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[2016] ZASCA 204
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Pasadena Leather Products CC t/a Pasadena Products and Another v Resca and Another (137/2016) [2016] ZASCA 204; 2016 BIP 63 (SCA) (15 December 2016)
THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
JUDGMENT
Reportable
Case
No:
137/2016
In
the matter between:
PASADENA
LEATHER PRODUCTS CC
T/A
PASADENA
PRODUCTS
FIRST
APPELLANT
TRIFECTA
TRADING 83 (PTY) LTD
T/A
DOS
GROUP
SECOND APPELLANT
and
FRANCO
RESCA
FIRST
RESPONDENT
ENRICO
CUPIDO SECOND
RESPONDENT
Neutral
citation:
Pasadena
v Resca
(137/2016)
[2016] ZASCA 204
(15 December 2016)
Coram:
Leach,
Swain, Dambuza and Mathopo JJA and Makgoka AJA
Heard:
23
November 2016
Delivered:
15
December 2016
Summary:
Patent
relating to a lockable holster : purposive interpretation : not all
integers of respondents’ patent having been used
by the
appellants in the design of their holster: patent not infringed.
ORDER
On
appeal from:
The
Court of the Commissioner of Patents for the Republic of South Africa
(Louw J sitting as court of first instance):
1 The appeal succeeds, with
costs.
2 Para (c) of the order of
the court a quo is set aside and is substituted with the following:
‘
(c)(i)
The plaintiffs’ claims flowing from an alleged infringement of
South African Patent ZA 98/6778 are dismissed.
(ii) The parties are to bear
their own costs.’
JUDGMENT
Leach JA (Swain, Dambuza and
Mathopo JJA and Makgoka AJA concurring)
[1]
The first appellant
manufactures what is called a ‘swivel holster’ in which
handheld firearms may be housed, a product
both appellants have
disposed of in this country. The respondents are the joint registered
proprietors of a registered patent number
ZA 98/6778 entitled ‘A
Lockable Holster’ (the patent). They sued the appellants in the
Court of the Commissioner of
Patents, claiming that their swivel
holster infringes the patent in various respects and seeking
consequential relief. The appellants,
in turn, filed a counter claim,
contending that the patent was invalid as the invention to which it
referred is not patentable
under s 25 of the Patents Act 57 of 1978
(the Act) and ought to be revoked.
[2]
The respondents were successful. Not only was the appellants’
counter claim dismissed but an order in the respondents’
favour
containing, inter alia, the following relief, was granted:
‘
(i)
The first and second appellants are interdicted from infringing each
of claims 1 and 7 of the patent by, in the Republic, manufacturing,
using, making, disposing or offering to dispose of the Swivel Holster
or any other product falling within the scope of those claims.
(ii)
An order for the delivery up for destruction of any product in the
possession or under the control of the appellants which
infringe any
of claims 1 and 7 of the patent;
(iii)
An enquiry into damages suffered by the respondents as a consequence
of the infringement of the patent and payment of the
amount of
damages found to have been so suffered, alternatively into the extent
of the infringement and the amount of a reasonable
royalty to be paid
in lieu of damages, and payment of the amount of royalties found to
be so payable.’
It
is against this order that the appellants appeal to this court. There
is no appeal against the dismissal of their counter claim
or a
further order declaring the patent to be valid.
[3]
It is hardly necessary to say that an inquiry as to whether there has
been an alleged infringement of a patent requires, as
a first step,
an interpretation of the patent itself. A patent is divided into two
parts, firstly a description or the body of
the specification which
serves to describe the invention in sufficient detail that the
rational person skilled in ‘that art’
can understand what
the invention is and how it is put into practice. The second contains
the claims in the patent, which serve
to define and set limits to the
monopoly that the patent is intended to secure and protect.
As
opposed to the specifications, the function of the claims in a patent
is ‘to inform prospective rivals of the limits of
the field
denied to them while the patent lasts’.
[1]
[4] The various claims thus
define the exclusive rights of the patentee and are often referred to
as the ‘fences’ or
‘boundaries’ which provide
the ‘fields’ of the monopoly. As the primary object of a
claim is therefore
to limit and not extend the patentee’s
monopoly, it has given rise to the well-worn phrase that ‘what
is not claimed
is disclaimed’. As was said in
Electric and
Musical Industries
:
‘
The
function of the claims is to define clearly and with precision the
monopoly claimed, so that others may know the exact boundary
of the
area within which they will be trespassers. Their primary object is
to limit and not extend the monopoly. What is not claimed
is
disclaimed. The claims must undoubtedly be read as part of the entire
document and not as a separate document; but the forbidden
field must
be found in the language of the claims and not elsewhere.’
