appropriate engineering skill and experience would see in the photograph, and that appears to me to be a matter for
evidence. Where the evidence is contradictory the Judge must decide. But the Judge ought not, in my opinion, to attempt to
read or construe the photograph himself; he looks at the photograph in determining which of the explanations given by the
witnesses appears to be most worthy of acceptance."
Mr Franklin used the quotation for another purpose, namely to impress upon the Court that it should refrain from
interpreting the photograph in "BB" but should be led by what the witnesses had to say about it. I will limit myself
to say that my impression is that lawyers are no longer expected to be experts in the use of any language;
photographs moving or still form part of everyone's daily diet but seldom require much by way of expertise to
enable them to be "read"; if anything, I would underline the concluding words.
Mr Moldow, the appellant's expert, when shown the photograph on "BB" and having his attention drawn to a
black line inside the filter pockets was asked the leading question one of many whether he saw a weld line.
Moldow did not accept the suggestion and identified the line as a small thin steel rod or wire cast into the support
frame. He expressed the opinion that the filter pockets shown were not selfsupporting.
Undaunted by this evidence, Mr Franklin argued that the rod (which is patently present) does not support the
filter depicted on the photograph. His submission was that the text states that the filter pockets are welded and
the photograph shows the presence of spacers; the patent implies that filter pockets that are welded and have
spacers are selfsupporting; the filter shown with the rod removed would therefore also be selfsupporting; the rod
is simply an additional integer and should be ignored when considering prior description.
The fallacy of the argument was exposed in the context of infringement and inutility where it was pointed out
that it is premised upon an incorrect construction of the patent. To repeat, there is no evidence that a filter with
welds and spacers inevitably has selfsupporting properties. Nothing in "BB" suggests that the filter will not sag or
collapse under its own weight if the rod is removed. This means that "BB" fails to pass muster.
Anticipation prior use or knowledge
An invention was also not "new" under the 1952 Act if the invention was "known or used in the Republic by anyone
other than the applicant or his agent ... (secret knowledge ... being excluded)". (See section 1(ix)(a).) Although the
appellant pleaded the individual uses or knowledge referred to earlier, the
Page 250 of [1998] 1 All SA 239 (A)
evidence should rather be considered as a whole to judge its effect. The major problem confronting the parties was
that the facts to be established or disproved occurred some twenty years ago. Witnesses were bound to rely on
imperfect memories, often prompted by what they had heard from others, or by incomplete documentation. Such
evidence is inherently suspect. Honesty is not the issue, rather the reliability of the evidence. Moldow, for instance,
felt the need to apologise for his failing memory and conceded that he had no independent recollection of the
events which took place during 1975. He did not
View Parallel Citation
know of the patent before the 1980's and he had no reason to remember the sequence of events. Bubenzer was to
recall what had happened at a company he had left in 1979. The company, Brandt, was liquidated during the
intervening years and some of its documents clearly not all were located a few days before the trial by the
appellant. The patentee did not have free access to these documents. The patentee, it was accepted, did not retain
any records relating to the relevant period. In such circumstances the onus is usually decisive and one tends to
seek for corroboration rather than to rely on the ipse dixit of honest witnesses.
The patentee was the manufacturer of a filter material marketed under the trademark "Viledon". Because of
serious competition, it decided to develop a pocket filter using the Viledon material. Development took time. On 18
March 1975 filter design technicians within the VILEDON group held a conference attended by Moldow. Moldow,
then the Danish agent of the patentee, was a member of the development team and visited the patentee regularly
about this over a period of more than two years. At the meeting production samples of "the now completed
COMPACT 'GROB' and 'FEIN' Pocket Filter Elements" were displayed and the meeting was informed that they were to
be called "Viledon Compact Filter Bags". ("Grob" is German for "coarse" and "fein" means "fine"; both terms
describe the nature or grade of the Viledon filter material.) The minutes of the meeting do not give the physical
features of the products in any detail, but state that they are "very compact, internally stable, 'flutterproof' ...
[have] the homogeneous 'filterframe' connection, [and] the functionally reliable spacer element etc ...". Attached to
the minute is a page setting out the technical data of the two filter bags. "Grob" has four pockets and its technical
data are identical to those of the product shown in "BB".
Shortly after the meeting, and at a trade fair in Germany, the patentee exhibited its filters behind closed doors to
a select group of customers. A circular (probably addressed to the patentee's agents) of 7 April 1975 offered the
Viledon compact to the recipients. Two weeks later a short pamphlet (document "B" referred to earlier) was sent to
Moldow and he was asked to state the number of copies he required. Document "B" is fairly indistinct but it does
contain a representation of two "Viledon compact filter bag unit[s]", the one "grob" with four pockets and the other
"fein" with eight. Much more is not visible and although it states that the filters are stable and selfsupporting, it
gives no reason for or explanation of this quality. The technical data does not differ from those given in the
conference minutes, and, for "grob", in "BB".
These products were soon marketed because it is known that by 3 September 1975 they had "found full
acceptance in the marketplace" and "interesting turnovers" had been attained. They reached the South African
market in unknown quantities. That was established at the trial through, at least, Mr Ubsdell who during July 1975