network in order to obtain airtime credit (a system or method he described for convenience as a "triangular
code system"). In his submission, it is not necessary for the enabling code to be returned to the subscriber
and for the subscriber to feed it into the network to be provided with airtime. He contended that the enabling
code can be sent directly to the subscriber's account on the intelligent network ("IN") this he called a "linear
code system".
[80] The defendants submitted on the contrary that a proper interpretation of claim 1 revealed that the claim
provided for a sequence of steps in the method of enabling use of a communication network to which the
claim relates. The first step, integer (b), is that the subscriber must be remotely identified; the second, integer
(c), requires there to be verification of the subscriber's details stored in a database; the third, integer (d)
requires selectively providing the subscriber with an enabling code with the function provided for in integer
(e); and the fourth step requires that the enabling code, after having been provided to the subscriber, must
when fed into
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the communication network (clearly by the subscriber who has been provided with the enabling code), provide
the subscriber with airtime which allows communication via the network to a predetermined extent, such
extent corresponding to the value of the enabling code. The defendants thus submitted that the enabling
code must be a value carrying enabling code which the subscriber can feed into the communication network.
[81] The plaintiff contended that there is nothing in the body of the specification or the context that supports the
defendants' construction of the claim to require a sequential, triangular code system. In support, he referred
to at 5 of the specification which states that the method may include obtaining the enabling code from an
enabling code dispensing means which has a stock of enabling codes in electronic form. Such, to my mind,
does not buttress the plaintiff's interpretation. On the contrary, it points to a sequential triangular
arrangement involving the subscriber obtaining the code from an enabling code dispensing means, such as an
ATM, which has a stock of codes in electronic form.
[82] In addition, relying on dictionary definitions of enable ("to make able") and code ("a system used for brevity or
secrecy of communication, in which arbitrary chosen words, letters or symbols are assigned definite
meanings"), the plaintiff submitted that the term requires no more than that a series of symbols transmitted
to the IN causes something to happen. Such was the case in the hybrid, he said, as was evident in the
debate about the functionality of the message that took place between counsel and Gathercole during cross
examination.
Excessive peering at the language in this way in the present case, to my mind, divorces the claim from its
context. The immediate textual context of the concept of an enabling code, as used in claim 1, is found in
claims 1012, being subsidiary claims to claim 1. They include the obtaining of enabling codes from a supply of
enabling codes (claim 10), including selecting a voucher from a stock of vouchers on which the enabling codes
are provided (claim 11), or from enabling code dispensing means which has a stock in electronic form (claim
12). The relationship between the voucher and the code as reflected in claim 11 accounts for Gathercole's
understanding (as a skilled addressee) that the enabling code was data of the kind normally provided on a
voucher in the "pay as you go" system to a subscriber for the purpose of the subscriber, rather than a
computer, feeding it into the network. Similarly, the final paragraph of the specification clarifies the object or
purpose of the invention to be:
"an enhanced method of, and system . . . for enabling use of a communication network by a subscriber. The method
enables dispensing of enabling codes or vouchers to a cellular telephone user remotely without the need for the
subscriber physically to obtain a voucher from a service provider."
What the invention aims at is the substitution of the voucher by the provision of the same information to the
subscriber by different means. The idea that came to the plaintiff was to find a method whereby the need to
stop and purchase a voucher could be obviated. His idea was that the information to be fed into the network
could be transmitted to him by other means. Both the body of the specification and the other claims (1012)
substantiate that. There is no reason why guidance may not properly be obtained from a subordinate claim
(as part of the textual
Page 407 of [2009] 1 All SA 381 (T)
context) on the true construction of the antecedent claims to which it is appended (Glaverbel SA v British Coal
Corporation and another 1995 RPC 255 (CA) at 281).
[83] The reasonable person familiar with the state of the art would have understood the claims to be aimed at
that end. The plaintiff, himself a reasonable addressee, albeit indirectly the author, confirmed that such was
indeed the idea and object of the invention during crossexamination in the following exchange:
"Counsel:
So the invention is going to be applied to that recharge, buy the voucher, type in the PIN and when it
is exhausted, you buy another one. Now your invention is addressing an alternative way of doing
that. Is that correct?
Plaintiff:
That is correct, my lord.
Counsel:
The idea as we understand it; is to replace that old voucher with one that can be purchased safely
but remotely.
Plaintiff:
That is correct my lord."
[84] The plaintiff earlier in his crossexamination conceded that the specification and the claims provided for a
sequence of steps which must be carried out in the method in a particular order and that the enabling code