[2]
The
necessity for the monopoly to be defined in the claim was graphically
described as follows in
Marconi’s
Wireless Telegraph v Phillips Lamps Ltd
1933 RPC 287:
[3]
‘
It
is not sufficient for the inventor to discover his gold mine ─
he must also peg out his claim. Outside the pegs, the gold,
if it is
there, is free to all.’
[5]
Bearing these principles in mind, I turn first to the specifications
which are exhaustively and repetitively set out in the
patent.
Mention is made therein of ‘camming’ surfaces and how
‘
attempted
withdrawal of the fire-arm from the holster cavity without releasing
the locking member results in the trigger guard bearing
against the
second camming surface exerting a moment around the pivot axis of the
locking member thereby urging the locking member
into a more firmly
locked position’.
[6] Crucial to this description
and the operation of the invention (and for that matter the outcome
of this appeal) is the meaning
of ‘camming’ surfaces. In
M Props (Pty) Ltd v K Riemann and Riemann Associates and
another
1997 BIP 17 (CP) 22 the expert witnesses on both sides
agreed that a cam is ‘a mechanical device used to convert one
kind
of displacement or motion to another kind of displacement or
motion by making use of a specially designed profile’. The
court
(MacArthur J) accepted this and continued:
‘
The
conversion of the motion is achieved by the cam driving or guiding
another component called a follower. It is not necessary
to discuss
the situations referred to by Dr Hunt where the follower controls the
cam. Through the special shaping of the cam, i.e.
the designed
profile, the rotational movement in the cam may be converted into a
linear motion in the follower. In the same way
the cam could have a
linear motion and be provided with a particular profile as to give a
different linear motion in the follower.
Likewise a rotational motion
in the cam can provide a different rotational movement in the
follower. In other words, the cam mechanism
which comprises the cam
and the follower can convert a given input motion into an output
motion of a particular desired form. A
cam system is clearly a
versatile and flexible tool.’
[7]
Relying upon
M Props
, the court a quo held a ‘camming
surface’ to be the surface or site at which motion is imparted
to the cam by the follower,
in this case, the trigger guard. This
finding was accepted by both sides in the appeal in this court, quite
correctly, and will
be used by me in the analysis that follows.
[8]
Bearing that in mind, the somewhat convoluted description of the
patented holster’s operation set out above becomes clear
once
regard is had to the drawing, Figure 2, annexed to the patent and
reproduced below:
[See
PDF or RTF download for image]
[9]
In this
figure, numeral 10 generally indicates a holster broadly in
accordance with the invention. The working of the invention
is
further described in the specification in terms similar to those
already quoted above:
‘
The
holster 10 has a body 12 and a locking member in the form of a latch
16 mounted on the body 12.
.
. .
The
latch 16 is pivotally mounted on an outer surface 17 of the body 12
for limited pivotal translation about a pivot axis defined
by a pivot
pin 26. The latch 16 is in the form of a first order lever and
includes an effort arm 30 and a working arm 31 positioned
on opposite
sides of the pivot axis. A biasing spring 28 is positioned in
compression between the effort arm 30 of the latch 16
and the body
12, biasing the effort arm 30 away from the body 12 into a locked or
fire-arm retain position of the latch 16 (shown
in solid lines in
Figure 2), in which a portion of the working arm 31 protrudes into a
trigger guard passage interfering position
in the trigger guard
retaining region 20 of the cavity 14. Two angularly spaced camming
surfaces namely, a first camming surface
18 and a second camming
surface 19 are provided on that portion of the working arm 31 which,
in the locked or fire-arm retaining
position of the latch 16
protrudes through the aperture 26 into the trigger guard region 20.
.
. .
In
Figure 2, reference numeral 50 generally indicates a fire-arm. The
fire-arm 50 has a muzzle 58 and a trigger guard 52 having
a leading
or outer edge 54 and a trailing or inner edge 56.
.
. .
