Resca v Pasadena Leather Products CC
| Jurisdiction | South Africa |
| Judge | JW Louw J |
| Judgment Date | 01 April 2015 |
| Docket Number | P98/6778 |
| Hearing Date | 01 March 2015 |
| Court | Commissioner of Patents |
JW Louw, J
The plaintiffs are the co-inventors and patentees of South African Patent No. 98/6778 for an invention entitled "a lockable holster". They allege in their particulars of claim that the defendants have infringed claims 1 and 7 of the patent by making and/or using and/or disposing of and/or offering to dispose of a holster for a weapon called a "Swivel Holster'' in South Africa, and that they continue to do so. The plaintiffs claim an interdict and ancillary relief against the defendants. The defendants deny infringement and have filed a counter claim for the revocation of the patent on the grounds of lack of novelty and lack of inventive step. They did not persist with their counter claim based on lack of novelty. Their evidence in support of the counter claim based on obviousness was limited to claims 1 and 7.
The invention relates to a lockable holster for a firearm. The parties agreed that claims 1 and 7 have the following integers:
Claim 1
A lockable holster which includes
a moulded holster body within which part of a fire-arm having a trigger guard is receivable,
the holster body having walls defining a cavity for receiving at least part of the fire-arm including at least a portion of the trigger guard and
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an aperture in a wall of the holster body at a location corresponding to a trigger guard retaining region of the holster body,
first locking means on the holster body,
which has a releasable biased locking member which is displaceable between a locked position towards which it is biased and a released position, whereby the fire-arm is releasably locked in position in the holster body,
in which the locking member is in the form of a first order lever which is pivotally mounted on an outer surface of the holster body
with a finger engaging effort arm and a working arm which protrudes through the aperture and into the cavity when the locking member is in its locked position
and whereon angularly spaced apart first and second camming surfaces are provided,
wherein when the locking member is in its locked position the first camming surface is engageable, cam-follower fashion, by the trigger guard of the fire-arm upon insertion of the fire-arm into the holster
to displace the locking member away from its locked position to permit the trigger guard to pass the locking member and to permit the locking member to return to its locked position once the trigger guard has passed and
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the second camming surface is engageable by the trigger guard to inhibit unauthorised withdrawal of the fire-arm from the holster, and
the holster body being configured such that when the fire-arm is locked in position in the holster body a slide of the fire-arm is accessible and displaceable to permit a round of ammunition to be chambered.
Claim 7
A holster as claimed in any one of the preceding claims,
which includes attachment means for attaching to a belt hanger system
to permit hanging of the holster from a belt of a wearer.
It was common cause between the parties that if claim 1 was found to be infringed, so too was claim 7 and that if claim 1 was found to be invalid for obviousness, so too would claim 7.
Validity of the patent
The defendants originally pleaded that the invention was obvious to a person skilled in the art having regard to 15 prior art US patents. Ultimately, the defendants relied on only two US patents, being US 3,910,469 (the 1975 patent) and US 5,395,021 (the 1995 patent). The
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1995 patent was introduced by way of an amendment effected shortly before the commencement of the trial. It is common cause that both these patents formed part of the state of the art immediately before the priority date of the patent in suit.
The defendants' case in regard to obviousness was that the invention claimed in the patent in suit was a mere combination of the art disclosed in the 1975 and 1995 US patents and that such combination would have been obvious to the person skilled in the art of the invention. To facilitate understanding of the arguments in this regard, figure 8 of the 1975 patent, figures 1, 2, 3 and 4 of the 1995 patent and figures 1and 2 of the patent in suit are reproduced below.
1975 patent
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1995 patent
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Patent in suit
FIG 1
FIG 2
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The abstract of the 1975 patent reads as follows:
"The holster herein is formed of a channel member shaped to conform to the portion of the body of a hand gun adjacent the trigger guard so that the trigger guard and a portion of the body and of the barrel are nested in the holster. A latch is provided on one side of the holster which projects through an opening into the holster body and into the trigger guard to hold the hand gun in nested position. A safety is provided to hold this latch in latching position. The safety is in convenient location to be tripped simultaneously with the gripping of the hand gun."
The abstract of the 1995 patent reads as follows:
"A handgun holster and retention block assembly that holds the handgun in a retained position by a spring biased trigger guard latch that is located under the sheath material of the holster to conceal it from view and reduce the possibility of unauthorized release."
The evidence of the defendants' expert witness, Mr. George Ignatius Kiesling, was that a person skilled in the art would, having regard to the teaching of the 1975 patent, be aware of a holster with a manual locking means, that the holster would allow for the chambering of a round of
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ammunition whilst the firearm was in a locked position in the holster and that it provided for a belt hanger means. His evidence was further that if such a person was provided with the teaching of the 1995 patent, in particular the locking means thereof, it would have been obvious to the skilled person to combine the locking member of the 1995 patent with the lockable holster of the 1975 patent.
The 1975 patent describes a holster body which is U-shaped to permit the drawing of the firearm with a forward rotating motion instead of drawing it up vertically. The preferred form of the U-shape of the holster body is described in the specification as having a shorter leg 2 and a longer leg 3 connected by a curved portion 4. The first plaintiff, who testified as the plaintiffs' expert witness, and Mr. Kiesling agreed that the holster could not function as a forward-drawing holster if the holster body was not U-shaped. The holster body of the patent in suit is not U-shaped. Integer [c] of claim 1 requires the holster body to define a cavity for receiving at least a part of the fire-arm. The word "cavity" is defined in the SOD as "a hollow place; a hollow; an empty space in a solid body".
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