Groundprobe (Pty) Ltd v Reutech Mining (Pty) Ltd
| Jurisdiction | South Africa |
| Judge | Neukircher J |
| Judgment Date | 09 August 2019 |
| Docket Number | Patent 2012/08400 |
| Court | Commissioner of Patents |
| Hearing Date | 04 February 2019 |
| Citation | 2020 JDR 0221 (CP) |
Neukircher J:
In this matter an order has already been handed down. What follows are the reasons for that order.
REASONS:
Open-pit or opencast mining is a surface mining technique of extracting rock or minerals [1] from the earth by their removal from an open-pit. Most of the mining is conducted through blasting.
Given this, the world of opencast mining is a particularly hazardous one as the rock slopes in an open-pit will deform over time. The amount of deformation and the rate of deformation are dependent upon the geology, mining method and slope design of the actual pit itself. [2]
For example in the article written by Little she explains that these pits can operate for anything between 17 years and 90 years in dimensions of 2 kilometers long, 600 meters wide and 200 meters deep.
Given the nature of opencast mining, the work can be treacherous because the blasting that occurs causes movement in the slope of the pit walls which can lead to the collapse of that
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wall. As a result, ensuring the safety of the mine equipment and more importantly, the miners themselves, has led to the development of several monitoring systems which are used to monitor the slopes to detect movement in the rock wall and sound an alarm timeously to allow the evacuation of personnel and equipment before a wall collapses.
This matter involves two such systems, both patented by the same author, Dr David Noon, the one conceded to be "prior art" and the other is the subject-matter of the present litigation and under attack by the defendants (collectively called Reutech).
In 2000, [3] Reeves, Noon, Stickley and Longstaff registered what became known as the "Reeves Patent" in Australia and the United States of America. The device patented is described as:
""A slope monitoring system having a radar and video camera recording image frequencies of the slope. A data processing unit performs co-ordinate registration to align the radar images and the video images. Interferometry is used to detect movement in the slope by generating interference maps between the images. These are suitably phase maps showing the phase change between
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a radar image and a reference image. An alarm occurs if a significant movement is detected."
In other words, what this device did was to utilise an interferometric radar module to determine whether the material making up the slope in this opencast mine is likely to collapse, by detecting very small movements in the slope. It does this by directing a wave at the slope and by measuring the wave on its return, determining whether the slope material has moved since the last measurement.
The plaintiffs (Groundprobe) patent (as described supra) was the first commercial interferometric slope stability system in the world. It was commercialised in 2002 and became known as the SSR. [4] It was a trailer-mounted radar system.
It is common cause that shortly after the Groundprobe commercialised the SSR, Reutech developed their own slope stability detection radar system known as the MSR and have since then brought to market several updated versions of that original model.
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The present patent:
The priority date of the patent under scrutiny [5] is 16 August 2010. The field of this invention is described as
"a work area monitor that employs radar to detect movement of a slope and raise an alarm if dangerous movement is detected. The invention is particularly useful for open cut mine sites [6] and civil excavation sites, and potentially useful for underground mines."
What makes this patent allegedly unique and differentiates it from the SSR is the fact that the radar module and processor are mounted on a "motorised automobile vehicle" and that a stabilisation apparatus eliminates disturbances caused by vehicle movement. [7]
Common Cause:
In December 2011, Reutech introduced its own vehicle-mounted slope stability systems, the MSR 060V and the MSR 120V.
Reutech have admitted that:
the MSR 060V and MSR 120V fall within the scope of
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Claims 1 to 4, 10, 12 to 14, 16 to 18, 20, 21, 23 and 26 of the patent; and
the third defendant in operating the MSR 060V and MSR 120V exercised the method that falls within the scope of Claims 27, 28 and 30 of the patent.
The Claim:
Groundprobe seeks an interdict against any further patent infringement, delivery up of any infringement articles and an enquiry into damages.