In
use, when the fire-arm 50 is inserted into the holster 10, the
camming surface 18 of the latch 16 is engaged by the leading edge
54
of the trigger guard 52, cam-follower fashion, urging the camming
surface 18 outwardly and causing the latch 16 to pivot in
the
direction of arrow 51 against the bias of the spring 28, to permit
the passage of the trigger guard 52 past the working arm
31 into the
trigger guard retaining region 20. When the trigger guard 52 has
passed the camming surface 18 into the trigger guard
retaining region
20, the latch 16 snaps back under the influence of the spring 28 into
a locked position behind the trailing edge
56 of the trigger guard
52, thereby retaining the fire-arm 50 within the holster 10.
Attempted
withdrawal of the fire-arm from the holster cavity 14 without
releasing the latch 16, i.e. displacing the latch towards
its
displaced position, results in the trailing edge of the trigger guard
bearing against the second camming surface 19 thereby
exerting a
moment around the pivot axis 26 of the latch 16 which serves to urge
the latch 16 into a more firmly locked position.
This action is
assisted by the inclination of the second camming surface 19.
In
order to remove the fire-arm 50 from the holster, the latch 16 is
manually displaced, against the bias of the spring 28, in the
direction of arrow 51 to its released position (shown in broken lines
in Figure 2) in which the latch is clear of the trigger guard.
This
displacement past the trigger guard is assisted by the radiussed
portion 21 of the camming surface 19. In this position, the
working
arm 31 is clear of the trigger guard 52 permitting the fire-arm 50 to
be drawn from the holster 10.’
(Emphasis provided.)
[10]
More simply put, the specification describes that on insertion of a
firearm into the holster its trigger guard,
when coming into contact
with the spring mounted latch on its camming surface 18, forces it
out of the way towards the body of
the holster. As the weapon is
inserted deeper into the holster and the trigger guard passes its
tip, the latch springs back behind
the trigger guard, effectively
locking the firearm into the holster. In order for the firearm to be
withdrawn from this locked
position, the latch has to be manually
displaced. But should an attempt be made to withdraw the firearm
without doing so, due to
its angle of inclination and the curved
shape of its camming surface 19, on coming into contact with the
inside edge of the trigger
guard, the latch will be forced deeper
into the cavity behind the trigger guard and lock the weapon more
firmly into place (this
being the function emphasised in the
specification as quoted above).
[11]
That then is the description of the invention as set out in the
specification of the patent. I turn now to deal
with the claims
‘pegged out’ by the patentee.
[4]
There are ten claims set out in
the patent, only two of which – claims one and seven –
were relied upon by the respondents.
In turn, claim seven is in
itself, wholly dependent upon claim one. Consequently, both sides are
agreed that if claim one of the
patent has not been infringed,
neither has claim seven.
[12]
The parties are also agreed that the integers of the first claim of
the patent are the following:
‘
(a)
A lockable holster which includes
(b)
a moulded holster body within which part of a fire-arm having a
trigger guard is receivable,
(c)
the holster body having walls defining a cavity for receiving at
least part of the firearm including at least a portion of the
trigger
guard and
(d)
an aperture in a wall of the holster body at a location corresponding
to a trigger guard retaining region of the holster body,
(e)
first locking means on the holster body
(f)
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,
(g)
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
(h)
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
(i)
and whereon angularly spaced apart first and second camming surfaces
are provided,
(j)
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
(k)
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
(l)
the second camming surface is engageable by the trigger guard to
inhibit unauthorised withdrawal of the fire-arm from the holster,
and
(m)
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.’
[13]
The crucial question is whether the appellants’ swivel
holster infringes this claim. In order to determine
whether an
alleged infringement of the patent has been proved in a case such as
this, it is necessary to compare the allegedly
offending article (the
swivel holster) against the words of the claims set out in the
patent.
[5]
In this inquiry, the language of the claim is to be purposively
construed in order to establish what were intended to be the
essential
elements of the claim, regard being had to the context of
the invention as a whole.
[6]
[14]
The allegedly offending holster is illustrated below to facilitate
the comparison that has to be made between it
and a device envisaged
by the language of the patent (the diagram was attached to the heads
of argument of respondents’ counsel):
[See
PDF or RTF download for image]
[15]
It is apparent from this that what is described as the ‘locking
lug 66’, at the end of the locking member 52, operates
as a
locking mechanism in a manner similar to that of the spring-mounted
latch (or ‘locking member’ as defined in the
claim) in
that, upon a firearm being inserted into the holster the trigger
guard, engaging with the angled surface 68 of the locking
lug, will
force it out of its path against the spring loaded arm towards the
body of the holster until, after the trigger guard
has passed beyond
the nose of the lug, the latter snaps back into place to secure the
firearm in a locked position within the holster.
