allegations concerning continuing invalidity.
[18] The first is that the invention as illustrated or exemplified cannot be performed or lead to the advantages and
results set out in the complete specification (section 61(1)(d)). This objection is based on the fact that in some
countries integer C of claim 1 of the corresponding claim contains at the end the words "and tine", reading:
". . . 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 tine."
As a result of the omission of the tine, the argument was that the amendment does not include a limitation
which permits height adjustment of the seeding tube and closing tool relative to the tine but only relative to
the frame. What the argument ignored is the fact that the plough frame supports the tine and that the first
mounting means attaches the tube and the closing tool with respect to the frame. As the tine is supported by
the frame, height adjustment of the tube and the closing tool with respect to the frame will result in height
adjustment of the tube and closing tool relative to the tine. Simply put, the tine is attached to the frame and if
the frame's height is adjusted so is that of the tine.
Page 230 of [2011] 4 All SA 221 (SCA)
[19] Other objections relate to lack of clarity (section 61(1)(f )(i)). A surprising aspect of the objections under this
heading is that what was clear at the time of the infringement action is no longer clear. Another amazing
aspect is that the respondents' expert, Mr Steyn, in his affidavit on behalf of Northpark apparently understood
the claims but when he filed his affidavit on his and the third respondent's behalf some 10 months later it all
became opaque.
[20] Since patent cases are about construction and not deconstruction of a text it might be useful to have regard
to this statement:10
"The board adds that the skilled person when considering a claim should rule out interpretations which are illogical or
which do not make technical sense. He should try, with synthetical propensity i.e. building up rather than tearing
down, to arrive at an interpretation of the claim which is technically sensible and takes into account the whole
disclosure of the patent (Article 69 EPC). The patent must be construed by a mind willing to understand not a mind
desirous of misunderstanding."
[21] The first issue relates to the preamble of claim 13, which is in these terms:
"In combination of a plough tine having a lower extremity to which there is attached a digging blade, a fertilizer tube
and a seeding assembly . . ."
The claim then proceeds to recite the integers of claim 1. The complaint is that it is not worded as is the US
claim:
". . . a plough tine having attached to it a fertilizer tube and seeding assembly of claim 1, as well as a digging blade
attached to the lower extremity of the tine."
I fail to see the difference between the two.
[22] Integer D is about "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". The respondents say that they do not
know where to find this mounting means. The integer is, in my view, clear. It is a means to attach the tube
and closing tool to the frame in such a manner that they can be adjusted in relation to the frame. Had there
been evidence that the skilled person in the art could not, with reference to the specification, construct such
apparatus an argument of insufficiency could have been made but not one of lack of clarity.
[23] The last complaint relates to integer 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 case for the respondents is that it is not clear from the wording of this integer exactly how the second
mounting means enables the ground engaging means to effect the height adjustment. This, too, smacks of an
allegation of insufficiency without evidence to sustain it. The patentee's response was that the second
mounting means allows for the attachment of a wheel (the ground engaging means) to the tube and closing
tool in
Page 231 of [2011] 4 All SA 221 (SCA)
such a manner that the relative position of the wheel to the tube and closing tool is adjustable; and it is not
the mere presence of the wheel that enables height adjustment but the fact that the wheel is attached to the
tube and closing tool. Respondents' counsel did not deal with the response and I do not know why it is
wrong.
Obviousness: some legal concepts
[24] As mentioned, Murphy J held that the amendment could not be granted because it would not cure the
invalidity of the patent on the ground of obviousness. Before dealing with the facts of the case it might be
useful to restate some basic legal principles that appear to have been overlooked and that impact on the
case.
[25] As was explained in Roman Roller CC and another v Speedmark Holdings (Pty) Ltd 1996 (1) SA 405 (A) at 412H
413D, a patent may be granted "for any new invention which involves an inventive step" (section 25(1)). (In
what follows, I am dealing in a simplified manner with only those provisions that are relevant for this