Nampak Products Ltd and Another v Man-Dirk (Pty) Ltd

• Jurisdiction: South Africa
• Citation: 1999 (3) SA 708 (SCA)

Nampak Products Ltd and Another v Man-Dirk (Pty) Ltd
1999 (3) SA 708 (SCA)

1999 (3) SA p708

Citation	1999 (3) SA 708 (SCA)
Case No	162/97
Court	Supreme Court of Appeal
Judge	Vivier JA, Howie JA, Schutz JA, Plewman JA, Melunsky AJA
Heard	March 5, 1999
Judgment	March 26, 1999
Counsel	C Puckrin (with him M Jansen) for the appellants; L Bowman (with him Brahm Du Plessis) for the respondent

Flynote : Sleutelwoorde F

Patent — The specification — Construction of — Concept of purposive construction to be invoked in context where it will not detract from firmly established principles of construction — Where patent involves no technical complexities, uses no esoteric phraseology, words of claim G are ordinary English words clearly used in ordinary connotation, claim is unambiguous and nothing justifying reference either to phraseology in body of the specification or to extrinsic evidence relating to art, claim in issue must be read in its own terms.

Headnote : Kopnota

In interpreting a patent the South African Courts have always H invoked the concept of purposive construction, as derived from the English case of Catnic Components Ltd and Another v Hill and Smith Ltd [1982] RPC 193 (HL) ([1981] FSR 60), in a context which in no way detracted from the firmly established principles of construction. Generally, evidence on record for other reasons, such as I to explain the art and science in question to enable the Court to view the patent in the eyes of the addressee, has allowed the Court to adopt a purposive approach. It is not always open to a Court to resort to evidence as an aid to construction. In patent cases the need for a practical construction is obviously desirable, but care is called for in the manner in which recourse may be had to the test set out in Catnic's case. Where the patent involves no technical complexities, uses no esoteric phraseology, the words of the claim are ordinary English words clearly used J

1999 (3) SA p709

in their ordinary connotation, the A claim is unambiguous and there is nothing which would justify a reference either to phraseology in the body of the specification or to extrinsic evidence relating to the art, the claim in issue must be read in its own terms. (At 713I - 714A, 714A/B - B, 714D/E and 714F - G/H.)

Cases Considered

Annotations

Reported cases

Catnic Components Limited and Another v Hill and Smith Limited [1982] RPC 183 (HL) ([1981] FSR 60): discussed & qualified

Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA 589 (A): applied

Improver Corporation and Others v Remington Consumer Products C Ltd and Others [1990] FSR 181: considered

Multotec Manufacturing (Pty) Ltd v Screenex Wire Weaving Manufacturers (Pty) Ltd 1983 (1) SA 709 (A) (1982 BP 421): referred to

Public Carriers Association and Others v Toll Road Concessionaries (Pty) Ltd and Others 1990 (1) SA 925 (A): referred to

Sappi Fine Papers (Pty) Ltd v ICI Canada Inc (formerly CIL Inc) 1992 (3) SA 306 (A): referred to D

Selas Corporation of America v Electric Furnace Co 1983 (1) SA 1043 (A): referred to

Southco Inc and Another v Dzus Fastener Europe Ltd [1990] RPC 587: referred to

Stauffer Chemical Co and Another v Safsan Marketing and Distribution Co (Pty) Ltd and Others 1987 (2) SA 331 (A): referred to. E

Case Information

Appeal from a decision of a Commissioner of Patents (Roux J). The facts appear from the judgment of Plewman JA.

C Puckrin SC (with him M Jansen SC) for the appellants.

L Bowman SC (with him Brahm Du Plessis) for the respondent. F

In addition to the authorities cited in the judgments of the Court, counsel for the parties referred to the following authorities:

AC Edwards v Acme [1990] RPC 621

AC Edwards v Acme [1992] RPC 131 (CA)

Codex Corporation v Racal-Milgo [1983] RPC 369 G

Coopers (SA) (Pty) Ltd v Deutsche Gesellschaft F\)r Scadlings-bekampfung Mbn 1976 BP 533 (A)

De Beers Industrial Diamond Division v General Electric Co 1977 (3) SA 30 (T) at 32G - H

Dresser Industries Inc v James J Robbins & Associates H Inc 1974 BP 135 (CP) at 177D - G

Firestone (SA) (Pty) Ltd v Gentiruco AG 1970 BP 302 (T) at 323A - C

Johnson & Johnson (Pty) Ltd v Kimberly-Clark Corporation and Kimberly-Clark South Africa (Pty) Ltd 1985 BP 126 (A) at 130G - 131B, 132E - 136A

Letraset v Helios 1972 BP 243 (A) at 247C - D, I 247G - 248C

Plascon Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634

Selero (Pty) Ltd and Another v Chauvier and Another 1983 BP 175 (A) at 198F - G

Siezputowski v Anglo American Corporation of South Africa Ltd 1972 BP 374 (CP) at 363A - B J

1999 (3) SA p710

Southco v Dzus [1992] RPC 299 (CA) A

Stellenbsoch Farmers' Winery Ltd v Stellenvale Winery Ltd 1957 (4) SA 234 (C)

Vax v Hoover [1991] FSR 307

Cur adv vult. B

Postea (March 26).

Judgment

Plewman JA:

This is an appeal against an order by Roux J, sitting as Commissioner of Patents, in a matter concerning an alleged infringement of a patent. The appellants are the C registered joint proprietors of South African Letters Patent No 90/2427 in respect of an invention entitled 'Pressure Resistant Bag'. They acquired this by an assignment from the original patentees. The respondent manufactures and sells a competing product. Appellants applied in the Court a quo on notice of motion for a permanent interdict restraining the respondent from selling or offering its product for sale and for an order for the delivery up of D any infringing bags. The Commissioner dismissed the application with costs but granted leave to appeal to this Court.

The patent was granted with effect from 27 February 1991. It was applied for by appellants' predecessors in title in March 1990, claiming priority from three prior patent applications. It seems, E however, that the respondent, too, had been active in the field for some years. The affidavits filed in support of the notice of motion are of a somewhat perfunctory nature. This may have had an influence on the response thereto by the respondent. There was (unusually for patent litigation) no challenge to the validity of the patent. In the result there is on the record no evidence in which the prior art is discussed F in any depth. Perhaps more importantly, there is not any evidence to show that the patent, when viewed through the eyes of the skilled addressee, should be read in any manner which would give the words of the claims a meaning other than their primary meaning. This is an aspect to which I shall return.

In its commercial embodiment the patent...