Netlon Ltd and Another v Pacnet (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Trollip JA, Corbett JA, De Villiers JA, Miller JA and Galgut AJA
• Judgment Date: 27 May 1977
• Court: Appellate Division

Trollip, J.A.:

This appeal concerns a South African patent for "improvements relating to the production of fabrics" granted under the Patents Act, 37 of 1952 ("the Act"). The patent's H effective date is 9 November 1955. On its expiry on 8 November 1972 the Commissioner of Patents extended it for eight years. Its proprietor is Netlon Ltd. ("Netlon"), a British company, who is first appellant. The second appellant is Van Leer South Africa (Pty.) Ltd. ("Van Leer"). It is the exclusive licensee of the patent under a licence agreement dated 1 September 1964. When the litigation started it intervened as a co-plaintiff under sec. 54 (3) of the Act. I shall refer to these two companies collectively as "the plaintiffs". They sued the respondent, Pacnet (Pty.) Ltd. ("the defendant"), a South African

Trollip JA

company carrying on business as manufacturers and sellers of plastic products, in the Court of the Commissioner for infringement of the patent. The defendant resisted the action on various grounds and also counterclaimed for the revocation A of the patent for alleged invalidity. The Commissioner, FRANKLIN, J., dismissed the counterclaim and granted judgment for the plaintiffs for an interdict, delivery-up of all infringing products, an inquiry into the damages suffered by the plaintiffs through the infringement, and costs. Defendant's appeal to the Transvaal Provincial Division (CILLIÉ, J.P., MARGO and MELAMET, JJ.) substantially succeeded: (a) the dismissal of defendant's counterclaim was upheld, but (b) the B other orders of the Commissioner were set aside, a decree of absolution from the instance with costs on the infringement action was substituted, and the plaintiffs were ordered to pay the costs of the appeal. With the necessary leave the plaintiffs have appealed to this Court against (b), and defendant has cross-appealed against (a). The costs of the applications to the Court a quo for leave to appeal and C cross-appeal were ordered to be costs in the present appeals to this Court.

Defendant admittedly manufactures and sells in South Africa plastic netlike materials under a trade name, formerly "Poly-Net", but now "Pacnet". The plaintiffs alleged that defendant's production and sale of that product, and the D process and apparatus used to produce it, infringed certain claims of the patent. Defendant denied the allegations of infringement. It also averred that the patent was invalid on certain grounds set out in the Act and counterclaimed for its revocation. Certain of those grounds were not persisted in. Those still relied on in this appeal were:

(a)

the invention was not new at the effective date having E been anticipated by certain prior Japanese and French patents;

(b)

the specification of the patent does not fully describe and ascertain the invention and the manner in which it is to be performed;

(c)

the claims of the specification do not sufficiently and clearly define the subject-matter for which protection is claimed.

(See secs. 23 (1) (f), (g), and (l) read with secs. 43 (1) and F 53 (a) and (b) of the Act.) It was not contended that the invention lacked inventiveness or was not useful (see sec. 23 (1) (d) and (e)).

The Invention

I shall number the paragraphs below to facilitate subsequent G reference to them.

1.

Our first task is to ascertain the nature of the invention as claimed and its precise scope in so far as it is relevant to the present litigation. Consequently, the specification, and especially the relevant claims, have to be construed in the ordinary way. Several of the rules of construction are set out in Gentiruco A.G. v Firestone SA (Pty.) Ltd., 1972 (1) SA 589 (AD) at pp. 613D - 616D. They need not be repeated here, H save to emphasize that the specification, including the drawings (see sec. 10 (5) of the Act which deems them to be part of the specification) and the claims, must be read as a whole (p. 614 in fin.). Where they are relevant, the particular rules mentioned in the Gentiruco case will be mentioned in due course, and applied. I start with the body of the specification, since that describes the invention and explains how it is to be performed, and it enables one to understand the claims.

Trollip JA

2.

