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1985
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[1985] ZASCA 66
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Raubenheimer and Another v Kreepy Krauly (Pty) Ltd. (409/83) [1985] ZASCA 66 (30 August 1985)
409/83/AV/
JOHANN NICOLAAS RAUBENHEIMER
First Appellant
PEACOCK INVESTMENTS (PROPRIETARY
)
LIMITED
Second Appellant
AND
KREEPY KRAULY (PROPRIETARY) LIMITED
First Respondent
PERMKLEENPOOL
(PR
OPRIETAR
Y) LIMITED
Second Respondent
409/83/AV
IN THE SUPREME COURT O
P SOUTH AFRICA
(
APPELLATE DIVISION
)
In the matter between:
JOHANN NICOLAAS RAUBENHEIMER
First
Appellant
PEACOCK INVESTMENTS (PROPRIETARY
)
LIMITED
Second
Appellant
AND
KREEPY KRAULY (PROPRIETARY) LIMITED
First
Respondent
PERMKLEENPOOL (PROPRIETARY) LIMITED
Second Respondent
CORAM
: CORBETT, TRENGOVE, HOEXTER, VAN HEERDEN, JJA et NICHOLAS,
AJA
HEARD
: 15 and 16 August 1985
DELIVERED
: 30 August 1985
JUDGMENT NICHOLAS, AJA
This appeal has to do with a swimming pool
cleaning
2
cleaning device which is marketed under the name of Kreepy Krauly, and
which was the subject of an action in the Court of the Commissioner
of Patents.
Alleging that the manufacture and sale of the Kreepy Krauly infringed SA Patent
No71/0231, dated 14 January 1971, the
plaintiffs (described respectively as the
registered patentee and the exclusive licensee under the patent) claimed an
interdict and
other relief as against the defendants (being respectively the
manufacturer and a seller of Kreepy Krauly cleaning devices). The
Commissioner
of Patents (VAN REENEN J ) held that the patent had not been infringed and
granted judgment for the defendants with
costs and made a declaration as to
non-infringement.
An
3
An appeal to the Transvaal Provincial Division (MARGO,
PREISS and GROSSKOPP JJ) was dismissed with costs. The matter now comes on
appeal to this Court, leave having been granted by the Court a quo.
In this
judgment I shall refer to the parties as they were in the trial Court, namely,
to the appellants as the plaintiffs, and to
the respondents as the
defendants.
In terms of the specification, the invention provides a cleaning device for
cleaning surfaces covered by a liquid, especially underwater
surfaces, e.g. the
floor and sides of swimming pools, boats' hulls, and harbour or lock walls. In
its basic form the device comprises
a cleaning head adapted to fit against a
surface to be cleaned, an inlet into the head, an outlet
from the head permitting suction to be applied through
a
4
a flexible suction pipe to the head and automatic means
for enabling the suction periodically to be cut off and re-applied, whereby
when
suction is applied the liquid can pass along the flexible suction pipe with the
head in suction contact with the surface to
be cleaned and, when suction is cut
off, the liquid in the pipe will cause the pipe to flex and so move the head
along the surface
before suction is re-applied. (The specification states that
there may be a plurality of adjacent heads in the form of a cluster.
The
possibility of multiple heads is of no importance in the present case, and it
will not again be referred to.)
The specification then gives some description of
two
5
two of the constituent parts of the invented
device.
The
cleaning head
may be of any desired shape, for example,
substantially triangular, rectangular or circular in plan view. Conveniently the
head has
sides which can make substantially suction-tight contact with the
surface to be cleaned - the contacting parts may have a flexible
rim of, for
example, a rubber or plastic material. The liquid covering the surface to be
cleaned (usually water) must be able to
pass through the cleaning head (to
facilitate which the rim may be cut away in places to provide passages for a
current of the liquid
to flow in the head and over the surfaces to be cleaned)
and down the suction pipe.
The
6 The
means for automatically enabling the suct
ion to
be
cut off and re-applied
may conveniently be mounted on the head. That means
"may comprise a gate which automatically opens and closes the vacuum line to
inlet into the head according to a regular or irregular pattern. Thus a chamber
may be provided having an inlet to the head, an outlet
to the flexible pipe
which itself leads to the suction source and a gate for closing the suction
inlet and/or outlet of the chamber,
the gate being adapted to be opened and/or
closed by liquid which is sucked through the chamber".
After a description of a number of other embodiments of the invention, the
specification describes the device
in
7 in operation:
"A flexible hose leads from the suction chamber of the above embodiments to
the suction source. When in use for cleaning a swimming
pool, the hose becomes
filled with water and the continuous opening and closing of
the gate causes the hose to jerk.
As the suction against the surface(sc. to be cleaned) is momentarily released
each time the gate closes, the jerks of the hose cause
the head to move over the
surface to be cleaned. The movement may be completely random, may be guided or
may be between these two
extremes. The head appears to 'walk' along the surface
to be cleaned. It can be left unattended."