The Counterclaim:
Reutech allege that the Groundprobes' SA patent is liable to be revoked in terms of section 61(1)(c) of the Patents Act, 57 of 1978 ("the Act") as the invention claimed in Claims 1 to 31 of the patent, was not patentable under section 25 of the Act as:
it was not new (it lacked novelty); and
it did not involve an inventive step (i.e. it was obvious).
Reutech also raised defences based on inutility and a lack of entitlement to apply for the patent, but abandoned those during the trial and no evidence was led on these issues. Thus, nothing
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further will be said regarding these.
Principles of interpretation:
In Gentiruco AG v Firestone SA (Pty) Ltd, [8] Trollip JA stated the following:
"...[T]he rule of interpretation is to ascertain, not what the inventor or patentee may have had in mind, but what the language used in the specification means, i.e., what his intention was as conveyed by the specification, properly construed ... since he is presumed to have intended what his language means. To ascertain that meaning the words used must be read grammatically and in their ordinary sense. ... The specification like any other document must be read as a whole."
However, this does not mean that each word must be read in isolation - they must be viewed in the context of the patent as a whole [9] as in Multotech Manufacturing (Pty) Ltd v Screenex Wire Weaving Manufacturers (Pty) Ltd, [10] the court stated:
"... The court should always guard against too 'textual' an approach in the interpretation of claims in a patent
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specification. It is true that it is in the claim that a patentee stakes out and defines his monopoly; and that the claims must be looked at in order to determine whether an infringement has taken place. But by peering too closely at the language of a claim the Court may overlook an infringement which takes the substance of the invention."
Lastly, "... a patent specification is a statement by the patentee, addressed to those 'skilled in the art', in which he informs them of what he or she claims to be the essential features of the invention for which a monopoly is claimed. Consequently, a patent specification must be construed with reference to the state of knowledge of those skilled in the art at the time of the priority date of the patent in issue. Accordingly, in order to enable the court to construe the specification properly, it must be instructed by the expert witnesses as to the state of the art in the field of the invention in order to place the court as near as may be possible to the position of those skilled members of the public to whom it is addressed, as at the relevant date ..." [11]
This being said however, an expert witness cannot guide a court or testify on the issue of whether a patent is novel or not - that is
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for the court to decide:
"Again it is emphasised: the opinions of the expert witnesses that a document does nor does not anticipate a claim if the patent in suit, must be disregarded, for that is for the court to decide." [12]
It is against this background that the Groundprobes' patent must be assessed. Given the admissions made by Reutech, they assumed the duty to begin and because a patent is prima facie valid, [13] Reutech also bore the onus in respect of their counterclaims.
Thus the question facing this court is whether the patent was novel and inventive enough to have been registered.
Reutechs evidence:
Reutech called the following witnesses:
Anthony Simon Green - an employee of the third defendant. [14] He is responsible for strategic projects which is part business development and part technical. Mr Green was not called as an expert witness but rather
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to inform the court about two radar systems that were developed and sold by Reutech between 1999 and 2010. The one was known as "The Kameelperd" and the other "The Spider";
Cornelius Jakobus Adriaan Nel is Reutechs expert witness. His primary qualification is that of a Mechanical Engineer and he was employed by Reutech in 2008 as an Assistant Engineer;
Professor van der Walt;
Jan Frederick De Beer who is at present Executive Manager in charge of Reutech's mining division.
Reutech then closed their case.
Two witnesses then testified for Groundprobe:
Dr Noon who is one of the founders of Groundprobe and inventors of both the Reeves Patent and the present patent under attack. Dr Noon was not qualified as an expert and was called to give factual evidence;
Dr Declan Richard Vogt. His is presently a lecturer at Camborne University in the United Kingdom in mining
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automation and robotics.
Groundprobes' case:
The entire purpose of this 8-day trial was to demonstrate that for Groundprobe to mount its interferometric radar on the back of a motorised vehicle and stabilise it was not an innovative step. It was Reutechs argument that to move the radar from a trailer-mounted base to the back of a vehicle was, instead, a rather obvious step.
According to Reutech the Reeves patent...
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