And, as in the case
of the patent, the lug 66 has to be manually disengaged from that
locked position to allow the weapon to thereafter
be withdrawn from
the holster.
[16]
The parties are therefore agreed that the surface 68 is a ‘camming
surface’ as envisaged by the patent
and that the appellants’
swivel holster satisfies the integers [j] and [k] of the first claim.
The primary dispute between
them, however, is whether it also
contains integer [l], namely, a second camming surface ‘engageable
by the trigger guard
to inhibit unauthorised withdrawal of the
firearm from the holster’.
[17]
On this issue, the court a quo was persuaded that the nose of the
locking lug on the swivel holster, which is shaped
as it is so as to
allow the trigger guard to pass easily over it and move the locking
lug out of the way when a firearm is either
inserted into or
withdrawn from the holster, constituted part of the surface 70. It
found accordingly that surface 70 was to be
construed as a second
camming surface as envisaged by integer [l].
[18]
In my view, whilst it can be accepted that the radiused nose is
indeed designed to facilitate the trigger guard
passing the locking
lug once the locking member is manually released, the court a quo
erred in concluding both that it is part
of surface 70 or that it
satisfies integer [l].
[19]
The patent teaches that when the locking member is in its locked
position with a firearm in the holster, the second
camming surface is
to be ‘engageable by the trigger guard to inhibit unauthorised
withdrawal of the firearm’. This
is achieved by the curved
shape of the second camming surface and the acute angle at which it
is inclined in relation to the trigger
guard, the effect of which in
the case of an attempted withdrawal without releasing the locking
member is to urge the locking member
into an even more firmly locked
position.
[20]
In this regard it differs from the appellants’ swivel holster.
In the case of the latter, when in the locked
position, the radiused
nose of the locking lug is orthogonal (at a right angle) to the
trigger guard and extends well into the
cavity of the holster. As a
result, and due to its radiused form, the nose of the lug will not
engage the trigger guard should
there be an attempt to remove the
firearm (it will only do so once the locking mechanism is released
and the firearm partially
withdrawn.) Instead such an attempt would
result in the flat bottom surface 70 of the lug resisting the
movement of the trigger
guard rather than converting it into a
movement displacing the locking lug away from the trigger guard. Thus
the flat surface of
the locking lug, when in its locked position,
cannot be construed as being a camming surface. This alone
distinguishes the appellants’
holster from a holster envisaged
by integer [l]. Moreover, I can see no reason to regard the radiused
nose of the locking lug,
designed to facilitate the lug’s easy
movement over the trigger guard when a firearm is being either
inserted or withdrawn,
as part of the flat surface designed to
prevent withdrawal when the holster is in a locked position.
[21]
Counsel for the respondents sought to meet this by arguing that as
the flat surface 70 of the locking lug was the
site upon which motion
was imparted by the trigger guard when the locking member was
released, it performed a camming function
during that operation and
was, consequently, a camming surface in that context. He argued
further that integer [l] did not require
the second camming surface
to perform a camming function at the time of an attempted
unauthorised withdrawal, and that as long
as surface 70 was a camming
surface at some stage it was to be regarded as the second camming
surface envisaged by integer [l].
[22]
In support of the argument that integer [l] did not require the
second camming surface to perform a camming function
at the time of
an attempted unauthorised withdrawal, counsel emphasised the teaching
in integer [j] that the first camming surface
is to be ‘engageable,
cam-follower fashion, by the trigger guard of the firearm’ on
its insertion whereas no mention
is made in integer [l] of the second
camming surface having to be engaged in a similar fashion on its
withdrawal. Thus, so the
argument went, if the flat surface of the
locking lug performs a camming function in another context it should
be regarded as a
camming surface at all times envisaged by the
patent. And as it performs a camming function once the locking
mechanism is released,
it falls within what is to be regarded
as a second camming surface for purposes of integer [l].
[23]
As was pointed out by this court in
Aktiebolaget
Hässle
[7]
the language of the claim must be construed purposively in order to
extract from it the essence for the essential elements of the
invention, ‘rather than a purely literal one derived from
applying to it the kind of meticulous verbal analysis in which
lawyers are too often tempted by their training to indulge’.