The Kreepy Krauly is itself the subject of a
patent - SA Patent No 75/1166
dated February 1975.
The nature and scope of the invention claimed in
that
specification
8 specification were considered by this Court in
Selero
(Pty) Ltd and Another v Chauvier and Another
1984(1) SA 128(A).
A full
description of: the allegedly infringing device is contained in the judment of
MARGO J in the Court a
quo
:
"The Kreepy Krauly consists of a suction head, through the mouth of which
water, and deposits of solid matter on the floor and walls
of swimming pools,
are sucked up. The suction force comes from the swimming pool pump, which is
connected to the Kreepy Krauly by
a length of flexible hose. The mouth is
surrounded by a circular rubber suction seal. The water is drawn through the
mouth into the
head, above which there are two parallel and separate suction
passages, which converge into one pipe at the top of the device, a
short
distance below the point at which it (the device) is coupled to the flexible
hose. In the head, below the suction passages,
a pyramid shaped plastic object
is located in what is called a valve chamber. This object is termed a flapper
valve or a hammer.
In operation the flapper valve moves from one side of the
valve chamber to the other some seven times per second i.e. it traverses
a
complete
cycle
9
cycle (or Hertz) of movement about 3,5 times per second. While the valve is
in the central position and is still passing from one
side to the other, both
suction passages are open. However, when the flapper valve is completely over to
the left side, it fits into
a valve seat below the suction passage on that side
and so blocks the entry of the water into that passage. The water from the head
is thus channelled up the other suction passage, on the right side, into the
converging chamber and so on through the flexible hose
to the pump. The stream
of water up the right suction passage then generates a venturi effect, and this,
together with the weight
of the water in the left suction passage, causes the
flapper valve to move over to the right side, where it fits into a similar valve
seat located below the right suction passage and now blocks the entry of water
into the passage. The water from the head is now channelled
up the suction
passage on the
left
10
left side into the converging chamber and so on through the flexible hose to
the pump. The to and fro movement of the flapper valve,
transferring the stream
from the one suction passage into the other, and
vice versa
, continues
while the device is in operation. The importance of this transfer of the stream
is that, each time one of the suction
passages is closed off, the behaviour of
the water results in a jolt which causes the head to move a short distance over
the surface
it is cleaning. In this way the Kreepy Krauly "walks' over that
surface in random fashion, cleaning as it goes. If left in operation
long enough
it traverses the whole of the pool area. It will even travel over rounded joints
between the bottom and the walls and
climb the walls until a balance weight
topples over and causes it to move downwards. A point of considerable importance
is that the
flow path from
the
11 the mouth via the valve chamber, through both or one of the suction
passages into the converging chamber, and thence to the flexible
pipe and the
pump, is always open."
From this description it is apparent that the Kreepy Krauly achieves the same
result as the patented device. The evidence shows moreover
that the fundamental
hydraulic operation which enables the Kreepy Krauly to move over the surface to
be cleaned is the same as that
in the patented device, namely, the intermittent
substantial variation of the flow of water through the machine.
Such similarities have, of course, no bearing on the issue of infringement.
As DIPLOCK LJ observed in
Rodi and Wienenberger A.G. v. Henry,Showell Ltd
1966 RFC
441
12
441 (CA) at 467:
"In construing a modern specification, to speak of looking for the
'sub-tance' or the 'pith and marrow' of the invention, may lead
one erroneously
to suppose that the patentee, whatever be the precise language in which he has
framed his claim, is entitled to a
monopoly of the mechanical or other principle
of which his invention makes use or of the result which his invention achieves.
This
is not so. If the language which the patentee has used in the claims which
follow the description upon its true construction 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 he obtains is for that
specified combination of elements or integers so acting in relation to one
another - and
for nothing else.
There
13
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 matter claimed."
See also
Frank and Hi
r
sch
(Pty) Ltd v Rodi and Wienen
-
berger
1960(3) SA 747(A) at 762;
Letraset Ltd v Helios
Ltd
1972(3) SA 245(A) at 274.
The
specification in suit contains seventeen claims, of which claims 1, 2 and 3 were
alleged to have been infringed by the Kreepy
Krauly.
Split into appropriate integers (and modified so
as to exclude
references to multiple cleaning heads), claim 1 reads as follows:
"(a)
14
"(a) a cleaning device for cleaning
a surface beneath the level of a liquid,
(b) which device comprises at least
one cleaning head;
(c) adapted to fit against the sur
face to be cleaned,
(d)
an inlet into the head,
(e)
an outlet from the .... head,
(f)
for permitting suction to be applied
through a flexible suction pipe to said head,
and
(g) automatic means for enabling the
suction
periodically to be cut
off and reapplied
(h) whereby when suction is applied the liquid can pass along the flexible
suction pipe with the head in suction contact with the
surface and
(i) when suction is cut off, liquid in the pipe will cause the pipe to flex
and so move the head along the surface before suction
is reapplied."
The
15
The parties were agreed that it is unnecessary to examine
claims 2 and 3 which are dependent on claim 1.
