Schlumberger Logelco Inc v Coflexip SA

• Jurisdiction: South Africa
• Citation: 2003 (1) SA 16 (SCA)

Schlumberger Logelco Inc v Coflexip SA
2003 (1) SA 16 (SCA)

2003 (1) SA p16

Citation	2003 (1) SA 16 (SCA)
Case No	256/2001
Court	Supreme Court of Appeal
Judge	Harms JA, Scott JA, Streicher JA, Nugent JA and Jones AJA
Heard	August 22, 2002
Judgment	September 6, 2002
Counsel	J W Louw SC (with him C J van der Westhuizen) for the appellant.; L Bowman SC (with him B du Plessis) for the respondent.

Flynote : Sleutelwoorde E

Patent — Validity of — Obviousness — Technical evidence of witnesses to be considered without any reference to their F opinions as to whether invention obvious — May sometimes be difficult to avoid expert witnesses expressing conclusion that step is obvious or not, but this doing no harm as long as it borne in mind that such conclusion immaterial.

Headnote : Kopnota

The three grounds of attack on the validity of a patent are lack of novelty, obviousness and lack of clarity. The technical evidence by G expert witnesses in respect of the nature of the step claimed to have been inventive, the state of the art as at the priority date relevant to that step and the respect or respects in which the step goes beyond or differs from the state of art constitutes the primary evidence. The technical evidence of the witnesses has to be considered without any H reference to their opinions as to whether the invention was obvious. It may sometimes be difficult to avoid the expert witnesses expressing a conclusion that a step is either obvious or not, but this would do no harm as long as it is borne in mind that such conclusion is immaterial. (Paragraph [19] at 22I/J and para [34] at 27F/G - I/J.)

Cases Considered

Annotations

Reported cases I

C van der Lely NV v Bamfords Ltd [1963] RPC 61 (HL): dictum at 71 applied and qualified

Ensign-Bickford (South Africa) (Pty) Ltd and Others v AECI Explosives and Chemicals Ltd 1999 (1) SA 70 (SCA): explained

Filta-Matix (Pty) Ltd v Freudenberg and Others 1998 (1) SA 606 (SCA): referred to J

2003 (1) SA p17

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

Letraset Ltd v Helios Ltd 1972 (3) SA 245 (A): considered

Mölnlycke AB and Another v Procter & Gamble Ltd and Others (No 5) [1994] RPC 49 (CA): dictum at 113 applied

Netlon Ltd and Another v Pacnet (Pty) Ltd 1977 (3) SA 840 (A): dictum at 861H - 862B applied

Veasey v Denver Rock Drill and Machinery Co Ltd 1930 AD 243: B referred to.

Case Information

Appeal from a decision in the Court of the Commissioner of Patents (Southwood J). The facts appear from the judgment of Streicher JA.

J W Louw SC (with him C J van der Westhuizen) for the appellant.

L Bowman SC (with him B du Plessis) for the respondent. C

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

Beecham Group Ltd v The BM Group (Pty) Ltd 1977 BP 14 (CP) at 30E D

BM Group (Pty) Ltd v Beecham Group Ltd 1980 (4) SA 536 (A) at 553E - F

Colgate-Palmolive Co v Unilever Ltd 1981 BP 14 at 124F - 125F

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

De Beers Industrial Diamond Division (Pty) Ltd v General Electric Co 1988 (4) SA 886 (A) at 897H - 898C E

Deton Engineering (Pty) Ltd and Another v John Paul McKelvey and Others 1995 BP 228 at 236E - 238F

Electrical and Musical Industries v Lissen [1939] 56 RPC 23 at 39

Firestone (South Africa) (Pty) Ltd v Gentiruco AG 1970 BP 302 (T) at 403C - E F

Johnson & Johnson (Pty) Ltd v Kimberley-Clark Corporation and Kimberley-Clark of South Africa (Pty) Ltd 1985 BP 126 at 130G - 131B, 135C - 136A

J P Mc Kelvey and Others v Deton Engineering (Pty) Ltd and Another 1997 BP 104 at 111G - 112A G

Monsanto Co v MDB Animal Health (Pty) Ltd (formerly MD Biologics CC) 2001 (2) SA 887 (SCA) at 889H - J, 891J - J

Power Steel Construction Co (Pty) Ltd v African Batignolles Construction (Pty) Ltd 1955 BP 155 at 162A - B, 162D - E

Roman Roller CC and Another v Speedmark Holdings (Pty) Ltd 1996 (1) SA 405 (A) at 419B - 420B H

Transvaal and OFS Chamber of Mines v General Electric Co 1966 BP 281 at 290D.

