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[2010] ZAGPPHC 135
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Ausplow Pty Ltd v Northpark Trading 3 (Pty) Ltd and Others (95/0812) [2010] ZAGPPHC 135; 2011 BIP 1 (CP) (5 October 2010)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE/PATENT
NO: 95/0812
DATE:
5 October 2010
In
the matter between:
AUSPLOW
PTY
LTD
...........................................................................................
Applicant
and
NORTHPARK
TRADING 3 (PTY)
LTD
.............................................................
First
Respondent
THE
REGISTRAR OF
PATENTS
.....................................................................
Second
Respondent
MARAIS
ENGINEERING (PTY)
LTD
................................................................
Third
Respondent
MARAIS
STEYN
....................................................................................................
Fourth
Respondent
LEAVE
TO APPEAL JUDGMENT
MURPHY
J
1.
The applicant seeks leave to appeal against my judgment handed
down on 30 April 2010.
2.
The
litigation currently between the parties flows from an order of the
Supreme Court of Appeal ("SCA") either suspending
and
postponing its decision to revoke the patent in suit, or
provisionally revoking it, pending consideration of an application
to
amend the patent.
3.
In
the main judgment I granted absolution from the instance in respect
of an action for infringement based on the patent as proposed
to be
amended, and further refused the application for amendment on the
grounds that the proposed amendment would not remedy the
continued
invalidity.
4.
As
I stated in the judgment, it appears to me from the terms and
substance of the order of the SCA that it intended to revoke the
patent provisionally and not to suspend revocation, despite the
reference by the SCA to section 68 of the Act. Counsel sought an
order in terms of section 68 but failed to alert the SCA to the
jurisdictional preconditions, which, as was common cause before
me,
had not been met. In any event, from the wording of the order of the
SCA it appears that the SCA did not intend to make an
order in terms
of section 68, but preferred to provisionally revoke the patent in
terms either of section 61 or its inherit jurisdiction.
In
consequence,
I
held
that it is not competent to bring infringement proceedings in respect
of a patent which had been revoked, albeit provisionally,
and hence
I
granted
absolution. Despite the clear wording of the order, there is, in view
of the reference to section 68, an inescapable ambiguity
in the
intention of the SCA, and accordingly a reasonable possibility that
I
have
erred in concluding that the intention was to revoke the patent
provisionally. If that is so, then another court might see
no
obstacle in the way of referring the action for infringement to trial
on the basis of proposed amendments considered to be
prima
facie
valid.
5.
In
this latter respect, I am also of the view that, contrary to my
finding, another court might conclude that in determining whether
to
grant an amendment the court should not have regard to the normal
grounds for revocation, but should limit itself to the issues
of
formal compliance and allow the questions of validity to be
determined as part of infringement proceedings.
6.
If
I have indeed erred in both respects, it would mean that another
court might grant the amendments solely on the basis of formal
compliance and then would allow the questions of infringement and
validity in relation to the amended patent to be determined at
a
trial.
7.
Additionally,
it has been submitted that I erred in assuming that the SCA, by
reason alone of its conclusion that the patent did
not involve an
inventive step, had in effect overruled the finding of the court a
quo
that
the unique combination and arrangement of the assembly components was
inventive. The basis of Southwood J's dismissal of the
defence of
obviousness was the existence of such a unique combination. As I say
in my judgment, although the SCA made no overt
finding on the point,
had it considered the combination unique, it would not have upheld
the defence of invalidity. More pertinent
though is the question of
whether the proposed new claim 1, providing for a second mounting
means, as set out in the amendment,
overcomes the lack of
inventiveness, by reason,
inter
alia,
of
the arrangement of the assembly components (including the second
mounting means) constituting a unique combination. My finding
is to
the effect that the second mounting means does not overcome the lack
of inventiveness, because such is obvious and does not
go beyond or
differ from the prior state of the art, disclosed in the Dreyer
patent in the form of a roller adjustably mounted
relative to the
sowing share, and a pivoting lever adjusting the height of the sowing
share which together achieve a planting depth
in appropriate
alignment with the land contour. I held further that it was not
necessary for the court to hear expert evidence
on the matter because
the question regarding the provision of the second mounting means and
attachment to the tine, to the extent
that such may differ from the
Dreyer invention, was whether it would be obvious to the skilled
person, and such determination is
a question for the court and not an
expert -
Schlumberger
Logeico Inc v Coflexip
2003
(1) SA 16
(SCA). That said, I accept that another court could
conclude that the technical evidence of an expert witness may be
required to
determine in what respect the combination, embodied in
part, by the second mounting means and attachment to the tine,
differs from
the arrangement disclosed in the Dreyer combination,
where I have found no difference.
8.
In
the premises, there is a reasonable prospect that a higher court may
reach different conclusions to those I have reached and
accordingly
leave to appeal to the SCA should be granted.
9.
In
the result, I make the following orders:
1.
The
applicant is granted leave to appeal to the Supreme Court of Appeal.
2.
The
costs of this application will be costs in the appeal.
JR
MURPHY
JUDGE
OF THE HIGH COURT
Date
Heard:
9
September 2010
For
the Applicant:
Adv
DR Harms, Cape Town
Instructed
By:
Adams
& Adams, Pretoria
For
the Respondent: Adv C van der Westhuizen SC, Adv RD Engela, Pretoria
Instructed
By:
Dr
Gernholtz Inc., Pretoria