[8]
And as was made clear in
Ausplow
v Northpark Trading
[9]
it is necessary when interpreting a patent to construct rather than
deconstruct a text of the claim to arrive at an interpretation
which
is technically sensible. A claim is not to be considered in
isolation but, as was held by this court in
Vari-Deals,
[10]
recourse should be had to the full context and background including
the specification to decide what a person skilled in their
art would
have understood the claim to mean.
[11]
[24]
The essence of the patented invention is that an unauthorised
withdrawal of a firearm results in it being secured
more firmly in
the holster. This purpose is achieved by way of the camming effect
caused by the trigger guard of the firearm engaging
the second
camming surface. Bearing that in mind, and applying a purposive
construction to the language used in integer [l], having
regard to
the context in which that integer appears in the patent –
including the vital function of the second camming surface
19 as
illustrated in figure 2 of the patent to force the latch deeper
into the cavity behind the trigger guard to lock
the weapon
more firmly into place should there be an attempted unauthorised
withdrawal – the language used, properly
construed,
conveys clearly that integer [l] requires the second camming surface
to function in that way in order to inhibit an
unauthorised
withdrawal. The respondents’ argument to the contrary effect
cannot be accepted. It would render superfluous
the use of the phrase
‘second camming surface’ in the integer.
[25]
One final issue needs to be discussed. As a last ditch stand, it was
argued on behalf of the respondents that if sufficient
force was
applied to the appellants’ swivel holster in an attempted
unauthorised withdrawal of a firearm without releasing
the locking
mechanism, the holster could be sufficiently deformed to the extent
that its body could be twisted sufficiently so
as to be no longer
orthogonal to the locking lug. In that event, so the argument went,
the lug could no longer be at a right angle
when engaged by the
trigger guard and could act as a second camming surface. Indeed, and
surprisingly, much of the evidence of
the trial related to the
question of whether in this instance the appellants’ swivel
holster’s locking mechanism was
capable of in fact performing
the securing function of the patent ie urging the locking lug into a
more firmly locked position
when an attempt was made to withdraw the
weapon without first releasing the locking mechanism, similar to the
way the patented
holster operates.
[26]
Whilst the ingenuity of counsel never ceases to amaze, this is a red
herring. There is no suggestion that the appellants’
swivel
holster is designed to deform in any way, let alone in a manner that
will cause the locking lug to be forced into a more
firmly locked
position during an unauthorised attempt to withdraw a firearm. The
expert called on behalf of the appellants, Mr
Kiesling, testified
that the flat surface of the locking lug would remain orthogonal to
the direction of the gun barrel and the
engaging surface of the
trigger guard, even if there was a deformity of the holster. It seems
to me to be unnecessary to decide
whether his view or that of the
respondents’ expert, Mr Resca, who opined that a withdrawal
could cause a degree of rotation
of the locking lug due to a
deformation around the pivot axis of the pivot point thereby causing
the locking lug to act as a cam,
needs be accepted. If, through the
application of an extraordinary force, a holster deforms causing a
part not designed as a camming
surface to impart motion upon another
part due to the deformation, this seems to me to be irrelevant in the
process of interpreting
the patent to decide whether that part should
be viewed as a camming surface. The issue is whether the holster as
designed infringes
the patent, not how the individual parts of the
holster might operate should it be deformed through extraordinary
force.
[27]
Consequently, in my view, surface 70 of the locking lug 66 of the
appellants’ swivel holster is not to be
construed as a second
camming surface as envisaged by integer [l] of the first claim in the
respondents’ patent. It is designed
to block motion and not to
convert motion from the trigger guard into motion in another
direction. That being the case, the respondents
failed to show that
the appellants’ holster included integer [l] of the first claim
in the patent.
[28] As already
mentioned, the claims in a patent define the exclusive right of the
monopoly that rests in the patentee.
Infringement of a patent thus
involves taking of the invention as set out in the claims. The fact
that there are clearly in this
case considerable similarities between
the apparatus envisaged by the patent and the appellants’
swivel holster is insufficient
to establish an infringement. In order
for that to be the case::
‘
The
patentee must show that the defendant has taken each and every one of
the essential integers of the patentee’s claim.
Therefore if,
on its true construction, the claim in a patent claims a particular
combination of integers and the alleged infringer
of it omits one of
them he will escape liability.’
