[7]
For some reason, the second respondent in the court a quo, against whom Sunsmart had withdrawn its claims, was cited as the second appellant in this appeal. In fact, there are only four appellants
before us and, as was done in the High Court, it will be convenient to refer to them by name, viz, the first appellant, Vari-Deals 101 (Pty) Ltd, as ‘Vari-Deals’, the third appellant, Zimstone (Pty) Ltd, as ‘Zimstone’,
the fourth appellant, Mr Keith Arnold Munro and the fifth appellant, Mr Uwe Fritz, by their surnames, ‘Munro’ and ‘Fritz’
respectively.
The Effect of the Flag and Flagpole Judgment.
[8]
The appellants' heads of argument were submitted to this court on 5 April 2007, only two days after
the judgment in the Flag and and Flagpole appeal was handed down. The appellants, having based their original argument on the judgments of Southwood J, submitted a set of
supplementary heads in order to deal with the situation which had developed as a result of the reversal by this court of those judgments.
In the introduction to the supplementary heads, the appellants stated:
‘These supplementary heads have been prepared in an attempt to address the judgment of this honourable court in the Flag and Flagpole matter insofar as it relates to both the patent and the design cases. The submission will be, for the reasons which follow, that
this honourable court is not bound to follow its earlier decision, and that this decision notwithstanding, the present appeal should
succeed on both the patent and design cases.’
There followed a number of submissions by counsel for the appellants to the effect that this court erred in coming to its conclusions
in the Flag and Flagpole matter –
(a)
by failing to apply the proper principles of construction of patent claims when considering the
meaning and scope which should be attributed to them;
(b)
by incorrectly rejecting the contention that the invention in the patent was not new, inasmuch as
it had been ‘described’ (within the meaning of that expression in s 25(6) of the Patents Act 57 of 1978) in the
Eastaugh patent;
(c)
by finding that all of the essential integers in claim 1 of the patent are present in the allegedly
infringing flag;
(d)
by finding that the registered design had not been anticipated by one of the drawings in the Rehbein
patent. (Section 35(5), read with s 31(c) and s 14 of the Designs Act 195 of 1993.)
[9]
In view of these submissions, it is perhaps not inapposite to bear in mind (trite though the proposition
may be) that this court is not sitting as some sort of ‘Second Court of Appeal’ in judgment on the Flag and Flagpole case. The judgment in that case, insofar as it concerns the interpretation of the specification and/or claims of SA Patent 97/10535
and insofar as it incorporates findings that the patent and the registered design had not been anticipated by the Eastaugh and Rehbein
patents respectively defines rights of a statutory nature which apply as between Sunsmart and the public at large, and not merely
between the parties to the litigation. Especially in this situation, this court would accordingly only be justified in declining
to follow the interpretations and the rulings on anticipation (or rather the absence thereof) in the Flag and Flagpole judgment in very restricted circumstances. These are concisely stated in Bloemfontein Town Council v Richter 1938 AD 195 at 232 viz :
'The ordinary rule is that this court is bound by its own decisions and unless a decision has been
arrived
at on some manifest oversight or misunderstanding that is there has been something in the nature of a palpable mistake, a subsequently
constituted court has no right to prefer its own
reasoning to that of its predecessor
- such a preference, if allowed, would produce endless uncertainty and confusion. The maxim 'stare decisis' should, therefore, be more rigidly applied in this, the highest court of the land, than in all the others.'
This approach has been regularly applied in our law. Counsel for the appellants, though invited to do so, refrained from contending that the judgment in the Flag and Flagpole case was tainted by the type of oversight or error contemplated in the above passage.
[10]
Counsel did, however, persist in a submission to the effect that the approach of this court in the Flag and Flagpole case had not been consistent with South African law and that, in considering the issue of infringement in this case, we should have
regard to the caution expressed by Plewman JA in Nampak Products Ltd and Another v Man-Dirk (Pty) Ltd 1993 (3) SA 708 (SCA) at 712-714. Counsel's submission, as I understood it, was that the tendency to ‘purposive construction’
of patent specifications and claims in English law
had been affected by the introduction of s 125 of the English Patents Act of 1977 and Article 69 of the European Patent
Convention. These statutory provisions had, and have, no force in this country, with the result that the developments pursuant to
them were not applicable to the interpretation of patents by our courts. The result would be that the ‘time-honoured approach’
to interpretation in our law needed to be, but was not, applied in the Flag and Flagpole case. Without going so far as to ask this court to disapprove of the interpretation given to the claims in the Flag and Flagpole case, counsel suggested that, for the purpose of deciding the infringement issue before us, we should revert to the more ‘literal’
approach and minimize the role which the apparent intention of the patentee might play in deciding what the claims mean and which
particular aspects of them should be regarded as ‘essential elements or integers’.
