De Beers Industrial Diamond Division (Pty) Ltd v Ishizuka [1980] 3 All SA
447 (1980 (2) SA 191) (T)
404
EnsignBickford (SouthAfrica) (Pty) Ltd and others v AECI Explosives &
Chemicals Ltd [1998] 4 All SA 453 (1999 (1) SA 70) (SCA)
420
Gentiruco AG v Firestone SA (Pty) Ltd [1972] 1 All SA 201
(1972 (1) SA 589) (A)
383
Jaga v Dönges NO and another; Bhana v Dönges NO and another [1950] 4
All SA 414 (1950 (4) SA 653) (A)
404
Monsanto Co v MDB Animal Health (Pty) Ltd (formerly MD Biologics CC)
[2001] JOL 7939 (2001 (2) SA 887) (SCA)
404
Power Steel Construction Co (Pty) Ltd v African Batignolles Construction
(Pty) Ltd 1955 (4) SA 215 (A)
383
Schlumberger Logelco Inc v Coflexip SA [2002] JOL 10174
(2003 (1) SA 16) (SCA)
420
Stauffer Chemical Co and another v Safsan Marketing & Distribution Co
(Pty) Ltd and others 1987 (2) SA 331 (A)
383
VariDeals 101 (Pty) Ltd v Sunsmart Products (Pty) Ltd [2007] JOL 20698
(SCA) ([2007] SCA 123 (RSA))
405
United Kingdom
Glaverbel SA v British Coal Corporation and another 1995 RPC 255 (CA)
407
KirinAmgen Inc and others v Hoecsht Manon Róusel and others [2005] 1
All ER 667 (HL)
405
Mölnlycke AB and another v Procter & Gamble Ltd and others (5) (1994)
RPC 49 (CA)
420
Page 383 of [2009] 1 All SA 381 (T)
Judgment
MURPHY J:
[1] The plaintiff is the proprietor of patent 2002/1924, which is for an invention entitled "Communication
Systems". He has instituted action in the Court of the Commissioner of Patents for an interdict restraining the
defendants from infringing or aiding and abetting the infringement of the patent. Section 45(1) of the Patents
Act 57 of 1978 ("the Act") provides that the effect of a patent is to grant the patentee, for the duration of the
patent, the right to exclude other persons from making, using, exercising, disposing or offering to dispose of
or importing the invention defined in the claims of the patent, so that he will enjoy the whole profit and
advantage accruing by reason of the invention.
[2] The first defendant is Vodacom (Pty) Ltd and the second defendant is Vodacom Service Provider Company
(Pty) Ltd. The first defendant constructs and maintains a GSM cellular network in South Africa. The second
defendant is a cellular service provider that utilises the first defendant's cellular network. Throughout the trial
the defendants were referred to collectively as "Vodacom". As relief is sought against them jointly arising out
of the same alleged conduct there is no objection to referring to them as such, and I will do likewise in this
judgment.
[3] Vodacom denies that it has infringed the plaintiff 's patent through use of the plaintiff's invention in its
products, services and/or intelligent communication network methods and systems; and claimed further that
the patent was in any event invalid for lack of novelty and for being obvious. It raised two other defences in
its plea, namely: the invention of the patent is not patentable in terms of section 25(2)(e) of the Act in that it
consists of a scheme, rule or method for performing a mental act or doing business; and further that the
claims of the complete specification are not fairly based on the matter disclosed in the specification. It became
evident at the conclusion of the trial that Vodacom did not persist with the latter two defences. Nothing
further therefore need be said about them.
[4] In order to decide whether Vodacom's products and services etcetera infringe the patent it is necessary to
determine what the essential integers or features of the claims of the patent are; the precise scope of the
invention or monopoly being defined by the claims of the patent specification. If all the essential integers of a
claim are present in the targeted Vodacom products, such will infringe the patent (Stauffer Chemical Co and
another v Safsan Marketing & Distribution Co (Pty) Ltd and others 1987 (2) SA 331 (A) at 347AD). The task at
hand, thus, is to ascertain what the language used in the specification means. The specification must be
construed like any other document, mindful of the objects of the specification and its several parts (Power
Steel Construction Co (Pty) Ltd v African Batignolles Construction (Pty) Ltd 1955 (4) SA 215 (A) at 224A). The
claims of a patent specification do not constitute a separate document in any sense, but remain part of a
specification which should be interpreted as a whole. Every portion of the specification is to be read with
reference to the other portions of the document whether they precede or follow (Gentiruco AG v Firestone SA