Nampak Products Ltd and another v ManDirk (Pty) Ltd
[1999] 2 All SA 543 (A)
Division:
Supreme Court of Appeal
Date:
26 March 1999
Case No:
162/97
Before:
Vivier, Howie, Schutz, Plewman JJA and Melunsky AJA
Sourced by:
JJF Hefer and I Potgieter
Summarised by:
G Harris
Parallel Citation:
1999 (3) SA 708 (SCA)
. Editor's Summary . Cases Referred to . Judgment .
Patents Infringment of Party alleging patent infringement has to show that all features or limitations of the claim are
present in article allegedly infringing patent Whether features of invention taken represent all essential features of the
claim is a question of construction.
Editor's Summary
The Appellants were the registered joint proprietors of a patent in respect of an invention entitled "Pressure
Resistant Bag", used in support systems in mines. The Respondent manufactured and sold a competing product.
The Appellants alleged that their patent had been infringed and applied for a permanent interdict restraining the
Respondent from selling or offering its product for sale and for an order for the deliveryup of any infringing bags.
The court a quo dismissed the application.
On appeal, the Court was required to decide whether the Respondent's product infringed the Appellant's patent.
Held The Court stated that infringement proceedings are concerned only with the invention claimed. In casu there
was no evidence to show that the patent should be read in a manner which would give the words of the claim a
meaning other than their primary meaning.
The Court held that the Appellants had to show that all of the features or limitations of the claim were present. It
noted that it was common cause that the Respondent's product was very similar to the patented product. The Court
only had to decide whether or not Respondent's product included a second bag, ie whether the sleeve of its bag
was a second bag.
The Court found that there was no room for the application of the concept of a purposive construction in
interpreting the patent specification. Whether the particular features of the claimed invention taken by the alleged
infringer represent all the essential features of the claim remains a question of construction. A test which
necessitates extrinsic evidence will be inappropriate in most cases.
The Court noted that the patent in casu did not involve technical complexities. The words of the claim were
ordinary English words clearly used in their ordinary connotation and the claim was unambiguous. There was
nothing that would justify a reference either to phraseology in the body of the specification or to extrinsic evidence
relating to the art. The claim in issue should be read in its own terms.
The Court held that the patentee should be understood to have intended that effect should be given to the
limitation to the claim which followed from the use of the words "second bag". The Respondent's product did not
have a second bag and therefore did not infringe the claim.
The appeal was dismissed with costs including the costs of two counsel.
Page 544 of [1999] 2 All SA 543 (A)
Notes
For Patents, see LAWSA (Vol 20, paragraphs 165)
Cases referred to in judgment
("C" means confirmed; "D" means distinguished; "F" means followed and "R" means reversed.)
South Africa
Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA 589 (A) F
Multotec Manufacturing (Pty) Ltd v Screenex Wire Weaving Manufacturers (Pty) Ltd 1983 (1) SA 709 (A) D
Selas Corporation of America v Electric Furnace Co 1983 (1) SA 1043 (A) D
Stauffer Chemical Co and another v Safsan Marketing and Distribution Co (Pty) Ltd and others 1987 (2) SA 331 (A) D
Sappi Fine Papers (Pty) Ltd v ICI Canada Inc 1992 (3) SA 306 (A) D
Public Carriers Association and others v Toll Road Concessionaries (Pty) Ltd and others 1990 (1) SA 925 (A)