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finding on the facts in or of this application that the fact that a machine cannot do something is not a valid
basis for objecting to the amendment of a patent.
[65] I find Mr Rademeyer's argument not cogent for the following reasons, to name a few:
65.1 The contentions advance are in my considered view and finding irrelevant to the enquiry on fair basis.
65.2 His allegations in this regard constitute inadmissible opinion evidence from an attorney who has no
technical expertise in relation to shuffling cards. The fact that he has an engineering degree does not
make any meaningful impact on my abovementioned view because it was not shown that his
qualification as an engineer has any relevance or connection to the work of card shuffling.
65.3 His point of view cannot be authority to technically contradict the applicant's founding affidavit
deponent, Mrs Farrar, who has a chemical engineering degree, thus equating to something like a
stalemate.
[66] When regard is had to the accepted default position in applications of this nature, that applications for
amendment of patents ought to be generally allowed unless there are compelling reasons to the contrary, it
is my further finding that the applicant have made out a case for amendment when this ground is considered.
The respondent's objection, therefore, stands to be disregarded or dismissed on this ground.
A plate member with bevelled surface/rack assembly
[67] In the unamended claim 29, each card receiving compartment has (i) a top surface; (ii) a card supporting
surface; (iii) can receive more than one card; (iv) wherein each card receiving compartment comprises a plate
member that includes a bevelled surface.
[68] It is the respondent's case that the generalised disclosure of the invention in the specification explains that
the top surface of the card receiving compartment comprises the plate member with a bevel edge. The leading
edge of the card being driven into the compartments of the rack assembly hits the bevelled edge located at
the underside rearmost surface of the plate, causing the card to fall down on the top of cards already in the
compartment, such that the card comes to rest properly in the compartment or on the uppermost card or
cards already in that compartment. Furthermore, the only bevelled surface disclosed in the specification is
surface 130 which (i) is shown in Figure 5A as planar; (ii) extends the entire distance between the lower and
upper surfaces of the plate 104 so as to join the lower surface of plate 104 at an obtuse angle as well as so
as to form a sharp edge where it intersects an upper surface of plate 104 at the edge of the plate.
[69] It is the respondent's further case or contention that the bevelled plate member disclosed in the specification
is, therefore, a feature of the top of the compartment and the bevelled edge a feature of the underside
rearmost surface of the plate.
[70] According to the respondent further there is no disclosure in the specification of a bevelled surface other than
one which has the features mentioned above, which makes the proposed amendment's attempt to
Page 368 of [2014] 1 All SA 355 (GNP)
allegedly redefine the bevelled surface as being located on the same side of the plate member in each
compartment improper as the limiting features are being disregarded.
[71] The respondent's understanding of the proposed amendment to claim 29 means that the bevelled plate
member could also be a feature of the card supporting surface where the bevelled edge is located on the
uppermost rearmost surface of the plate; the net effect thereof being that when the leading edge of a card
hits one of the bevelled surfaces in the rack assembly, the bevelled edge located in the upper side of the
plate would cause the card to access a compartment above the plate so as to function in a manner directly
opposite to that described in the specification as read with unamended claim 29.
[72] The above, according to the respondent is one of cornerstones of its objection: It submits that how the
proposed amendment would ultimately work out is clearly not the natural operation of the invention described
in the specification, as the invention is wont, this time, to operate in exactly the opposite manner. That is why
it submitted and argued that what is proposed to be claimed in claim 29 not only introduces new matter as
well as matter not in substance disclosed in the specification, but also is not fairly based on matter disclosed
in the specification, which is one of the aspects discouraged in Bateman (supra). It (respondent) charges that
the applicant impermissibly seeks to claim more than what is disclosed and identified as the invention in the
specification and that the proposed amended claim is for something that is not covered by the general or
generalised disclosure of the invention in the specification. Furthermore, it is the respondent's argument that
as required in the Mullard Radio Valve Company case (supra), there is no "equiparation" between the matter
disclosed in the specification and the invention as claimed in the proposed amended claim.
[73] I am not convinced, when the totality of all the facts, circumstances and inherent probabilities herein are
anything to go by, that in its preamended form, claim 29 contains limitations, especially to the effect that:
". . . the top surface of the card receiving compartment comprises the plate member with a bevelled edge . . . "
The diagrams I have seen and the explanatory memoranda as to how they are and operate, in my view do not
point to any such limitation to the effect that:
". . . the bevelled surface is planar and does not contain any wording which might suggest that the bevelled surface
extends the entire distance of the plate."
[74] It is obvious that Mr Rademeyer seeks to read the above limitations into claim 29 in its preamended form on