the basis of statements made and examples given in the body of the specification. This approach in my view
offends against a basic principle of patent law, namely, that while context is everything when interpreting a
patent, one must not lose sight of the fact that a patent specification is divided up into different parts which
perform different functions. It is the function of the claims to define clearly and with precision the monopoly
claimed, so that others may know the exact boundaries of the area within which they may not trespass.
Page 369 of [2014] 1 All SA 355 (GNP)
[75] On the contextual interpretation of a patent Aktiebolaget Hässle and another v Triomed (Pty) Ltd25 explains the
situation better, as follows;
"In law, remarked Lord Steyn in R v Secretary of the State for the Home Department, ex Daly, context is everything.
And so it is when it comes to construing the language used in documents, whether the document be a statute, or, as
in this case, a patent specification."
[76] In Power Steel Construction Co (Pty) Ltd v African Batignolles Construction (Pty) Ltd26 it was held as follows:
"The claims must undoubtedly be read as part of the entire document, but the forbidden field must be found in the
language of the claims and not elsewhere. It is not permissible, in my opinion, by reference to some language used in
the earlier part of the specification, to change a claim which by its own language, is a claim for one subject matter
into a claim for another and a different subject matter, which is what you do when you alter the boundaries of the
forbidden territory."
[77] The Supreme Court of Appeal quoted from the above judgment with approval in EnsignBickford (South Africa)
(Pty) Ltd and others v AECI Explosives and Chemicals Ltd27 and then added the following on this aspect among
others:
"A claim is a portion of the specification which fulfils a separate and distinct function. It, and it alone, defines the
monopoly; and the patentee is under a statutory obligation to state in the claims clearly and distinctly what is the
invention which it desires to protect."28
[78] It is wrong therefore, by reference to some language used in the earlier part of the specification, to change a
claim which by its own language is a claim for one subject matter into a claim for another and a different
subject matter. It is my view and finding that Mr Rademeyer was seeking to do so by advancing the
arguments under this heading.
[79] Simply put, there is no basis upon which the court could validly limit claim 29 preamendment to look like or
sound like an embodiment described in the body of the specification. In short, absent any limitation, initially,
then the amendment will be good.
[80] Agreed, claim 29, prior to amendment, includes within its scope, a rack assembly which includes a bevelled
edge located on the upper surface of the plate resulting in the effect that when a card hits the bevelled
surface, it will cause the card to access the compartment above the plate. On a proper construction, it is my
considered view and finding that claim 29 postamendment is not different from claim 29 preamendment in
respect of the position of the bevelled surface. This in my further view translates into the conclusion that the
proposed amendment does not broaden the scope of claim 29. I, therefore, find that Mr Rademeyer's
suggestion29 that the effect of the amendment is to broaden the scope of the claim to
Page 370 of [2014] 1 All SA 355 (GNP)
include such a rack assembly was and is not borne out by the facts and circumstances.
[81] I find equally no merit in the suggestion and argument that claim 29 is not fairly based on the body of the
specification prior to amendment.
[82] As held among others in Bateman (supra) it is entirely permissible for a claim to extend beyond the examples
and embodiments described in the body of the specification. In the circumstances, the fact that an
embodiment of the invention described in the specification showing the top surface of the card receiving
compartment being a plate member with a bevelled surface does not mean that the scope of claim 29 is
limited to such an arrangement.
[83] To summarise the arguments and submissions tendered on this aspect, it is my finding that it is clear that the
specification prior to amendment:
83.1 broadly described a plate member with a bevelled surface;
83.2 is clearly not in any way inconsistent with claim 29 postamendment; and
83.3 is not wholly silent regarding the plate member having a bevelled surface.
[84] The above, in my view and finding, takes care of the contention (by the respondent) that the claims post
amendment are unfairly based.
Undue delay and lack of bona fides
[85] The court has a wide discretion to deal with an application for the amendment of a patent and the general
rule is that courts are inclined to exercise their discretion in favour of granting an amendment rather than
refusing it.30 The reason is the accepted principle in patent law that the public interest favours the
rectification of patents by way of amendment.31 In that way, there would be certainty within the field and
unnecessary clashes will be averted.
[86] T h e bona fides of the applicant for amendment plays a major part. Equally, unacceptable degrees of
procrastination may negative bona fides.