"The machinery is designed for planting seeds in untilled soil. It is essentially a frame that is dragged behind a tractor
on which a series of tools are mounted in a line one behind the other each performing one of a series of functions.
First in line is a tine (or share) that cuts a slot in the untilled soil. Optionally, a tube might be mounted behind the tine,
through which fertilizer may be deposited in the slot. Behind the tube is a device of one kind or another that collapses
soil into the slot so as to partially fill it, which serves a dual purpose: the collapsed soil separates the fertilizer (if
fertilizer is used) from the seed and avoids the seed being burnt, and it forms a suitable bed upon which to deposit
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the seeds. Behind that tool is another verticallymounted tube through which seeds are deposited on the bed. And
behind that is a wheel, wider than the slot, which dislodges more soil from the sides of the slot, covering the seed,
and simultaneously tamping it down to ensure that the seed is in good contact with the surrounding soil."
The proposed amendment
[14] The patentee did not seek to effect any amendments to the body of the specification but only to claims 1 and
13. In addition, the omnibus claims are to be deleted but nothing turns on this. The object of the proposed
amendments to claim 1 is to limit its scope through the introduction of an integer of the original claim 13 into
claim 1. The amended claim 13 is not much different.
[15] It is not necessary to quote the original claim 1 because its terms are apparent from the proposed amended
claim 1, which reads as follows (the insertions are in bold and the deletion is indicated):
"A seeding assembly to be used with a plough frame supporting at least one plough tine, said assembly comprising:
(A)
a seeding tube (i) to extend downwardly into a slot formed in a soil layer by the tine, (ii) said tube having a
lower extremity through which seed is delivered into the soil layer;
(B)
a closing tool (i) fixed with respect to said lower extremity and having a leading surface forward thereof
relative to the normal direction of travel of the frame over the soil layer, (ii) said closing tool being aligned in
said direction with respect to said lower extremity so that it engages soil adjacent said slot to dislodge the soil
to partly close the slot and provide a seed bed onto which seed leaving said lower extremity is delivered; and
(C)
a first mounting means to attach the tube and closing tool to the frame to permit height adjustment of the tube
and the closing tool with respect to the frame; and
(D)
ground engaging means operatively associated with the tube and closing tool to engage the soil layer to cause
said height adjustment; and
(E)
a second mounting means, which is adjustable for adjustably attaching the ground engaging means to the tube
and closing tool thereby enabling said ground engaging means to effect said height adjustment."
The numbering of integers has been added for the sake of convenience but is simpler than that used by the
previous courts and by counsel.
[16] The proposed claim 13 is in these terms:
"In combination, a plough tine having a lower extremity to which there is attached a digging blade, a fertilizer tube
and a seeding assembly to be used with a plough frame supporting at least the plough tine, said assembly
comprising:
a seeding tube to extend downwardly into a slot formed in a soil layer by the tine, said tube having a lower
extremity through which seed is delivered into the soil layer;
a closing tool fixed with respect to said lower extremity and having a leading surface forward thereof relative to
the normal direction of travel of the frame over the soil layer, said closing tool being aligned in said direction
with respect to said lower extremity so that it engages soil adjacent said slot to
Page 229 of [2011] 4 All SA 221 (SCA)
dislodge the soil9 to partly close the slot and provide a seed bed onto which seed leaving said lower extremity
is delivered;
a first mounting means to attach the tube and closing tool to the frame to permit height adjustment of the tube
and the closing tool with respect to the frame;
wherein said first mounting means is adapted to be attached to the tine in order to be attached to the frame;
ground engaging means operatively associated with the tube and closing tool to engage the soil layer to cause
said height adjustment wherein the digging blade, fertilizer tube, closing tool, seeding tube and ground
engaging means are aligned in that order in the intended direction of travel;
wherein said digging blade, closing tool and ground engaging means each have an operative width, with the
operative width of said digging blade being narrower than the operative width of said closing tool and with the
operative width of said closing tool being narrower than the operative width of said ground engaging means;
a second mounting means, which is adjustable for adjustably attaching the ground engaging means to the tube
and closing tool thereby enabling said ground engaging means to effect said height adjustment; and
wherein the seeding assembly is directly attached to the tine, so as to be movable relative thereto to provide
said height adjustment."
Objections to the amendment
[17] The main objections to the amendment are based on continuing obviousness and, in the alternative, culpable
delay and reprehensible conduct. Before dealing with these it might be convenient to dispose of other