To succeed on this ground the appellant has to establish (see section 1(ix)(d) of the 1952 Act) that at the effective
date
(a)
the document "BB" was published,
(b)
there was a copy of it in the Republic,
(c)
and the document describes the invention.
To prove (a) and (b), the appellant relied on a compliments slip dated 15 September 1975, addressed to Mr Ubsdell,
to which "BB" (dated August 1975) was attached. The compliment slip was that of Brandt and not of the patentee.
Ubsdell no doubt received the compliment slip with "BB", but it is not possible to date the receipt. "BB", according to
other Brandt documents was replaced by another brochure dated March 1976. During preparation for the trial other
copies of "BB" were found in the possession of former clients of Brandt. Since the documentation relied upon
purportedly emanated from Brandt, I have some difficulty in comprehending how the facts (especially the dates)
they record are admissible against the patentee. Providing a copy to one person hardly amounts
Page 248 of [1998] 1 All SA 239 (A)
to a "publication", although it shows a willingness to publish. I should pause to point out that the patentee sought
to discredit "BB" and the compliments slip, contending that they were not genuine. Reason to suspect these
documents initially there certainly was, but the patentee's attack on them failed completely. It is not necessary to
reach a firm conclusion on whether the facts recited prove point (a) and (b) because of my conclusion on (c). On the
other hand, the facts recited do have an important bearing on prior knowledge and use, subjects I deal with later.
Document "BB" is a technical pamphlet dealing on the face of it with a particular Viledon filter, stated to be a
product of Freudenberg. The filter is identified as "Pocket Filter Type G 35/K", but the document does not state what
G 35/K signifies. Technical data accompanied by a graph
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with no descriptive importance or of any relevance in the present context are provided. There is a photographic
representation of the product and the text identifies its uses and sets out the following under four bullet points:
*
"Homogeneous connection of frame to filter pockets by hard polyurethane foaming process."
*
"Stable filter pockets are welded to form leakfree seams."
*
"Total media usage due to reliable spacer elements."
*
"Universal seal arrangement."
Netlon Ltd and another v Pacnet (Pty) Ltd 1977 (3) SA 840 (A) at 861H862B, summarised the principles involved:
"... the defence (or objection) of anticipation relates to the claims and not to the description of the invention in the body of
the specification in suit (see, too, the Letraset case (supra) at pp. 2645); the prior printed publication alleged to be
anticipatory must be construed, for the exercise is primarily one of construing and comparing the two documents; moreover
it must be construed as at the date of its publication to the exclusion of information subsequently discovered; the question
then considered is whether the prior publication 'describes' the invention in suit as claimed; that is, whether it sets forth or
recites at least the latter's essential integers in such a way that the same or substantially the same process or apparatus is
identifiable or perceptible and hence made known or the same or substantially the same product can be made from that
description in the prior publication; if the description in the prior document differs, even in a small respect, provided it is a
real difference, such as the nonrecital of a single essential integer, the anticipation fails; the opinions of expertwitnesses
that the prior publication does or does not anticipate a claim in suit must be disregarded for that is for the Court to decide."
A test referred to in Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA 589 (A) at 646FG was applied (at 866E)
"Hence for it to 'describe' the invented process etc, it must set forth or recite at least its essential integers in such a way that
the same or substantially the same process is identifiable or perceptible and hence made known, or the same or
substantially the same thing can be made, from that description. 'Substantially the same' means practically the same, or, to
use Lord Westbury's phrase adopted by Wessels JA, in Veasey's case, p 269, the same 'for the purposes of practical utility';
ie, substance and not form must be regarded."
Letraset Ltd v Helios Ltd 1972 (3) SA 245 (A) 267CE, emphasised that the court must look at a document through its
own eyes and not through the eyes of a
Page 249 of [1998] 1 All SA 239 (A)
skilled worker in the art. In support of the proposition, Jansen JA quoted what he called an instructive passage from
C van der Lely NV v Bamfords Ltd 1963 RPC 61 (HL) at 71 lines 519 (per Lord Reid):
"We were informed that this is the first case in which the question of anticipation has turned on the proper inference to be
drawn from photographs, although there have been cases of anticipation by published drawings. There is no doubt that,
where the matter alleged to amount to anticipation consists of a written description, the interpretation of that description is,
like the interpretation of any document, a question for the Court assisted where necessary by evidence regarding the
meaning of technical language. It was argued that the same applied to a photograph. I do not think so. Lawyers are
expected to be experts in the use of the English language, but we are not experts in the reading or interpretation of
photographs. The question is what the eye of the man with
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