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[2007] ZASCA 50
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Sunsmart Products (Pty) Ltd v Flag and Flagpole Industries t/a National Flags (72/06 , Patent Case 97/10535) [2007] ZASCA 50; 2007 BIP 44 (SCA) (3 April 2007)
Links to summary
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
SCA CASE NO: 72/06
PATENT CASE NO 97/10535
In the matter between :
SUNSMART
PRODUCTS (PTY) LTD
......................
Appellant
and
FLAG
& FLAGPOLE INDUSTRIES (PTY) LTD
t/a
NATIONAL FLAGS
......................
Respondent
SCA CASE NO: 72/06
TPD CASE NO 7385/04
In the matter between :
SUNSMART
PRODUCTS (PTY) LTD
......................
Appellant
and
FLAG
& FLAGPOLE INDUSTRIES (PTY) LTD
t/a
NATIONAL FLAGS
......................
Respondent
_____________________________________________________________________________
Before: STREICHER, FARLAM, NUGENT, CLOETE & PONNAN JJA
Heard: 16 MARCH 2007
Delivered: 3 APRIL 2007
Summary:
Patents Act 57 of 1978
– novelty –
obviousness – infringement.
Designs Act 195 of 1993
– novelty.
Neutral citation: This
judgment may be referred to as
Sunsmart
v Flag and Flagpole Industries
[2007] SCA 50 (RSA)
_____________________________________________________________________________
J U D G M E N T
____________________________________________________________________________
STREICHER JA
STREICHER JA:
[1] An action in the Court of the Commissioner of
Patents and an action in the Pretoria High Court were, by agreement
between the
parties, heard together by Southwood J. The action in the
Court of the Commissioner of Patents was for an interdict restraining
the
respondent from infringing patent 97/10535 while the action in
the High Court was for an interdict restraining the respondent from
procuring or inducing the infringement of a design with registration
number A97/1155. Both actions were dismissed by the court a
quo which
subsequently granted the appellant leave to appeal to this court.
THE PATENT
[2]
The appellant is the proprietor of patent 97/10535 (the patent). The
respondent denied that it was infringing the patent and claimed
by
way of a defence that the patent was in any event invalid for lack of
novelty and for being obvious. The court a quo held that
the patent
was not being infringed by the respondent as the alleged infringing
article did not contain one of the essential integers
of the claims
thereof. As a result of this finding the court a quo found it
unnecessary to deal with the defence of invalidity of
the patent.
[3] In the specification of the patent it is stated that
the ‘invention’ relates to a flag construction. As
background
to the invention it is stated that flags and banners are
commonly used for advertising purposes but that both have certain
drawbacks.
Flags require sufficient wind before the material spreads
out and in windy conditions the flapping of the material may make
reading
difficult. Banners on the other hand can be utilised in low
or no wind conditions but are difficult to secure in strong winds
which
may cause them to tear. It is stated that the object of the
‘invention’ is ‘therefore . . . to provide a flag
which
does not suffer the above disadvantages and which is eminently
suitable for transportable advertising’.
[4]
The
‘invention’ itself is defined in the claims as follows:
‘
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 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 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.
A flag construction according to claim 2 in which the tapered
section is integral with the pole.
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.
A flag construction according to any of the above claims including
the combination of an inverted U-shaped section with an inverted
tear-drop-shaped piece of material.
A flag construction according to any of the above claims in which
the pole is adapted to rotate about its own axis.
A flag construction substantially as described with reference to the
accompanying drawing.’
[5] The accompanying drawing is depicted below:
[6]
The description with reference to the drawing reads as follows:
‘
In the drawing a flag construction 10
comprises a fibreglass pole 12 the top end 14 of which tapers almost
to a point rendering it
flexible.
A piece of cloth 16 is provided in the shape of an inverted tear drop
having a seam 18 running along one side and over the curved
upper
edge 20 of the inverted tear drop.
The inherent resilience of the fibreglass pole maintains the cloth
under tension rendering any advertising material printed therein
visible even in calm conditions.’
Infringement
[7] The photograph below depicts the product
manufactured by the respondent, being the flag which gave rise to
these proceedings.
