Sasol Dyno Nobel (Proprietary) Limited v Master Blaster (Proprietary) Limited

• Jurisdiction: South Africa
• Judge: NP Mngqibisa-Thusi J
• Judgment Date: 01 April 2015
• Docket Number: 2004/8313
• Court: Commissioner of Patents
• Hearing Date: 01 March 2015
• Citation: 2015 JDR 0201 (CP)

Mngqibisa-Thusi, J

[1]

The applicant is seeking the following relief:

1.1

the amendment of complete patent specification and the claims of South African Patent number 2004/8313 ("the patent") as set out in annexure "RVD3" of the

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supporting affidavit of Ronald Marinus Johannes van Dijke ("Van Dijke");

1.2

that the "Notice of Advertisement for an Application for Amendment during Pending Court Proceedings" to be published in the patent journal during or about June 2012, will, as published, be accepted as an advertisement in terms of section 51 of the Patents Act 57 1978 ("the Act");

1.3

that the proceedings in the application for the revocation of the patent dated 30 September 2011 brought by the first respondent be stayed pending the final determination of the present application;

1.4

Costs if the matter is opposed.

[2]

The applicant does not seek any relief against the second respondent. Hereinafter the first respondent will be referred to as 'the respondent'.

[3]

The applicant is the inventor of a "Dual Detonator Assembly" ("the patent") which invention was patented under patent number 2004/8313. The patent contains 16 claims, three (claims 1, 12 and 13) are independent claims, 14, 15 and 16 are omnibus claims and claims 2-11 are dependent (directly or indirectly on claim 1. As described by the deponent to the affidavit in support of this

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application, the patent relates to a detonator assembly, which comprises of "an elongate detonation transfer mechanism, a first in-hole detonator connected towards a first end of the mechanism and a second in-hole detonator connected towards a second end of the mechanism. The invention also relates to a detonator system and a method of priming a plurality of blast holes at blast site." The patent has a priority date of 16 October 2003. The proposed amendment was published in the Patent Journal on 27 June 2012 and it is common cause that no objections to the proposed amendment were received from the public.

[4]

There is a pending application for the revocation of the patent instituted by the first respondent.

[5]

The grounds on which the respondent seeks the revocation of the patent are that the patent:

5.1

lacks novelty;

5.2

lacks inventive step; and

5.3

lacks clarity, specifically claim 13.

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Mngqibisa-Thusi, J

[6]

Instead of filing its answering evidence to the revocation application, the applicant launched this application for the amendment of the patent in terms of section 51(9) of the Act.

[7]

Section 51 (9) of the Act provides that:

"(9)

Where any proceedings relating to an application for a patent or a patent are pending in any court, an application for the amendment of the relevant specification shall be made to that court, which may deal with any such application for amendment as it thinks fit but subject to the provisions of subsections (5), (6), and (7), or may stay such pending proceedings and remit such application for amendment to the registrar to be dealt with in accordance with subsections (2), (3) and (4)."

[8]

In its founding affidavit the applicant avers that after the respondent launched its application for the revocation of the patent, it (the applicant) reviewed the specification and came to the view that it should seek an amendment of the patent to bring clarity to the patent specification.

[9]

According to Van Dijke, the deponent to the applicant's founding affidavit, the purpose of the proposed amendment is to:

9.1

insert words and phrases into the body of the specification and into claims 12 and 13; 7.2 to introduce and delete numerals on the drawings attached to the specification; and

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Mngqibisa-Thusi, J

9.2

to correct the diagrams of errors and omissions made.

[10]

Further, applicant contends that the proposed amendment to claims 12 and 13 will be achieved by (i) adding the word 'detonator' before the word 'assembly' and (ii) adding the words 'elongate detonation transfer' before the word 'mechanism; and 'elongate detonation' before the word 'transfer'. Furthermore, with regard to claim 13, it is proposed to amend the claim by (i) adding the word 'detonator' before the word 'assembly'; (ii) adding the words 'detonator assembly' after the words 'first kind'; (iii) adding the word 'first' before the word 'detonator'; and (iv) adding at the end of the claim 'and connecting the attachment means of the second assembly of the second kind of detonator assembly to the elongate detonation transfer mechanism of...