Cur adv vult.

Postea (September 6). I

Judgment

Streicher JA:

[1] The appellant installed apparatus for the purpose of transferring oil produced by a sub-sea deposit, from the seabed to the sea surface at a J

2003 (1) SA p18

Streicher JA

Soekor Field Development Project near Mossel Bay. The Commissioner of Patents (Southwood J) found that by doing so the A appellant infringed patent 89/1418 (the patent), granted an order interdicting the appellant from infringing claims 1, 8 and 9 of the patent and dismissed a counterclaim for the revocation of the patent. With the necessary leave the appellant now appeals against the findings of the Court a quo. B

[2] The patent relates to an apparatus using at least one hose for the transfer of fluid, particularly oil, between the seabed and the sea surface. The hoses so used are also referred to as flexible-pipe risers or simply flexible risers. The flexible pipe is characterised by a composite construction with layers of different materials, which allow C large amplitude deflections without adverse effects on the pipe. Flexible risers accommodate differential motion by an added length of pipe between the two points to be linked. The added length can be utilised in different patterns according to the environmental conditions, the loads to which it is subjected and its relative motion and position in relation to the seabed connection point. As at the D priority date of the invention, namely 24 February 1988, various configurations of flexible risers were known and utilised. Those that are relevant for present purposes and were considered to be the major flexible riser configurations at the time are known as the Free Hanging, Lazy S, Steep S, Lazy Wave and Steep Wave configurations which are illustrated in the figures below. E

[3] In the case of the Lazy S, Steep S, Lazy Wave and I Steep Wave configurations the hoses extend in a catenary between the surface support and an intermediate positive buoyancy element imparting to the hose, over a portion of its length, a curved configuration of concavity turned toward the seabed. The intermediate element might be an arch of concavity turned toward the seabed, if necessary connected to the seabed J

2003 (1) SA p19

Streicher JA

by tie rods, a plurality of buoys placed in succession and fastened to the hose, or a buoyancy chamber connected by tie rods A to the seabed. In the Lazy S and Lazy Wave configurations the portion of the hose below the intermediate element exhibits a catenary-shaped configuration to the level of the seabed, the hose then extending on the seabed to a wellhead or to a connecting element located on the bed. In the Steep S and Steep Wave configurations the B portion of the hose between the intermediate element and the seabed is taut, the lower end of the hose being fastened to a base resting on the seabed. In this type of configuration it is necessary to connect the lifting hoses to the previously installed base and to connect the hose or hoses coming from the wellhead to this base.

[4] In the specification of the patent it is stated: C

'The apparatus according to the invention is close to the ''Steep S'' or ''Steep Wave'' type in the sense that a part of the hose below the intermediate element is held taut by being connected to a stationary point on the sea bed and is characterised essentially by the fact that it comprises holding means for at least one zone of said lower part of the hose, connected to said stationary point and made to D hold taut the part of the hose located between the intermediate element and the holding means and to impart to the hose in a vertical plane, a predetermined necessary curvature whose concavity is directed in the direction of the wellhead or the structure located on the bed and from which the oil must be lifted.

In a preferred embodiment, said holding means comprise at least one E collar placed around the hose, between the intermediate element and the bed, said collar - intended to take up the pull of the hose - being connected by at least one anchoring tie rod to the stationary point, made preferably in the form of a deadman placed on the sea bed. . . .

. . . F

In this embodiment, it is advantageous also to position on the hose, in its horizontal part, at the level of the sea bed, at least a second collar connected also by one or more tie rods to the deadman.

. . .

Other holding means can be provided according to the invention, such as for example articulated vertebrae extending from the deadman over a G part of the length of the lower part of the hose, the hose then being fastened to the deadman. In another embodiment, these holding means can consist of a neck solid with the deadman performing a holding and a guiding, in a vertical plane, of the corresponding part of the hose.'

[5] Claim 1 reads as follows: H

'1. Apparatus for transfer of fluid between the sea bed and the sea surface particularly for the gathering and lifting of oil produced by a subsea deposit comprising at least one hose extending in a catenary between the surface support and an intermediate element imparting to the hose, over a portion of its length, a curved configuration of concavity turned toward the bed, a part of the hose between said I intermediate element and the sea bed being made taut by being fastened to a stationary point on the bed, characterised by the fact that it comprises holding means for at least one zone of said lower part of the hose, connected to the stationary point, consisting of a deadman and made to hold taut part of the hose located between the intermediate element and the holding means, and to impart to the hose in a vertical plane,...