[8] The court a quo described the flag as follows:
‘
The
defendant’s banner or flag (exhibit C) consists of a glass
fibre pole which tapers to a point at and can be bent into an
inverted U at its upper end. Onto this pole, under the inverted U, is
attached a piece of yellow material in the shape of an inverted
teardrop. This piece of material has a sleeve which runs up one side
and over the top of the inverted U. The material is attached
to the
pole when the pole is inserted into the sleeve. In order to be fully
inserted the pole must bend to follow the sleeve around
the U-shaped
material. The natural tendency of the pole is to straighten and this
creates tension in the material which prevents
the pole from
straightening. A cord is attached to the bottom of the sleeve near
the base of the pole. This is used to pull the sleeve
towards the
base of the pole so that it cannot slide up the pole and reduce the
tension in the material. Another cord runs along
the other side of
the material from the end of the pole at the point of the U to the
bottom of the sleeve near the base of the pole.
This cord assists in
maintaining the tension of the whole construction including the
tautness of the material. The lower end of the
pole is inserted into
a stand which enables the construction to rotate on its axis. The
yellow material bears the marketer’s
message. The construction
is intended to be used as an alternative, easily transportable,
advertising medium.’
[9]
In order to determine whether the respondent’s flag infringes
the patent it is necessary to determine what the essential
integers
or features of the abovementioned claims are. If all the essential
integers of a claim are present in the respondent’s
flag it
infringes the patent.
1
The
court a quo identified, among others, the following two integers as
being essential integers of claim 1(for ease of reference
I shall
retain the court a quo’s numbering):
‘
(b)(iii) (a pole) being adapted to engage
at least a portion of the upper periphery of a piece of material; and
(iv) (a pole) (being adapted) to maintain it (ie the material) under
tension at least in the area defined by the pole, the U-shaped
section and the line between the point towards the tip of the
flexible section and a point along the length of the pole.’
[10] Counsel for the appellant and the respondent in
argument in the court a quo as well as before us accepted that these
two integers
were essential integers of claim 1 but differed as to
the meaning to be ascribed to them.
[11] The court a quo held that integer (b)(iii) was not
present in the respondent’s flag and that the flag, therefore,
did not
infringe the patent. It reasoned as follows:
‘
The key words are “adapted” and
“engage”. The appropriate meaning of “adapt”
in the Shorter Oxford
English Dictionary is “to make suitable
for” and of “adapted” is “fit for” or
“altered
so as to fit”. The appropriate meaning of
“engage” in the SOED is “to fasten, attach”.
The construction
of the defendant’s flag has already been
described. No part of the pole is adapted to engage the material in
the sense that
it has been made suitable for fastening or attaching.
On the contrary, it is the material which has been adapted to engage
the pole.
The addition of the sleeve makes this possible.’
[12] Expanding on this reasoning of the court a quo the
respondent submitted that a flat piece of material cannot be engaged
by the
pole used in the construction of the respondent’s flag
because the pole used by the respondent has not been adapted to
engage
a piece of material as required by the claims. It is the
material that has been adapted by working a sleeve into it so as to
adapt
the pole. The draughtsman, according to the respondent, made a
mistake by requiring the pole to be adapted to engage the material.
[13]
It is well settled that the claims in a specification should be given
a purposive construction so as to extract from them the
essence or
the essential elements of the invention.
2
In
this case the essence of integer (b)(iii) is that the pole and the
material be attached to one another (that they ‘engage’
one another) at least in respect of the upper periphery thereof. It
can make no difference whether a pole as initially manufactured
is
suitable for engaging material or whether it was subsequently made
suitable for that purpose. For this reason Claim 1, in so far
as it
requires ‘a pole being adapted to engage’ was probably
intended to, and should therefore be interpreted so as to
simply
require a pole that is suitable for engaging (in the sense of
attaching) at least the upper periphery of a piece of material.
In
the case of the respondent’s flag the material and the pole are
attached to one another. The pole is, therefore, suitable
for
engaging the material. But, according to the submission by counsel
for the respondent and, by implication, the reasoning of the
court a
quo, the pole must not only be suitable for engaging material
it must be suitable for engaging a flat piece of material
ie a piece
of material without a sleeve. However, that requirement is not to be
found in claim 1 and there seems to be no reason
to interpret the
claim so as to include such a requirement. The manner of attachment
is not specified, indicating that it is the
attachment as such which
is essential, not the manner of attachment.
[14]
The above construction gives effect to the requirement that ‘claims
should be construed as a whole so as to give, as far
as their
language permits, a sensible consistent meaning to every claim and
its integers . . ..’
