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have become necessary to determine, in the light of such infringement, whether the patent had been
anticipated by the Cointel Autocharge system (not the hybrid contract). It was submitted on behalf of
Vodacom that there is no difference between the Autocharge system and the prepaid hybrid contract in so far
as these integers have relevance and hence that the patent in such event would be bad for lack of novelty
because of the prior use of the Cointel Autocharge system. There seems to me to be merit in that submission.
However, because of my finding on the question of infringement, there is no need to pronounce definitively
upon it.
[100] It remains though to consider whether the ITouch, Miller and EDS patents anticipated the patent in suit. I did
not understand Vodacom to abandon its claims in reconvention in the event of a finding of noninfringement,
and hence an appropriate determination is required.
Anticipation by the ITouch patent
[101] The ITouch patent was lodged on 2 February 1999; that is a year before the priority date (24 May 2000) of
the patent in suit. The specification states that the ITouch patent relates to a method of assessing
electronically the status of a client device as a prelude to charging the client with a store of resources
enabling it to operate, in particular as a member of a network of such devices. In particular, it relates to the
clearance, for online electronic charging, of a prepaid cellular number. Prepaid vouchers are available for
purchase by users of services such as those of cellular telephony, electricity and other utilities. In regard to
cellphones, printed vouchers are dispensed by sales agents to their customers. The agent requires clearance
from a principal before it may dispense valid vouchers. The specification provides a summary of the invention
in the following terms:
"According to the invention, a method of electronically allocating a resource to a client device includes the steps of
.
Providing a client device and a service platform capable of communicating with each other, the device being
remotely operable with respect to the service platform;
.
Setting criteria for defining a group of permitted client devices that are in good standing in relation to the
service platform;
.
Determining a group of permitted such devices that meet such criteria;
.
Causing the device to transmit and the platform to receive a signal;
.
Causing the platform to determine, from such signal, whether the device is a permitted device and, if so,
.
Causing the platform to enter into a transaction with the device whereby the device communicates a resource
allocation requirement to the platform;
.
In response thereto, causing allocation of a quantum of the resource to the client device and
.
Causing the platform to communicate advice of such allocation to the device."
[102] The ITouch patent comprises 43 claims. As stated in the Gentiruco case, supra, the objection of anticipation
relates to the claims of the patent in suit and not the description of the invention in the body of the
specification. The alleged anticipation by the ITouch document of the claims of the patent in suit is dealt with
in some detail in the summary of the opinions of Messrs Vlok and Gathercole, filed on behalf of Vodacom in
terms
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of rule 36(9)(b), and confirmed by Gathercole in oral testimony. The plaintiff in his rule 36(9)(b) notice has
narrowed the range of the dispute considerably. He deals with the ITouch patent in paragraph [7] of the
notice. He avers therein that he has read and understands the document and would testify that the ITouch
patent did not disclose a subscriber database whereby a subscriber's details are remotely verified and also
did not disclose a database which includes a plurality of subscribers, and consequently the invention as
claimed in the patent in suit is not disclosed in the ITouch patent. The integers of the claims of the patent in
suit to which these assertions relate are integer (c) of claim 1 and integer (d) of claim 15. Claim 1(b), we may
recall, speaks of a method including "remotely identifying the subscriber" with claim 1(c) including the
verification of subscriber details with reference to the subscriber details stored in a subscriber database; and
claim 15(a) involves a system including "verification means for verifying subscriber details with reference to the
database". The database is that contemplated in integer (b) of claim 15, namely: "a database including data
on a plurality of subscribers requiring use of the communication network". Claim 16 adds an integer that the
database includes financial data on each of the subscribers, the system being configured to update the
database to reflect each transaction with each subscriber. The plaintiff confirmed during his testimony that the
dispute regarding the ITouch patent was limited to such extent.
[103] In the body of the ITouch specification (at 4) we find the following statement:
"In a still further preferred form of the invention, the method includes the step of forming a database containing
information on the group of permitted client devices. The database may include information providing unique identity
related information in respect of each permitted device. Further, according to the invention, the signal from the device
includes an electronic mailbox number and a personal identity number (PIN)."
At 6 the specification elaborates:
"The platform service will request and check the caller's MSISDN, so as to establish whether the calling device is
being operated by a permitted caller. If so, the service checks the mailbox number and PIN entered by the caller. If
these are accepted by the database server, the system presents the caller (via the device) with a menu of options,