the evidence does not show, directly or by way of inference, that this filter was supplied and installed before the
effective date. The witness who saw Viledon filters on the site before the effective date, Mr Schofield, was very
vague, understandably so, on what he had seen, and there is no reason why Mostert should have had a clearer
recollection of what, at the time, was an insignificant aspect of an otherwise mundane event.
It needs to be recorded that before the issue was raised during argument in this Court, counsel for the
patentee, perhaps blinded by the dust of the arena, failed to comprehend the import of the facts as they unfolded
during the trial. It is a valid criticism of the patentee's case that it never sought to establish the nature of the
Viledon filters as it was before the effective date of the patent. The case the patentee set out to make was that
Viledon filters could not have been on the market in South
View Parallel Citation
Africa before the effective date. The attempt was unsuccessful. However, the stance taken by the patentee at the
trial is understandable if regard is had to certain discrepancies in the documents and evidence, the late discovery of
documents found under strange circumstances by the appellant, the liquidation of the patentee's South African
agent (Brandt), the lapse of time, the absence of full and proper documentation and the unreliable memory of
witnesses whose honesty was not impeached. Nevertheless, the criticism raised is an important factor which should
be placed in the scale in deciding the probabilities.
Once the finding is, as it has to be in the light of all the evidence, that not all Viledon bag or pocket filters
necessarily fell within the scope of the patent, one
Page 253 of [1998] 1 All SA 239 (A)
cannot conclude with any degree of conviction that the filters known or sold in South Africa (or for that matter,
abroad) before the effective date fell within the scope of the claims of the patent. That disposes of the attack upon
the novelty of the patent.
Obviousness
The alleged lack of subjectmatter was based upon the evidence of Moldow, but his evidence on the issue was
destructive of the appellant's case. According to him, there was an urgent commercial need for the product because
he was unable to compete in the marketplace. The patentee began with research work during 1973 and allocated a
group of technicians to the project. Moldow, an expert in the field, acted as consultant. The project was successfully
completed only during 1975. The difficulty the patentee had in finding a solution for the known problem, given his
evidence that all the integers of the invention were known to him as an expert, belies any suggestion that the
invention could have been obvious. Nor does his evidence answer the question whether the invention (the specific
combination and interaction of the integers) was obvious to the ordinary worker in the art.
I find it unnecessary to deal in any detail with the evidence on the matter because it was not shown that the
trial judge had erred in his assessment. The only point that needs mentioning, is the argument that the Viledon
filter was part of what was common knowledge at the effective date of the patent. Assuming in favour of the
appellant that the filters referred to in the minutes of 18 March 1975 indeed became part of the common knowledge
before the effective date, the question remains what those filters were, and if the appellant could not discharge its
onus on this question under the heading of prior knowledge and use, it similarly failed to do so under the present
rubric.
Costs of the interim interdict proceedings:
The patentee applied for a temporary interdict which was not disposed of and the costs were reserved, either by
agreement or by court order, for the trial court. They were argued and MacArthur J, without supplying any reasons,
ordered the appellant to pay those costs. One can assume that he based his decision on the reasoning that the
appellant, having lost the main case, had no ground for opposing the interdict application. This was the approach Mr
Ginsburg submitted this Court should adopt.
View Parallel Citation
Mr Franklin, on the other hand, submitted that the patentee should have been ordered to pay the costs because
the application was not proceeded with, should never have been launched and that a false reason was given why
the application was not moved. These arguments, and others, were addressed to MacArthur J and there is nothing
to show that he did not have due regard to them. He was in the favourable position that he had the full application
record whereas only portions of the record were placed before this Court by the appellant. Even the notice of
motion is missing and, for example, only pages 1, 10, 14 and 15 of the founding affidavit are in the record. This
Court is therefore not in a position to reconsider the exercise of his discretion.
In the result
1.
the application for amendment of the "Response to Pretrial Questions" is dismissed with costs;
2.
the appeal is dismissed with costs;
Page 254 of [1998] 1 All SA 239 (A)
3.
the costs in par 1 and 2 include the costs consequent upon the employment of two counsel.