3
Claim
2 incorporates claim 1 but adds a limitation to it, claim 3 adds a
further limitation to claim 1 and claim 4 adds yet another
limitation
to claim 1. Claim 1 is therefore the broadest claim. The restriction
introduced by claim 4 is the requirement that the
material should
include a seam or a sleeve along one edge into which the tapered end
of the pole is slid. To interpret claim 1 so
as to require the pole
to engage a piece of material without a sleeve would be inconsistent
with claim 4.
[15] For these reasons I am of the view that integer
(b)(iii) is present in the respondent’s flag.
[16] Counsel for the respondent submitted that the court
a quo erred in holding that integer (b)(iv) was present in the
respondent’s
flag. The court a quo held in this regard:
‘
[I]t is clear that the pole is tapered so
that it will follow the bend in the material but it will still tend
to straighten and this
produces tension in the material. It is this
feature that maintains the tension in the material in the area
described in the integer.
The pole is therefore adapted to maintain
the material under tension in the area described.’
[17] Relying on the evidence of Mr J W Bailey, the
managing director of the appellant, who was called as an expert
witness by the
appellant, counsel for the respondent submitted that
the tension in the respondent’s flag was not maintained by the
pole but
was maintained by three factors, namely the flexible pole,
the cord pulling the material towards the bottom of the pole and the
cord
running along the edge of the material from the tip of the pole
to the base.
[18] I do not understand Bailey’s evidence to be
to the effect that the cord along the edge of the material is partly
responsible
for maintaining the tension in the material. As I
understand the evidence the material will remain taut if the cord is
removed. The
function of the cord is to preserve the integrity of the
trailing end of the flag. The tension in the material is created when
the
material is pulled down and fastened to the bottom of the pole.
When the piece of rope tying the material to the bottom of the pole
is released the whole flag goes limp.
[19]
In my view the court a quo correctly held that it is the pole and not
the string attached to the bottom of the pole which maintains
the
tension in the material. Once again a purposive construction must be
given to the claim. Tension can only be created if there
is
resistance. The resistance is provided by the material being attached
to the bottom of the pole or in the language of the claim
by the pole
engaging the material at the bottom of the pole. To read the claim as
requiring that the pole and only the pole must
provide the tension in
the material is quite unrealistic.
4
[20] All the essential integers of claim 1 are present
in the respondent’s flag. It follows that, subject to the
validity of
the patent, infringement of the appellant’s patent
by the respondent has been established.
Validity
[21]
The respondent attacked the validity of the patent by way of defence
on the ground that the appellant’s ‘invention’
is
not new and that it did not involve an inventive step.
5
Having
found that the respondent’s flag did not infringe the
appellant’s patent the court a quo considered it unnecessary
to
deal with the question of validity. Before us the respondent
persisted with this defence.
Novelty
[22]
In terms of
s 25(5)
of the
Patents Act 57 of 1978
an ‘invention
shall be deemed to be new if it does not form part of the state of
the art immediately before the priority date
of any claim to that
invention’. The state of the art comprises all matter ‘which
has been made available to the public
(whether in the Republic or
elsewhere) by written or oral description, by use or in any other
way’.
6
The
prior publication ‘describes’ the ‘invention’
if ‘it sets forth or recites at least the latter’s
essential integers in such a way that the same or substantially the
same process or apparatus is identifiable or perceptible and
hence
made known or the same or substantially the same product can be made
from that description in the prior publication; if the
description in
the prior document differs, even in a small respect, provided it is a
real difference, such as the non-recital of
a single essential
integer, the anticipation fails’.
7
In
Synthon
BV v SmithKline Beecham plc
[2005]
UKHL 59
Lord Hoffmann, dealing with the question of anticipation,
referred to
Hill
v Evans
(1862)
31 LJ(NS) 457
at 463 and
General
Tire and Rubber Co v Firestone Tyre and Rubber Co Ltd
[1972]
RPC 457
at 485-486 and said in para [22]:
‘
If I may summarise the effect of these two
well-known statements, the matter relied upon as prior art must
disclose subject matter
which, if performed, would necessarily result
in an infringement of the patent.’
And added in para [25]:
‘
[I]t
is this requirement that performance of an invention disclosed in the
prior art must
necessarily
infringe
the patent which distinguishes novelty from obviousness.’