[12]
Thus
in
Rodi
& Wienenberger AG v Henry Showell Ltd
1966
RPC 441
(CA) at 467, a passage cited with approval by this court,
inter alia, in
Raubenheimer
& another v Kreepy Krauly (Pty) Ltd & another
1987 (2) SA 650
(A) at 656I-657B, it was stressed that if the
language the patentee has used:
‘
.
. . specifies a number of elements or integers acting in a particular
relation to one another as constituting the essential features
of his
claim, the monopoly which it obtains is for that specified
combination of elements or integers so acting in relation to
one
another ─ and for nothing else. There is no infringement of his
monopoly unless each and every one of such elements is
present in the
process or article which is alleged to infringe his patent and such
elements also act in relation to one another
in the manner claimed
.’
[29]
As integer [l] of the first claim is not present in the appellants’
holster, the court a quo therefor erred
in concluding that the patent
had been infringed. Consequently, the respondents’ claims
relating to the alleged infringement
– set out in para (c) of
the order a quo – must be set aside. However, paras (a) and (b)
of that order which relate
to the counter claim and the validity of
the patent were not challenged on appeal and must stand.
[30]
In regard to costs, the appellants have been successful and are
entitled to their costs of appeal. In respect of the costs
in the
court below, each side has ultimately enjoyed a measure of success –
the appellants have successfully resisted the
relief the respondents
sought against them while the latter successfully defended the
validity of their patent. As suggested by
counsel for the appellants,
an order that the parties should bear their own costs is appropriate
in these circumstances.
[31] It is therefore ordered as
follows:
1 The appeal succeeds, with
costs.
2 Para (c) of the order of
the court a quo is set aside and is substituted with the following:
‘
(c)(i)
The plaintiffs’ claims flowing from an alleged infringement of
South African Patent ZA 98/6778 are dismissed.
(ii) The parties are to bear
their own costs.’
_______________________
L E Leach
Judge of Appeal
Appearances:
For
the Appellant:
A J Bester SC
Instructed
by:
Spoor & Fisher, Pretoria
Phatshoane
Attorneys, Bloemfontein
For
the Respondent:
G D Marriott
Instructed
by:
Adams & Adams, Pretoria
Honey
Attorneys, Bloemfontein
[1]
Per Holmes JA in
Letraset
Ltd v Helios Ltd
1972
(3) SA 245
(A) recently cited with approval in this court in
Cipla
Medpro (Pty) Ltd v Aventis Pharma SA and related appeal
2013 (4) SA 579
(SCA) para 24.
[2]
Electric and Musical
Industries Ltd v Lissen Ltd
(1938) 56 RPC 23
[UK]: Quoted by LTC Harms
The
Enforcement of Intellectual Property Rights: A Case Book
3
ed (2012) at 259.
[3]
Also quoted by Harms at 259.
[4]
I plagiarise the phraseology
used in
Marconi’s
Wireless
quoted
in para 3 above.
[5]
Aktiebolaget Hässle &
another v Triomed (Pty) Ltd
2003
(1) SA 155
(SCA) para 7 and the authority there cited.
[6]
Aktiebolaget
paras
7-9.
[7]
Aktiebolaget Hässle &
another v Triomed (Pty) Ltd
2003
(1) SA 155
(SCA) para 8.
[8]
Catnic Components Ltd and
another v Hill & Smith Ltd
[1982]
RPC 183
(HL) at 242 cited in
Aktiebolaget
Hässle
para 8.
[9]
Ausplow (Pty) Ltd v Northpark
Tradng 3 (Pty) Ltd & others
2011 BIP 12 (SCA); [2011] 4 All SA 221 (SCA)..
[10]
Vari-Deals
101 (Pty) Ltd t/a
Vari-Deals v Sunsmart Products (Pty) Ltd
2008
(3) SA 447
(SCA) para 11.
[11]
See further:
Kirin-Amgen
Inc & others v Hoechst Marion Roussel& others
[2004] UKHL 46
;
[2005]
1 All ER 667
(HL) para 44 and
Monsanto
Co v MDB Animal Health (Pty) Ltd (formerly MD Biologies CC)
2001 (2) SA 887
(SCA) para 8.
[12]
Populin v H B Nominees
(1982) 41 ALR 471
quoted by Harms op cit at 263.