[11]
There are two crisp answers to this suggestion.
(a)
The primary object of Plewman JA's comments in regard to the changes in approach to interpretation
was to stress that the advent of ‘purposive construction’ should not be treated as giving litigants carte blanche to tender the evidence of expert witnesses as an aid to the construction of claims (p 714B). Nowhere, in the relevant passage, did
the learned Judge disapprove of the Catnic approach – he simply cautioned that it should be applied with care (p 714 D-E).
(b)
In Aktiebolaget Hässle and Another v Triomed (Pty) Ltd 2003 (1) SA 155 (SCA), Nugent JA, after a brief review of the cases, said (at p160 para [9]):
‘While the claim must be construed to ascertain the intention of the inventor as conveyed by the language he has used (Gentiruco AG v Firestone (Pty) Ltd 1972 (1) 589 (A) at 614 B-C) what is sought by a purposive construction is to establish what were intended to be the essential elements,
or the essence, of the invention, which is not to be found by viewing each word in isolation but rather by viewing them in the context
of the invention as a whole. To the extent that it might have been suggested in an obiter dictum in Nampak Products Ltd and Another v Man-Dirk (Pty) Ltd 1999 (3) SA 708 (SCA) at p 714A that it might be called in aid only to construe an ambiguous claim, I do not think that is supported
by the decisions of this court and, in my view, it is not correct.’
That the ‘purposive approach’ has received the authoritative endorsement of the courts in this country was made clear
by Nugent JA in his review of the South African decisions (and and their adoption of the Catnic approach) at pages 159 to 160 of Triomed. It is, of course, true that Catnic did not change the law relating to construction, but it certainly restricted the scope for contesting litigants to indulge in ‘meticulous verbal analysis’ of specifications
and claims - usually to an extent which would have been inconceivable to the ordinary skilled addressee reading the patent to ascertain
the invention and the ambit of protection claimed. It also relieved the courts of the metaphorical ‘straitjacket’ of
having to arrive at any interpretation of claims without having free recourse (subject to the well-established limits) to the specification
in order to decide what the skilled addressee would have understood those claims to mean.
[12]
In reaching his conclusions as to the meaning of the claims in the patent, Streicher JA expressly applied
a purposive interpretation. In doing so he relied upon the Triomed judgment and there is no basis for the criticism leveled at him in this respect by counsel for the appellants.
The Patent-in-Suit.
[13]
The first exercise must be to consider the specification of the patent and to decide on the meaning and
scope of the monopoly defined by the claims.
[14]
Fundamentally, the patentee seeks protection for a new type of flag which will remain extended, whatever
the weather conditions, and which is of particular use as an advertising medium. The specification records that the flags of the
prior art had two specific drawbacks in this context. The first was that they remained limp in windless conditions, making it impossible
to decipher any advertising copy which might be printed on them. The second was that in high wind conditions, or in blustery weather,
the continual flapping of the flag would also result in difficulty in reading the advertiser's message and would also often result
in damage to the flag material. The patentee's claim is to a method (and to its resultant product) of keeping the material of the
flag extended in any type of weather conditions by using a flexible pole to apply tension to the material. The consistory clause
reads as follows:
‘According to the invention, a flag construction comprises a pole which includes, at least at the top end thereof, a flexible section
which is adapted to be bent into a substantially U-shaped section and being adapted to engage at least a portion of the upper periphery
of a piece of material and to maintain it under tension at least in the area defined by the pole, the U-shaped section and a line
between a point towards the tip of the flexible section and a point along the length of the pole.’
The specification then proceeds to describe various preferred embodiments and/or modifications which are all to be discerned in the
claims and it will be convenient to deal with those that are relevant in this case when the meaning and scope of the claims are considered.
[15]
The claims read as follow:
‘1.
A flag construction comprising a pole which includes, at least at the top end thereof, a flexible
section which is adapted to be bent into a substantially U-shaped section and being adapted to engage at least a portion of the periphery
of a piece of material and to maintain it under tension at least in the area defined by the pole, the U-shaped section and a line
between a point towards the tip of the flexible section and a point along the length of the pole.
2.
The flag construction according to claim 1 in which the top end of the pole includes a flexible
section of fibreglass or the like which tapers to a narrow diameter.
3.
A flag construction according to claim 2 in which the tapered section is integral with the
pole.
4.
The flag construction according to claim 3 in which the material includes a seam or sleeve along
one edge, into which the tapered end of the pole is slided (sic).
5.