[23] The respondent contended that US Patent 5,572,945
(the Eastaugh patent) anticipated the appellant’s ‘invention’
in that each of the essential integers of at least claim 1 of the
appellant’s patent was disclosed therein. The Eastaugh patent
is in respect of an omni-directional wind indicator for providing a
skydiver with an indication of the direction and strength of
wind in
the vicinity of a target area. Figure 1, depicted below, is a
perspective view of the invention with the mast inserted into
the
ground. The figure next to it is a similar view of the invention with
a wing assembly attached to it but without the tails (16)
and (18).
[24] In the abstract to the Eastaugh patent the
invention is described as follows:
‘
An omnidirectional wind
indicator. An elongated mast is rotatable about its axis with respect
to a base support. The mast is of tapered
design and flexible,
resilient composition with flexibility increasing with distance above
the base support. A three-sided flag includes
a curvilinear leading
edge. A sleeve is formed along the curvilinear edge for receiving the
mast. When inserted, the upper end of
the mast follows the
curvilinear shape of the sleeve. The resulting configuration
spring-loads the flexible upper portion of the
mast to maintain the
flag in taut alignment. Wind velocity is indicated by tails sewn to
the trailing edge of the flag and by wings
pivotally mounted
transverse to the plane of the flag.’
[25] The appellant contended that integer (b)(vi) ie ‘a
pole (being adapted) to maintain it (ie the material) under tension
at least in the area defined by the pole, the U-shaped section and
the line between the point towards the tip of the flexible section
and a point along the length of the pole’, had not been
anticipated by the Eastaugh patent.
[26]
Bailey testified in respect of the Eastaugh patent that the tautness
in the material caused by the mast would be from about the
arrow (10)
in figure 1 to the tip of the pole ie the point where the tail (16)
is attached. His evidence was not to the effect that
there would be a
U-shaped section under tension. Mr Clingman, the managing director of
the respondent who was called as an expert
witness by the respondent,
referred to a passage in the specification where, by reference to
figure 1, it is stated ‘the mast
22 is bent into a “question
mark” shape’ and testified that he understood a question
mark to be the same shape
as an inverted U.
[27]
Clingman may understand the shape of a question mark to be the same
as an inverted U but what is meant by ‘a question mark’
shape in the specification appears from the drawing of the invention
without the addition of the tails. The ‘question mark’
shape depicted in the drawings cannot be equated to an inverted U.
The Eastaugh patent therefore does not recite integer (b)(iv)
of the
‘invention’. It follows that the attack on the ground of
lack of novelty must fail.
Obviousness
[28] The only evidence adduced in support of the
contention that the appellant’s invention was obvious was that
it would have
been a simple matter to mount the sail flag disclosed
in US patent no 5,167,199 (the Rehbein patent) onto the top of a
pole. However,
at the time it was wrongly assumed that the sail flag
disclosed in the Rehbein patent had a teardrop shape similar to the
respondent’s
flag whereas it in fact has the shape of a
semi-circle. In any event, as was testified by Bailey, it does not
follow from the fact
that it would have been a simple matter to do as
the evidence suggested that the appellant’s ‘invention’
would
not have required inventive ingenuity. Not even Clingman, the
respondent’s managing director and expert witness, was prepared
to say that the ‘invention' was obvious. Apart from relying on
the abovementioned evidence based on the wrong assumption as
to the
shape of the sail flag in the Rehbein patent, no argument was
advanced by the respondent in respect of the contention that
the
‘invention’ was invalid for being obvious. I am,
therefore, not persuaded that it was obvious. It follows that the
appeal against the dismissal of the appellant’s action in
respect of the infringement of the patent should be upheld.
THE DESIGN
[29]
The appellant is the registered proprietor of design A97/1155 (the
registered design) which is registered in terms of
s 15
of the
Designs Act 195 of 1993
as an aesthetic design in class 20 being the
class ‘sales and advertising equipment’. An aesthetic
design ‘means
any design applied to any article, whether for
the pattern or the shape or the configuration or the ornamentation
thereof, or for
any two or more of those purposes, and by whatever
means it is applied, having features which appeal to and are judged
solely by
the eye, irrespective of the aesthetic quality thereof’.
8
In
the application for registration it is stated that the design is to
be applied to flags.
