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the line: the space between two points in position". 14 MacMillan Dictionary. 15 Wolfram and MathWorld. 16 De Beers Industrial Diamond Division (Pty) Ltd v Ishizuka 1980 (2) SA 191 (T) [also reported at [1980] 3 All SA 447 (T) Ed]. See also Monsanto Co v MDB Animal Health (Pty) Ltd (Formerly MD Biologics CC) 2001 (2) SA 887 (SCA) paras [9][10] [also reported at [2001] JOL 7939 (SCA) Ed]. 17 LAWSA ibid para [184] at 181. 18 Selas Corporation of America v Electric Furnace Co 1983 (1) SA 1043 (A) at 1052G1053F. 19 See Aktiebolaget Hässle and another v Triomed (Pty) Ltd 2003 (1) SA 155 (SCA) para [8] [also reported at [2002] 4 All SA 138 (SCA) Ed]. 20 Catnic Components Limited and another v Hill & Smith Limited [1982] RPC 183 at 244. 21 Ibid at 185. 22 Ibid at 237. 23 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. 24 At 667.

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Orica Mining Services SA (Pty) Ltd v Elbroc Mining Products (Pty) Ltd [2017] 2 All SA 796 (SCA)

Case Law

Case Outcome

Disposition: Injunction or Order Granted
Procedural: Reversed Lower Court

Case Status: Closed

Keywords

Intellectual property

Case Number: 233/2016

Decision date: 31 mar 2017

Country

South Africa

Judicial Body: Administrative Court

Court Name: Supreme Court of Appeal of South Africa

Collection: CIPIT

Case Summary: The present appeal arose from the dismissal of an action by the appellant ("Orica") for an interdict preventing the respondent ("Elbroc") from infringing a patent entitled "Portable Drilling Apparatus" (the "patent") held by Orica. On appeal, Orica persisted in its contention that on a proper construction the patent claims required only that the drill carriage be located in the space between the two props, even if not in the same linear plane as the props. Held As stated in case of law, in dealing with aspects relating to patent infringements, the court's first task is to ascertain the nature of the invention as claimed and its precise scope. Accordingly, the specification, and especially the claims have to be construed. There was nothing in claim 1 of the patent to show that Orica intended that a drill carriage located only linearly between the props was essential to its invention, or that a person skilled in the art would understand that the word "between" was intended to be used as a word of precise meaning. To interpret page 797 of [2017] 2 All SA 796 (SCA)the word "between" as meaning linearly between the props was found by the court not to be in accordance with a purposive interpretation of the specification, as delineated by the claims. The advantage of the invention was that the telescopic props gave 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. That was precisely what the respondent's drill rig sought to achieve. The appeal was, therefore, upheld and the respondent was interdicted from infringing Orica's patent.

Date Updated: 7 nov 2019

Primary Documents

Orica Mining Services SA (Pty) Ltd v Elbroc Mining Products (Pty) Ltd [2017] 2 All SA 796 (SCA).pdf
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