A flag construction according to any of the above claims including the combination of an inverted
U-shaped section with an inverted teardrop-shaped piece of material.
6.
A flag construction according to any of the above claims in which the pole is adapted to rotate
about its own axis.
7.
A flag construction substantially as described with reference to the accompanying drawing.’
The issues relating to the meaning and scope of the claims in this case are restricted and it is not necessary for the purpose of
this judgment to embark on an exhaustive analysis and interpretation. It will be convenient, instead, to consider the proper interpretation
in relation to each of the issues as they are dealt with.
Alleged Invalidity of the Patent.
[16]
Before us the appellants persisted with the contention that the patent was anticipated by the Eastaugh
patent. Certain submissions were made concerning the analysis of the Eastaugh patent by this court in the Flag and Flagpole case. The submissions fall to be rejected on the simple basis of stare decisis: the interpretation of the Eastaugh patent is a question of law and the appellants have not been able to pass the hurdle set in the
Bloemfontein Town Council judgment.
[17]
I have already indicated that the counterclaim for revocation of the patent was dismissed by Claassen
J. Counsel for the appellants contended that, inasmuch as the revocation proceedings had not reached a stage where they were ripe
for adjudication at the time when Claassen J delivered his judgment, they should not have been dismissed but left in abeyance. As
stated by Claassen J, however, no submissions were made to him in relation to the prayer for revocation and in the circumstances,
given that he was called upon to adjudicate upon the application (including the counterclaim for revocation) it was proper for him
to make the order dismissing the latter. Such an order, of course, does not stand as res judicata on the issue of revocation, but given the findings of the courts in relation to the issue of validity of the patent when raised as
a defence to the claim for infringement, it is highly doubtful whether the revocation application, if proceeded with separately,
would have any prospect of success.
Infringement of the Patent.
[18]
The issue of infringement in this case has been complicated by Sunsmart's contention that the appellants
collaborated and induced others to assist them in producing infringing articles. Obviously, if the articles thus produced do not
infringe the patent, then any question of contributory infringement falls away. In the court a quo the appellants, individually,
denied ‘making, . . . disposing of or offering to dispose of . . . the invention’. Their case was that the final product on which Sunsmart relied for its case on infringement, was a combination of various items independently
supplied by various dealers. What was common cause, however, was that the flag which is depicted in the photograph, Annexure 'A'
to this judgment , and which bears the caption ‘New Heights 1408 CC’ is an example of what can be produced by this combination.
For the purpose of discussing the issue of infringement, I shall refer to this article as ‘the New Heights flag’.
[19]
In the court a quo Claassen J expressly recorded that it was common cause that the integers of claim 1 of the patent were:
(a)
a flag construction comprising
(b)
a pole
(i)
which includes at least at the top end thereof a flexible section;
(ii)
which is adapted to be bent into a substantially U-shaped
section; and
(iii)
being adapted to engage at least a portion of the upper periphery
of a piece of material; and
(iv)
to maintain it (i.e. the material) under tension at
least in the area defined by the pole, the U-shaped section and a line between a point towards the tip of the flexible section and
a point along the length of the pole.
[20]
The debate in the court a quo was confined to the question of whether the New Heights flag incorporated integers (b)(iii) and (b)(iv). On appeal before us, however,
counsel for the appellants submitted that a drastically different approach to the analysis of the integers in claim 1 should be adopted.
His contention was that claim 1 sought protection for a pole with certain characteristics and not for a pole in conjunction with
anything else (to quote counsel's heads of argument) ‘more especially any material’. There is no substance in this contention. The patent has already been considered by seven judges, none of whom were asked to find
that claim 1 related to a pole without the material. Nor, at this late stage of the proceedings, is it necessary for me to say any
more than that the experienced flag maker, reading the specification and claims, could not possibly be under the impression that
the main claim described a pole stripped of the material with which it must be coupled to comprise a ‘flag construction’.
[21]
Counsel for the appellants repeated the contention that integer (b)(iii) was missing in the New Heights
flag. The basis for it was the earlier finding by Southwood J in the Flag and Flagpole case that integer (b)(iii) defined a pole which was adapted (in the sense of ‘being made suitable’ or ‘altered
so as to fit’) to engage (in the sense of ‘to fasten or attach’) the material. He decided that no part of the pole
in the allegedly infringing article had been made suitable for fastening or attaching the material to it. ‘On the contrary,’
he stated, ‘it is the material which has been adapted to engage the pole. The addition of the sleeve makes this possible.’
[22]
Claassen J declined to follow the reasoning of Southwood J in regard to this issue. He took the view
that the word ‘engage’ had been used in the sense of requiring the pole to be able to conform to the shape of the upper
.RTF of original document