[30]
Regulation 15(1) of the Design Regulations 1999 provides that an
application for registration shall contain a definitive statement
setting out the features of the design for which protection is
claimed and that such definitive statement shall be used to interpret
the scope of the protection afforded by the design registration. The
definitive statement contained in the application for registration
of
the design reads as follows:
‘
The novelty of the design as applied to a
flag, banner or the like lies in the shape and/or configuration
thereof, substantially as
shown in the accompanying drawing.’
The drawing is depicted below.
[31] The application for registration of the design also
contained an explanatory statement. Such a statement may in terms of
regulation
15(4) be used to assist in interpreting the scope of the
protection afforded by the design registration. The explanatory
statement
reads:
‘
A flag or banner is shaped substantially
like an inverted teardrop 10 and is adapted to be engaged by a
flexible pole 12.’
[32]
The effect of the registration of a design is to grant to the
registered proprietor the right to exclude other persons from the
making or disposing of any article included in the class in which the
design is registered and embodying the registered design or
a design
not substantially different from the registered design.
9
The
court a quo held that the respondent’s flag is not
substantially different from the appellant’s flag. The
correctness
of this finding was not placed in issue before us.
[33]
Like the
Patents Act the
Designs Act provides
that in any proceedings
for infringement the defendant may by way of defence rely on any
ground on which the registration may be
revoked.
10
In
terms of
s 31(1)(c)
any person may apply to court for the revocation
of the registration of a design on the ground that the design is not
registrable
under
s 14.
An aesthetic design is registrable under
s 14
if it is new and original.
[34]
The respondent pleaded that the registered design was not new as it
formed part of the state of the art immediately before the
date of
application for registration. The court a quo upheld this defence and
the only issue before us is whether it was correct
in doing so.
[35]
It was submitted by the respondent that the registered design was not
new in the light of the sail flag depicted on the first
page of the
Rehbein patent specification, drawings of Norman shields and of kites
depicted in certain publications, drawings illustrating
‘the
Calvo patent’ being a patent relating to a ceiling fan and
drawings illustrating ‘the Lundell patent’
being a patent
relating to a rotary fan.
[36]
A design is deemed to be new ‘if it is different from or if it
does not form part of the state of the art immediately before
the
date of application for registration thereof . . ..’
11
As
to what comprises the state of the art,
s 14(3)
provides:
‘
14(3) The state of the art shall comprise-
all matter which has been made available to the public (whether in
the Republic or elsewhere) by written description, by use or
in any
other way; and
all matter contained in an application –
for the registration of a design in the Republic; or
in a convention country for the registration of a design which has
subsequently been registered in the Republic in accordance with
the
provisions of
section 44
,
of which the date of application in the Republic or convention
country, as the case may be, is earlier than the date of application
or the release date contemplated in subsection (2).’
[37]
The court a quo held that the sail flag illustrated in the Rehbein
patent is not substantially different from the appellant’s
design and that it ‘therefore destroys its novelty’. The
drawing of the Rehbein patent is a drawing of a sail flag in
the
shape of a semi-circle but viewed from an angle which distorts its
actual shape. It is a representation of a flag of which the
design
differs completely from the registered design. The registered design
has therefore not been anticipated by the design of the
flag
illustrated in the Rehbein patent. Having found that the Rehbein
patent anticipated the registered design the court a quo did
not
consider it necessary to deal with the other items relied upon by the
respondent.
[38]
The design of the blades illustrated in the Calvo and Lundell patents
differ substantially from the registered design and do
not warrant
further consideration. It remains to deal with the Norman shields and
the kites.
[39]
In terms of the definitive statement the novelty of the design as
applied to a flag, banner or the like lies in the shape and/or
configuration thereof. The shape of an article is the external form
or the three-dimensional appearance thereof.
12
The
respondent attempted to prove that the design was not new by
comparing it to two-dimensional representations of the design of
shields and kites from which it is not possible to make out their
form or their three-dimensional appearance. The fact that a
two-dimensional
representation of the shape of an article is similar
to a two-dimensional representation of the registered design does not
prove
that the design of the article anticipated the registered
design. The question is whether the shape of the registered design ie
the
three-dimensional form thereof differs from the three-dimensional
form of the article the design of which is claimed to have
anticipated
the registered design. That question was not addressed by
the respondent. The respondent therefore failed to prove that the
registered
design had been anticipated.
[40]
It follows that the appeal against the dismissal of the appellant’s
action in respect of the design should also be upheld.
