contraceptive called Ruby. This product is the generic equivalent of the Yasmin product sold by Bayer under
the 2004 patent. Alleging that the sale of Ruby constituted an infringement of claim 1 of the 2004 patent,
Bayer approached the court a quo for an interdict and ancillary relief. Pharma denied that Ruby infringed the
patent. It also denied that the 2004 patent was valid and counterclaimed for its revocation. The court a quo
held, however, that the 2004 patent was valid and that Ruby infringed it. In consequence it granted the relief
claimed by Bayer and dismissed Pharma's counterclaim, in both instances, with costs of suit. The present
appeal against that order is with the leave of the court a quo.
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[4] The case for Pharma on appeal is that, properly interpreted, claim 1 of the patent in suit which is the only
claim relevant does not include within its scope the allegedly infringing Ruby product. For its attack on the
validity of the patent, Pharma relied firstly on the ground that the invention claimed in the specification of the
patent lacks an inventive step, or, in patent parlance, it relied on the basis of obviousness. Secondly, Pharma
contended that, in any event, the 2004 patent is invalid on the ground that it is not a true "divisional" of the
2002 parent patent. In consequence, so Pharma's contention went, the 2002 patent lacked novelty in the
light of the disclosures in the 2002 patent. Since all these contentions are largely dependent on an
interpretation of the specification and especially claim 1 of the 2004 patent, I find it appropriate to reflect on
the broad principles of patent interpretation as established by authority.
Foreign judgments
[5] However, before doing so, there is the matter of foreign judgments, which attracted a fair deal of debate
during argument before us. It appears that the patent in suit had been the subject of litigation in various
jurisdictions. Unsurprisingly Bayer referred us to judgments in the United Kingdom by the High Court in Gedeon
Richter plc v Bayer Schering Pharma AG [2011] EWHC 583 (Pat) and the Court of Appeal in Gedeon Richter plc v
Bayer Pharma AG [2012] EWCA Civ 235 and in Australia by the Federal Court of Australia General Division in
Generic Health (Pty) Ltd v Bayer Pharma AG [2014] FCAFC 73 where the patent in suit survived an attack based
on the premise that it lacked an inventive step. Pharma, on the other hand, referred us to the judgment of
the Technical Board of Appeal of the European Patent Office in Bayer Pharma AG v Teva Pharmaceutical
Industries Ltd (case number 0598/12) where the application for the revocation of the patent was upheld. But
as I see it, we must decide the matter on the evidence before us. Helpful as these foreign cases may be on
matters of law, we can derive no guidance from them on issues of fact.
Approach to interpretation
[6] This brings me back to the principles of interpretation. To begin with, there is the tenet of patent construction
which is encapsulated in the oft quoted statement by Trollip JA in Gentiruco AG v Firestone SA (Pty) Ltd
1972 (1) SA 589 (A) at 614BH [also reported at [1972] 1 All SA 201 (A) Ed] that:
". . . [T]he 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 his intention was as conveyed by the specification, properly
construed . . . since he is presumed to have intended what his language means. To ascertain that meaning the words
used must be read grammatically and in their ordinary sense . . . The specification like any other document must be
read as a whole."
(See also Cipla Medpro (Pty) Ltd v Aventis Pharma SA (Treatment Action Campaign as amicus curiae) and Related
Appeal 2013 (4) SA 579 (SCA) at paragraph 14 [also reported at [2012] JOL 29165 (SCA) Ed].)
[7] Yet, established authority also reveals that the reference to "the ordinary meaning of words" must not be
understood as an exercise in focusing on
Page 306 of [2014] 4 All SA 302 (SCA)
each word in isolation, but by viewing them in the context of the patent as a whole (see eg Aktiebolaget
Hässle and another v Triomed (Pty) Ltd 2003 (1) SA 155 (SCA) at paragraph 8 [also reported at [2002] 4 All SA
138 (SCA) Ed]). Essentially the same principle was expressed with admirable clarity in the following
statement by Lord Diplock in Catnic Components Ltd and another v Hill & Smith Ltd [1982] RPC 182 (HL) at 242
referred to with approval in the many judgments of this Court cited in Aktiebolaget Hässle (paragraph 8):
". . . A patent specification should be given a purposive construction rather than a purely literal one derived from
applying to it the kind of meticulous verbal analysis in which lawyers are too often tempted by their training to
indulge. The question in each case is: whether persons with practical knowledge and experience of the kind of work in
which the invention was intended to be used, would understand that strict compliance with a particular descriptive
word or phrase appearing in a claim was intended by the patentee to be an essential requirement of the invention so
that any variant would fall outside the monopoly claimed, even though it could have no material effect upon the way
the invention worked."
[8] Or, in the words of Corbett JA in Multotec Manufacturing (Pty) Ltd v Screenex Wire Weaving Manufacturers (Pty)
Ltd 1983 (1) SA 709 (A) at 721CE [also reported at [1983] 1 All SA 314 (A) Ed]:
". . . The Court should always guard against too 'textual' an approach in the interpretation of claims in a patent
specification. It is true that it is in the claims that a patentee stakes out and defines his monopoly; and that the claims
must be looked at in order to determine whether an infringement has taken place. But by peering too closely at the
language of a claim the Court may overlook an infringement which takes the substance of the invention."
[9] Finally, with regard to interpretation, I start out from the wellestablished premise, that a patent specification
is a statement by the patentee, addressed to those "skilled in the art", in which he informs them of what he
or she claims to be the essential features of the invention for which a monopoly is claimed. Consequently, a