The invention is stated to relate to the production of fabrics. As at the effective date (9 November 1955) fabrics were produced by the normal operations of thread, filament, or A yarn spinning and then of weaving, knitting, twisting, or using the usual other ways of turning them into cloth or fabric. The object of the present invention is the production of a new netlike fabric made of plastic (as defined in the specification) in which the above-mentioned operations are eliminated. It provides for new methods and apparatus for such production in which plastic linear elements are continuously extruded in such a way that they form mesh intersections with one another thereby producing, a plastic netlike fabric. That B is the essence of the invention for it is repeatedly said in the body of the specification that in effect the new fabric is constituted as

"an integral whole, that is to say, in which the mesh strands are in one with the mesh intersection in contradistinction to a fabric in which performed filaments or strands are connected together at intersections by welding or cementing."

3.

C The words "welding" and "cementing" are not used in any technical sense or with any special connotation; hence their ordinary meanings should apply (see the Gentiruco case, supra at pp. 614C - D, 615A - B). According to the Oxford English Dictionary "cement" as a verb means to unite (solid bodies) with "cement", i.e., some substance to make them cohere firmly, D and "weld", to soften by heat and join together in a solid mass by hammering or by pressure. The definition of "weld" relied on by defendant's counsel is taken from Webster, Third New International Dictionary. It is in much wider terms, reading:

"(a)

To unite or consolidate (as metallic parts) by heating to a plastic or fluid state the surfaces of the parts to be joined E and then allowing the metals to flow together with or without the addition of other molten metal or by hammering or compressing with or without previous softening by heat - compare gas welding. (b) To unite (plastics) in a similar manner by heating".

(My italics.) As "welding" is used in the extract from the specification quoted above, first, in contradistinction to "cementing" (i.e., adding an adhesive), and, secondly, in respect of connecting together "preformed filaments or F strands", it is hardly likely that it was intended to bear the wide connotation assigned to it by Webster, especially the italicised parts of his definition. In its above context the more likely connotation of "welding" is connecting together the preformed filaments or strands, without using any cement or adhesive, but by applying heat and pressure or force in some G way.

4.

It was common cause that in the relevant art or science a plastic linear element ordinarily becomes a "filament" or "strand" when its length is substantially greater than its diameter or thickness; moreover it is ordinarily solid or semi-solid and not liquid. I shall refer to the pre-filament streams as linear elements, that being the expression used in H the body of the specification.

5.

According to the specification, therefore, the new fabric of the invention is distinguished from other fabrics in that the intersections of the latter are formed by welding or cementing together the plastic linear elements after they become filaments or strands (giving the words "preformed", "filament", and "strand" their full force and effect), in contrast to the intersections of the former (the invented) fabrics which are formed by integrating the linear elements where they intersect one another before

Trollip JA

they are formed into or become filaments or strands. That distinction is of paramount importance in this litigation.

6.

The advantage of the invention, so it is averred, is that manufacturing costs are low since the fabric is produced as an integral whole in substantially a single, continuous process, A the cost of the normal operations of first spinning the yarns or filaments and then weaving them into the fabric being eliminated. Another averred advantage is that the extruded size of area of the meshes may be increased by tensioning the fabric in various directions thereby elongating the mesh strands B without adversely affecting the intersections.

7.

The products which, according to the invention, can be produced include fabrics of various patterns, braids, ribbonlike material, stockinettes, netting for insect protection, fishing, etc., reinforcing other fabrics and rubber tyres, furnishing fabrics such as curtains, tablecloths, etc., garments, millinery, and so on. According to the evidence a C world-wide industry in these products has developed out of this invention.

8.

In so far as it is relevant to the present inquiry the process and apparatus for producing the invented fabric, as described in the specification and attached drawings, can be briefly summarized as follows. The molten plastic is forced-fed D into chambers suitably heated in order to maintain the plastic material in an appropriate molten state. From there the molten plastic is forced through and extruded from ducts called dies. These are spaced in a set which is located in a "member", i.e., a part of the apparatus. An apparatus contains two member's each with a set of dies. The members are so positioned that the sets are paired to operate on a slideway. During operation, E while the plastic linear elements are being extruded, the members (for example) rotate angularly and co-axially or reciprocate rectilinearly in opposite...