The parties
are agreed as to the terms of the order that should in these
circumstances have been made by the court a quo.
[41]
The following order is made in respect of Patent No 97/10535, case
no: 99/3281:
The appeal is upheld with costs, including the cost of
two counsel and the order of the court a quo is altered to read as
follows:
1.
An interdict restraining the first defendant from infringing patent
97/10535 is granted.
2. An order is made directing the first defendant to
deliver up to the plaintiff any flying banners infringing patent
97/10535 and
any article or product of which an infringing banner
forms an inseparable part.
3.
An order is made for an enquiry to be conducted into the damages
suffered by the plaintiff as a result of the infringement of patent
97/10535 and/or for the determination of a reasonable royalty and
payment of the amount found to be due to the plaintiff.
4. An order is made that in the event of the parties
being unable to reach agreement as to the further pleadings to be
delivered or
as to discovery, inspection or other matters of
procedure relating to the enquiry, any party may make application to
the Court for
directions in regard thereto.
5. In terms of
section 74
of the
Patents Act 57 of 1978
it is hereby certified that the validity of all the claims of patent
97/10535 were in issue in the proceedings and that the Court
found
the claims to be valid.
6. An order is made that the costs of the action be paid
by the defendants.
[42]
The following order is made in respect of TPD case no 7385/04:
The appeal is upheld with costs, including the costs of
two counsel and the order of the court a quo is altered to read as
follows:
1.
An interdict restraining the first defendant from infringing design
registration A97/1155 is granted.
2. An order is made directing the first defendant to
deliver up to the plaintiff any flying banners infringing design
registration
A97/1155 and any article or product of which an
infringing banner forms an inseparable part.
3. An order is made for an enquiry to be conducted into
the damages suffered by the plaintiff as a result of the infringement
of design
registration A97/1155 by the first defendant and/or for the
determination of a reasonable royalty and payment of the amount found
to be due to the plaintiff.
4. An order is made that in the event of the parties
being unable to reach agreement as to the further pleadings to be
delivered,
or as to discovery, inspection or other matters of
procedure relating to the enquiry, any party may make application to
the Court
for directions in regard thereto.
5. In terms of
section 41(1)
of the
Designs Act 195 of
1993
it is hereby certified that the validity of design A97/1155 was
placed in issue in the proceedings and that the Court found the
registration
of the design to be valid.
6. An order is made that the costs of the action be paid
by the first defendant.
__________________
P E STREICHER
JUDGE OF APPEAL
CONCUR
:
FARLAM JA)
NUGENT JA)
CLOETE JA)
PONNAN JA)
1
Stauffer
Chemical Co and Another v Safsan Marketing and Distribution Co (Pty)
Ltd and Others
1987 (2) SA 331
(A) at
347A-D
2
See
Aktiebolaget Hässle and Another v
Triomed (Pty) Ltd
2003 (1) SA 155
(SCA) at 159F-H and the cases there referred to.
3
Netlon
Ltd and Another v Pacnet (Pty) Ltd
1977
(3) SA 840
(A) at 857G-H.
4
See
Codex Corporation v Racal-Milgo Ltd
[1983] RPC 369
at 382 where May LJ equated a
purposive construction with a realistic construction.
5
In
terms of
s 65(4)
a defendant in proceedings for infringement may by
way of defence rely upon any ground on which a patent may be revoked
and in
terms of
s 61(1)(c)
a patent may be revoked if the invention
concerned is not patentable under
s 25.
Section 25
provides that a
patent may subject to the provisions of the section be granted for
any new invention which involves an inventive
step and which is
capable of being used or applied in trade or industry or
agriculture.
6
Section
25(6).
7
">
7
Netlon
Ltd and Another v Pacnet (Pty) Ltd
1977
(3) SA 840
(A) at 861H-862B.
8
Section
1(1).
9
">
9
Section
20(1)
of the
Designs Act 195 of 1993
.
10
Section
35(5).
11
Section
14(2).
12
">
12
See
Burrell’s South African Patent
and Design Law
3 ed para 9.23; Laddie,
Prescott and Vitoria
The Modern Law of
Copyright and Designs
2 ed vol 1 para
30.6; Fox
Canadian law of Copyright and
Industrial Designs
3 ed p807 and
Christine Fellner
Industrial Design Law
(1995) para 2.007.