the patent (paragraph [9.2] of the particulars of claim). Again, I will reserve discussion of its more technical
aspects till later. It will be recalled that the alleged infringing conduct comprised the provision of an airtime
credit in the amount of R135 to the specified telephone number in terms of a "hybrid" prepaid contract. Again,
both Rathilall and Gathercole gave evidence about the nature of this contract, the latter confirming the
explanation provided in the rule 36(9)(b) expert summary.
[35] A hybrid prepaid contract provides for regular airtime credits to be provided in respect of the telephone
number that is the subject of the contract. The subscriber concludes a fixedterm contract (with a period of
two years or more) with the provider for the provision of a certain amount of airtime to be credited to his
airtime account on the network against a monthly debit of the same amount to his bank account. This usually,
if not always, occurs on the first day of the month. Should the airtime be depleted by the subscriber before
the next automatic recharge on the first of the next month, he may topup his airtime by purchasing a
voucher, or at a bank ATM, or by using the credit card recharge Autocharge (provided he is registered to do
so). Without getting into technical details, it may be helpful to mention at this point that Gathercole testified
that where such a contract applies no enabling or PIN code is provided to a subscriber for enabling the use of
the communication network. The provision of airtime credit, which allows communication via the network to a
predetermined extent to a subscriber, he said, does not depend on the feeding into the network of an
enabling code and there is no stock of enabling codes.
[36] In response to requests for further particularity with reference to claim 1, as it related to the hybrid contract,
the plaintiff indicated his reliance upon the method of obtaining airtime credit "by way of a signed debit order
in the bank account of the proprietor of telephone number 082 *** ****". The enabling code, he claimed,
was the instruction sent from a financial control system to the prepaid topup billing platform. And the manner
in which the relevant enabling code was provided to the subscriber was as an instruction from a financial
management system to the prepaid topup billing platform on behalf of and/or on request or on the
instruction of the subscriber. Similarly, for the purposes of claim 14, the enabling code was the instruction from
the financial management system to the billing platform, the exact transmission protocol being unknown to
the plaintiff, and the enabling code was provided to the user as airtime credit.
[37] It is convenient to interpose at this stage that the defendants submitted that there is no difference between
the "enabling code" as defined in the pleadings for the purposes of the act of infringement alleged in
paragraphs [9.1] and [9.3] of the particulars on the one hand and paragraph [9.2] on the other. The
significance of that submission will become more understandable later.
[38] At the commencement of the trial, the plaintiff 's position was that the manner in which the transactions took
place as pleaded in paragraphs [9.1] and [9.2] of the particulars of claim indicated to him that all the integers
of the claims of his patent, excluding claims 6, 8 and 23, are used or exercised in such transactions. The focal
point of the plaintiff's case,
Page 392 of [2009] 1 All SA 381 (T)
though, at least initially, according to the defendants, and as borne out by the evidence and the turn of
events during the trial, was the Autocharge system and not the hybrid prepaid topup. As the trial
progressed, however, the focus shifted to the hybrid system, until eventually the case for infringement based
on the Autocharge system was abandoned.
The amendments
[39] At the early stages of the trial, two amendments were made to the pleadings, which bear upon the case for
infringement based on the hybrid system. In the request for further particulars the defendants had asked
whether the plaintiff alleged that the provision of airtime credit as described in paragraphs [9.1] and [9.2] of
the particulars occurred in terms of the Autocharge facility as reflected on the website pages making up
annexure "B" to the particulars of claim. The plaintiff answered in the affirmative. It is selfevident, and
accordingly now undisputed, that the provision of airtime in the hybrid contract (paragraph [9.2]) does not
happen in this fashion. It occurs monthly in terms of the contract without any initiating action being required
on behalf of the subscriber. For that reason, an amendment was sought early during the trial to change the
original reply to reflect a negative answer to the question in relation to paragraph [9.2]. Not much turns on
this, except perhaps that it may add credence to the assertion of Mr Bowman, counsel for defendants, that
the plaintiff's complaint, and hence his own grasp of the claims of his patent, was primarily (if not exclusively)
about the infringing nature of the Autocharge system and its use to topup a hybrid contract (at the instance
of the subscriber where the contracted amount of airtime had been depleted before month end), and not
actually about the automatic monthly recharge of the hybrid contract itself.
[40] The second amendment also related to paragraph [9.2] of the particulars of claim. To begin with, the plaintiff
alleged that all the claims apart from claims 6, 8 and 23 were infringed. The aim and purpose of the second
amendment was to exclude from the infringement pleaded in paragraph [9.2] allegations that claims 4, 5, 7,
20, 21 and 22 were infringed by the hybrid system. These claims all relate to the use of a password; that is
the obtaining of a password from the subscriber and its verification in the subscriber database, and variations
of the method and system for that purpose. The amendment amounts to a concession that such integers are
not disclosed in the hybrid system where, unlike the Autocharge system, the airtime credit is generated
automatically on a monthly basis.
[41] The effect then of both amendments was that at the commencement of the trial the plaintiff alleged that all
the claims of the patent, except claims 6, 8 and 23, were infringed by the Autocharge system; and claims 13,
912, 1419 and 2428 were infringed by the prepaid hybrid contract.
A survey of the evidence related to the allegation of infringement by the Autocharge service