer in
dispute. This makes it necessary that I set out the prayers in the notice of motion herein and also indicate
what the specification in issue initially looked like and how it will look like if the amendments are granted and
effected.
[10] The notice of motion read as follows:
"1.
that the claims of patent 2000/5613 be amended in the manner set out in the marked up copy of the claims
(Annexure JF4) in the affidavit of Jennifer Farrar made in support of this application and lodged herewith;
2.
that the action be stayed pending the determination of this application to amend;
3.
that the draft advertisement (Annexure JF6) in the affidavit of Jennifer Farrar, to be advertised in the Patent
Journal in November 2012, will as published be accepted as an advertisement in terms of section 51 of the
Patents Act 57 of 1978;
4.
in the event of this application being opposed, an order directing that the costs occasioned by the opposition be
paid by such opponent, such costs to include the costs of two counsel;
5.
further and/or alternative relief."
The nature of the amendments as per annexure "JF4"
[11] The claims that remain the subjects of this application for amendment are claims 29 and 34. Claims 30, 31, 32,
33, 35, 36 and 37 are no longer in dispute. Consequently, only the proposed amendments to claims 29 and
34 will be set out hereunder.
[12] The original claim 29 read as follows:
"29.
A rack assembly for use in an automatic card shuffler, the rack assembly comprising:
at least two card receiving compartments, wherein each compartment has a top surface and a card
supporting surface and can receive more than one card;
wherein each card receiving compartment comprises a plate member that includes a bevelled surface."
Page 359 of [2014] 1 All SA 355 (GNP)
[13] The claim as amended will look as follows (the proposed amendments placed in square brackets and
underlined or in italics):
"29.
A rack assembly for use in an automatic card shuffler, the rack assembly comprising,
[more than two] card receiving compartments [i n t o w h i c h c a r d s a r e d e l i v e r e d o n e b y o n e b y a c a r d
transporting mechanism from a group of cards contained within a card receiving well], wherein each
compartment has a top surface and a card supporting surface and can receive more than one card;
wherein each card receiving compartment comprises a plate member that includes a bevelled surface, [so that
the leading edge of a card being driven into the compartment can hit the bevelled surface, with the position of
the rack assembly, relative to the cards being delivered by the card transporting mechanism, being selected by
a microprocessor, and wherein the bevelled surface is located on the same side of the plate member in each
compartment]."
[14] Claims 30 to 37 are new additions introduced by the proposed amendment. I will only set out claim 34 herein
as it is the only one in dispute. It reads thus:
"34.
A rack assembly for use in an automatic card shuffler, the rack assembly comprising:
more than two card receiving compartments into which cards are delivered one by one by a card transporting
mechanism from a group of cards contained within a card receiving well, wherein each compartment has a top
surface and a card supporting surface and can receive more than one card;