[42] Despite the case based on the Autocharge system having been abandoned, in order to understand other
aspects of the case overall it is still necessary, as I have said, to canvass the evidence in relation to it in some
detail. The thrust of Gathercole's evidence was that in the Autocharge service the PIN code provided to the
subscriber does not when fed into the system
Page 393 of [2009] 1 All SA 381 (T)
by the subscriber provide the subscriber with a predetermined amount of airtime credit without any further
action on the part of the customer. No predetermined amount of airtime credit is associated with the PIN
code issued to the subscriber. When the subscriber feeds the PIN code into the network it serves as a
password to verify the customer and he or she must thereafter select a recharge value, which, once selected,
will be credited to the subscriber's account on the network. Furthermore, the entry of the PIN and the
selection of the recharge value will only be effectuated if permitted by the Autocharge threshold and the
subscriber's credit status with the bank. This testimony, as I understand it, seeks to distinguish the PIN used
as a password in the Autocharge service, and the PIN used in the preexisting "pay as you go" system where
the voucher or scratch card provides a PIN (described in the specification also as an enabling code) which the
subscriber feeds into the network from his handset to enable use of the previously selected value. The point
at hand being that Gathercole was of the opinion that integers (d) and (e) of claim 1, integer (d) of claim 14
and integers (e) and (f ) of claim 15 are not found in the Autocharge service. At the conclusion of Gathercole's
evidence, the plaintiff agreed with that opinion and abandoned the case predicated upon his earlier contrary
opinion.
[43] Both Rathilall and Gathercole testified that the Autocharge service operated from about June 1998, initially
under the auspices of Cointel (Pty) Ltd. Gathercole started researching and assessing the system in mid 1997,
completed the design in February 1998 and put it into production in about June 1998.
[44] In order to understand the plaintiff 's motivation in abandoning the case for infringement based on the
Vodacom Autocharge system it will be helpful to reflect briefly on the plaintiff 's idea and the evidence
regarding the provenance of the Autocharge system. Given that the approach to determining an infringement
involves the narrower inquiry of establishing whether or not the conduct comprising the alleged infringement
falls within the scope of any of the claims of the patent, such evidence strictly speaking may be irrelevant and
hence inadmissible in the determination of the question of infringement. However, now that the allegation
based on the Autocharge system has been abandoned, there can be little quarrel about considering it as
background relevant to the remaining issues.
[45] The plaintiff testified that the idea for his patent came to him late one night while he was driving through a
remote part of North West Province. His fellow passengers were asleep and he wished to keep awake by
engaging in a telephone conversation with his business partner. He operated his cellphone on a "pay as you
go" system. During the telephone call to his partner he ran out of airtime and could find no facility to purchase
a voucher to upload more. This set him thinking that there should be a method and system whereby a
subscriber could remotely load airtime by simply using his cellphone handset. He thus conceptualised a system
whereby the subscriber would be permitted to use a communication network involving remote identification
and verification of personal particulars and financial data (creditworthiness) from a database enabling the
subscriber to be awarded airtime directly. He discussed the matter with his attorneys and later filed the
patent specification in May 2000. He
Page 394 of [2009] 1 All SA 381 (T)
immediately set up a business based in Nelspruit which traded as "Prepaid Online" ("PPOL"). The manner in
which PPOL functioned is explained in a marketing proposal presented by the plaintiff to Vodacom in January
2003 (exhibit A210215). The proposal explains that PPOL offers an "Mcommerce solution" which enables
users of a prepaid cellular system to purchase their airtime recharge vouchers or any other value carrying
enabling code from their handsets in the safety of their homes or while on the move. The proposal states
further that PPOL had patented a specific way of requesting, paying for and delivering a value carrying
enabling code for any resource specific service driven entity:
".
Requesting a service from a distribution agent by identifying yourself via CLIP (caller line identification).
.
Paying for the service in advance and specifying a default product to receive when requesting such.
.
The product or enabling code being delivered by the short message platform for the requesting device."
[46] The marketing proposal elucidates further that PPOL is a technology that is most visible for the end user of
prepaid products. At that time those products available were: Telkom Prepaid, Vodacom Prepaid, MTN Prepaid
and Cell C Prepaid. The simple idea is that the user can request any product using the encoded SMS protocol
request command, enabling the subscriber to request any product from the PPOL system to be delivered to
him or even a third party. All prepaid voucher products are delivered to the subscriber handset by SMS. The
plaintiff elaborated in his testimony that the stock of enabling codes was uploaded into the PPOL system by
PPOL purchasing a large number of scratch cards (vouchers) with staff manually entering each scratch card or
voucher PIN into the system. Each entry (as with each voucher) was associated with an airtime value (R29,
R50, R100 etc). End users wanting to use the system would have to subscribe to the PPOL system and be
entered (by a process of registration) as a user on the PPOL database. In its original form the end user
chooses a default recharge value on enrolment. A subscriber needing airtime initiates a recharge request by
making a call to the PPOL recharge number. The call is not answered and is thus free of charge. The PPOL
system will, however, use the information transmitted by the telecom switch to identify the user. The user can
request any product on the system by SMS. The product is then sent to the end user handset by SMS. The
system so operated is a prepaid system in the sense that the delivery of prepaid vouchers (airtime) was