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work to update the correct subscriber account on the network, and thus working together had a functionality.
When it was put to him that such data constituted a code, he qualified his earlier answer by stating that the
data:
". . . was purely information applied to the IN and the functionality sits on the IN and it says I know when I get this
message with these three fields in it, then I must update the account. So the functionality resided on the IN and not
on the message."
Counsel pressed the point further. He referred to the 12 digit PIN code obtained on purchasing a voucher or
scratch card in the "pay as you go" system, which Gathercole acknowledged to be a code fed into the prepaid
front end ("PPFE"), which the PPFE in turn validated. Gathercole accepted as correct that the PIN code so fed
in has no other function other than being recognised by the PPFE, which in turn initiated all further processes
and action required to update the subscriber account. On this basis, it was put to Gathercole that the code
sent in the batch process (under the hybrid system) has exactly the same functionality as the PIN code on the
scratch card or voucher. To this Gathercole replied:
"Sir, the exact same message that is sent to the IN to actually update the account for, if it is for the batch, is exactly
the same message that is sent if it was a voucher or scratch card that was used . . . There is no difference. The batch
process actually just determines the amount and the validation process for the voucher determines the associated
amount with that voucher. It is the same that goes to IN."
The abandonment of the case of infringement based on the Autocharge system
[71] At the close of his crossexamination of Gathercole, counsel for the plaintiff indicated that he did not propose
to crossexamine the witness on the Cointel Autocharge system. He informed the court that his instructions
were not to persist with the allegations in paragraphs [9.1] and [9.3] of the particulars of claim. He stated the
reason for doing so as follows:
"The reason being we do not believe the integers are there, but more importantly the court has heard the evidence,
the commercial ramifications of Cointel are just not worth prolonging this trial for another week and I am not going to
ask further questions and I am not going to argue that the court should find an infringement based upon the Cointel
system."
Thereafter the plaintiff was recalled in terms of rule 39(13) to give rebutting evidence on the issues of
invalidity raised by the counterclaim.
[72] I will return to the question of invalidity later. But during the course of his crossexamination in rebuttal, the
plaintiff confirmed in relation to the case for infringement based on the Autocharge system that he had
reached the conclusion, after listening to the evidence, that the integers were not disclosed. In particular, he
stated that after hearing Gathercole's evidence on the enabling codes he realised that the enabling code in
the Autocharge system "was never there", since the Autocharge system had never changed from inception in
1998. When it was put to him that such a stance ignored Gathercole's evidence that there was no difference
between the information transmitted in both instances of Autocharge and hybrid (such information the plaintiff
claiming to constitute a code), the
Page 403 of [2009] 1 All SA 381 (T)
plaintiff responded that there is a different procedure in place relating to the batch process that in his mind
created an enabling code. His precise meaning remained somewhat obscure. However, later in the cross
examination, in response to the same question, he explained:
"Because there is a different transaction flow, for instance on the Autocharge side there is an intime checking of the
availability, checking of funds that comes back with transaction information from the bank. That transaction
information is married to the instruction that is sent to the IN platform so that if there is a failure it can be checked at
a later stage. The instruction that is sent to the IN platform from the prepaid front end (PPFE) where prepaid top up
(hybrid) is concerned is actually sent without financial record information. As Mr Gathercole explained, it is an
instruction containing the type of recharge, the value of the recharge and the telephone number and as he explained
it has nothing to do with the financial instruction because it runs separately from each other and that is my stance."
[73] I will return to other aspects of the plaintiff 's evidence when considering the argument on infringement.
[74] Mr Bowman submitted that the real reason for the plaintiff abandoning the allegations of infringement by the
Autocharge system is because the latter evidently anticipated the patent in suit. Much of the plaintiff's case
was aimed at establishing that the integers were present in the Cointel system. The defendants conceded
the existence of the integers of remote identification and verification in relation to the Autocharge system. If
integers (d) and (e) of claim 1, the enabling code, are found in the hybrid system, such being allegations with
which the plaintiff persisted, and accepting Gathercole's evidence that the message transaction between the
computing elements is the same message in all recharges, an infringement by the Autocharge system could
have been established by virtue of all the integers being present, but a finding of invalidity on the basis of
anticipation would have followed. The unassailable evidence of both Rathilall and Gathercole established that,
whether or not the integers were present, the Cointel system was in operation from a date prior to the
priority date of the patent. The plaintiff abandoned the cause of action because that case could not answer
the case of prior use, which would have meant the patent was bad.
[75] I agree with Mr Bowman's submission. Moreover, the changing and evolving nature of the plaintiff 's case
throughout and before the trial redounds negatively upon his credibility. Such inclines me to accept also
Gathercole and Rathilall's account of how the Cointel Autocharge operated initially, as corroborated by much
of the contemporaneous documentary evidence, in preference that of the plaintiff. However, given the
concession regarding the Autocharge system, and because of my ultimate conclusion, I see no call for a