has a particular characteristic, it is a value carrying enabling code.
[85] Moreover, the hybrid contract system did not solve the problem which led the plaintiff to conceptualise his
invention in the first place. Were he to travel today through North West in the middle of the night and his
R135 monthly airtime recharge were to become depleted he would be in exactly the same position as he was
that night in late 1999. He would still need to top up either by means of a voucher, scratch card, ATM topup
or credit card Autocharge. The hybrid contract does not embody the inventive concept that came to the
plaintiff's mind that night. The Autocharge service is more in line with what he had in mind.
[86] It is permissible also to have regard to the manner in which the plaintiff implemented his invention in the
Prepaid Online system as part of the extratextual context, or background circumstances, demonstrating the
purpose of his patent. The marketing proposal (exhibit "A213") states that "subscription enables the end user
to purchase prepaid airtime vouchers directly from their handsets" and that "all prepaid vouchers are
delivered to the end user by SMS". The plaintiff 's evidence accorded with what is set out in the proposal. This
discloses that up to the time of trial the plaintiff considered the enabling code of his invention to be an
enabling code of the kind linked to an airtime voucher.
[87] Besides all of that, I am persuaded that the plaintiff changed his evidence regarding the sequence of the
steps for the purpose of "shoehorning" the prepaid hybrid system into the ambit of the claim. During his
crossexamination on infringement he readily accepted the proposition put to him by counsel that the integers
of claim 1 proceeded in sequence. During crossexamination in rebuttal, after he had dropped the case for
infringement by the Autocharge service, he qualified this, saying that while there is a sequence "they do not
necessarily have to be in the same order every time. . .". The likely, if not transparent, motive for this change
or qualification was to fit the hybrid contract into the claims in a manner in
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which integers (e) and (d) precede chronologically integers (b) and (c), which is what in fact happens on the
monthly occasion of a recharge where the provision of the enabling code, the feeding into the network and
the provision of airtime transpire before any identification and verification of the subscriber details and
financial information; if the latter does indeed occur.
[88] Finally, whereas I am prepared to accept that the communication of the message containing the data of the
MSISDN, the TID and the airtime value comprises the transmission of enabling data with obvious functionality,
I do not believe that such is the enabling code intended to be conveyed in the specification. The expression is
first used in the opening paragraph of the specification which discusses the "pay as you go" in the prior state
of the art. There it is said: "The voucher provides an enabling or PIN code that is fed into the network via the
cell phone thereby to enable use of the network for the selected value." The code intimated by the term
"enabling code" is the 12digit PIN recorded on a voucher or scratch card fed into the network by the
subscriber from his own handset. Such action and data (enabling by means of a code) precede the
transmission of data within the network.
[89] In the premises, I accept the submission of the defendants that no enabling code is fed into the network for
the prepaid contract hybrid system, unlike the case with the code of a scratch card or electronic voucher.
What the plaintiff would now have be the code is in fact a recharge instruction generated within the system
on the tandem and sent within the system to the IN platform. There is no feeding into the network of this
instruction. Integers (d) and (e) of claim 1 are therefore not present in the hybrid system, nor integer (d) of
claim 14, nor integers (e) and (f ) of claim 15. Moreover, with reference to integer ( e) of claim 15 there is no
stock of enabling codes in the hybrid system. The functional information that is transmitted to effect the
monthly recharge does not come from a stock of codes, but is generated from the programme or the
operational function on a timed basis.
[90] Absent these integers, the contract prepaid hybrid system does not infringe claims 1, 14 or 15 of the patent
or any of the subsidiary claims.
[91] The defendants further maintain that integers (b) and (c) of claim 1, integers (b) and (c) of claim 14 and
integers (c) and (d) of claim 15 regarding remote identification and verification are also not present in the
hybrid system. Gathercole's evidence on these integers is somewhat ambiguous. When asked during his
evidenceinchief whether there is any provision for any identification of the subscriber and any verification, he
replied that the tandem will know the MSISDN value, but from the contract it is possible to verify the
subscriber details on record. He also acknowledged that there was an initial identification when the subscriber
dialled 100 to activate the agreement. The plaintiff seized upon this evidence as indicating the presence of
the identification and verification integers. I think not. The specification read as a whole conveys the
impression that remote identification and verification occurs with each request for a recharge and is for the
purpose of providing the enabling code. Gathercole's evidence that the hybrid recharge happens
automatically, and can take place even while the cellphone is switched off, means
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that there is no simultaneous remote identification and verification on each monthly renewal. The information
is not interrogated by the system at the time of recharge. The entire transaction is generated within the
system and involves no action by or interaction with the subscriber. The plaintiff 's case against the hybrid
system therefore fails on integers (b) and (c) too.
[92] In the result, the action for infringement falls to be dismissed.
Invalidity: Anticipation