are cursory or full may make all the difference in such decision". While I do not suggest that the reasons can be
other than the true reasons or that they need not be given in full, the above statement is not a realistic reflection of
what the basis for opposition to an amendment will be in practice. Patent specifications are technical documents of
importance only to persons involved in the particular art or science involved. The decision to oppose an amendment
will almost certainly be made only after a study of the specification itself and (almost invariably in practice) a study
of all publicly available literature in the field worldwide. This is normally obtained by way of a patent search. The
applicant's reasons play no role in this procedure and a dispute about the adequacy or otherwise of the reasons
will not assist the true purpose of the patent system and (otherwise possibly than causing delays) the purposes of
the objector. The purpose of this analysis of how objections are pursued is made merely to assist in determining
whether in the scheme of the Act those reasons are (or are not) to be viewed as matters for the registrar and not
the subject of a jurisdiction under section 51(10). The question is whether the subsection is to be so interpreted as
to allow of a patent being attacked (which patent was at the time either not open to public inspection or the
amendment of which had been advertised for opposition and not opposed) some (say) twenty years after the
amendment was entered in the patent register, on a ground of attack not sanctioned by section 61. Such an attack
if successful would only render the patent open to a renewed attack and revocation on grounds acknowledged by
the patentee at the time of the amendment and therefore corrected by the very amendment to be set aside.
The court a quo's approach to the question was a linguistic (or mainly a linguistic) one. There is of course
complimentary approach to the work of statutory interpretation. This is to examine the statute in the light of its
context. Context here is not limited to the language of the rest of the statute regarded as throwing light of a
dictionary kind on the part to be interpreted. It is the matter of the statute, its apparent scope and purpose, and,
within limits its background (see Jaga v Dönges NO and another 1950 (4) SA 653 (A) at 662G664H). As Schreiner JA
points out in this instructive passage the result should always be the same whichever of the two lines of approach
is adopted, since, in the end, the
Page 87 of [1998] 3 All SA 77 (A)
object to be attained is unquestionably the ascertainment of the meaning of the language in its context. Each
approach Schreiner JA observes has its own peculiar dangers (see also GE Trade Mark [1973] RPC 297 at 324).
However, if in this case the work of interpretation is undertaken in accordance with the second line of approach
one arrives again at the conclusion that the court a quo's interpretation is incorrect. This judgment cannot be
converted into a treatise on patent law and the purpose, scope and background of the statute must be stated in
rather
View Parallel Citation
broad terms. It is an act which, like its predecessors, is intended to give effect to the accepted basic theory of the
patent system which is followed throughout the developed world. From a statement of that basic theory the more
critical provisions of the Act can be identified.
The theory is that it is desirable in the public interest that industrial techniques should be improved. In order to
encourage improvement and the disclosure of improvements a person making such improvement is, upon disclosure
thereof, given a monopoly for a defined period after which the improvement passes into the public domain. A fuller
statement of this principle is found in the case of Lewis Berger and Sons Ltd v Svenska Ojeslageri Aktiebolaget
1959 (3) SA 604 (T) at 612AC. A further essential feature of the theory is that the patent register should not be
cluttered with patents which are not valid. Patentees are accordingly encouraged to review their patents in the light
of new information which comes to hand and, if this is called for, to amend them.
The Act thus establishes a register of patents to give public access to the disclosure made. The core (for present
purposes) of the Act is found in Chapter V sections 2543. The Act here follows the pattern of its predecessors.
What is to be protected is an invention that is broadly stated an improvement in technology which is new, useful
and inventive (or nonobvious). In accordance with modern international practice the standard set is publicly
available knowledge. The test of whether anything is patentable is found in section 25. In terms of that section
what is patentable is measured against "the state of the art immediately before the priority date of any claim (in
the specification)". The notion "state of the art" includes any matter which is available to the public by written or
oral description in South Africa or elsewhere, the object being to prevent the creation of monopoly rights in respect
of machines or processes already in the public domain. This shows why the lot of a draftsman of patent
specifications, and particularly patent claims, is (in common with WS Gilbert's policeman) not a happy one.
It is against this setting that the mechanism for the revocation of patents in section 61 and the provisions for
the amendment of patents in section 51 should be seen. One may appropriately ask what purpose would disputes
relating to the registrar's conduct (no doubt relevant for other purposes) serve to ensure that disclosures of
technological improvements are properly made and monopolies are limited to valid patents which claim no more
than is strictly justifiable. Procedural problems are not only different in character they are also subject to different
forms of control. Section 89 is a significant pointer to this. That section allows condonation of and the correction of
irregularities in procedure.
Seen in the light of this background section 51(10) must be interpreted as introducing a procedure comparable
in some respects to an appeal and in others to a review jurisdiction to ensure that the essential limits to the
amplification of the disclosure made and alterations to the boundaries of patent claims are observed. It is an
internal mechanism in the section to ensure that substantive amendments going beyond those permitted are not
entered on the register. I