It has been common cause in all three courts that integers (a), (b), (c), (d)
and (h) of claim 1 are present in the Kreepy Krauly.
In regard to integers (e)
and (f), there is an issue between the parties as to the interpretation to be
placed on the word "head",
but it was not one which received the consideration
of either the trial Court or the Court a
quo
, and it was only touched on
in argument in this Court. The real dispute is in regard to the presence in the
Kreepy Krauly of integers
(g) and (i), which, it is common cause, are essential
integers.
VAN
16
VAN REENEN J held that the Kreepy Krauly did
exhibit integer (g), saying
that in the operation of the
device "there is a periodic cut-off and
re-application of
suction". He held however that integer (i) was not
present.
In the judgment of the Court a quo, MARGO J disagreed with
VAN REENEN J in
regard to integer (g), finding
"that the evidence showed that there was in the Kreepy Krauly no automatic
means for enabling the suction to be cut off or re-applied."
but agreed that the plaintiffs had failed to establish
that integer (i)
was present in the Kreepy Krauly.
In the view which I take of the matter, it is necessary to consider only
integer (g).
In order to determine whether that integer is
present
17
present in the Kreepy Krauly it is necessary first to
interpret the expressions "suction", "cut off" and
"automatic means" as they are used in claim 1.
"Suction" is not a technical term requiring
definition or explanation by the evidence of experts.
Indeed, its use is eschewed by the writers of hydraulics
textbooks and professors of hydraulic engineering.
The definitions of the word "suction" in standard dic-
tionaries are substantially the same. They include:
Shorter Oxford English Dictionary
"sucking; production of more or less complete vacuum with the result that
external atmospheric pressure forces fluid into the vacant
space or causes the
adhesion of surfaces."
Concise
18
Concise Oxford Dictionary
"sucking; the production of a partial vacuum by removal of air etc. for
purpose of enabling external atmospheric pressure to force
liquid or produce
adhesion of surfaces. "
Webster's Third International Dictionary
,
"2 a. The act or process of exerting a force upon a solid liquid or gaseous
body by reducing air pressure over part of its surface;
the force so exerted
."
The American Heritage Dictionary of the English Language
"2. A force that causes a liquid or solid to be drawn into an interior space
or to adhere to a surface because of the difference between
the
external
19 external and internal pressures." The
Shorter Oxford
refers to the result, and the
Concise Oxford
to the purpose, of the
production of a vacuum. In my view the latter is to be preferred. All the
definitions have in common the exertion
of a force as a result of a difference
in pressure.
The dictionary meaning is the sense in which the
word
"suction" is used in claim 1 and throughout the spe
cification. Thus, in the
body of the specification
there are references to the
vacuum
being cut
off and re
applied and to the "
vacuum line
"; and to the
momentary
release of the suction head against the surface to be
cleaned a
reference to the adhesion of surfaces re
sulting
20
suiting from suction. Professors Stephenson and
Smoleniec, expert
witnesses who gave evidence on behalf
of the plaintiffs, were of the view
that "suction" as
used in the specification was interchangeable with
"flow".
In their first expert summary they recorded that they had
been
instructed to consider whether or not the
suction
in
the Kreepy Krauly
device is in fact cut off as specified
under integers (g) and (i); that they
carried out tests
whose object was to measure the rate of flow from the
head
of the apparatus into the hose leading to the pump; that
they
concluded that it was apparent from the tests that
"complete cut off of the
flow
occurred in the suction pipe
of the Kreepy Krauly device." In an
additional expert sum
mary
21 mary they expressed the opinion that "the
flow, or suction, into the Kreepy Krauly device is cut off and reapplied at
regular intervals."
This was the position which they sought to maintain when
giving evidence.
This position was untenable. While the word "flow" does have some ideas
involved in its meaning in common with "suction", the words
are not
interchangeable.
Suction may be evidenced by flow, and an absence of flow could be a
manifestation of an absence of suction, but it does not necessarily
follow that
where there is no flow, or even a reversal of flow, there is no suction. To take
an everyday example: when suction is
applied by the mouth to a drinking straw in
a liquid, the degree
of
22 of difference between the pressure inside the tube and the
atmospheric pressure will determine how far the liquid will move up
the straw.
The liquid will move up or down the straw depending on the variations in the
differential pressure, and its flow may reverse
even though there is still some
suction.
That the words are not interchangeable is evident
from the specification.
See, for example,
the statement in claim 1: "when
suction
is
applied
the liquid can pass (i.e.
flow
) along the flexible suc
tion
pipe". It would be entirely inappropriate
to speak of flow being applied and
re-applied. And
flow can have no part in suction which produces the
ad
hesion
23 hesion of surfaces - see the references in the body of the
specifications to "the head has sides which can make substantially suction-tight
contact with the surface to be cleaned" and "as the suction against the surface
is momentarily released each time the gate closes,
the jerks of the hose cause
the head to move over the surface to be cleaned."
The ordinary meaning of
"cut off" if a context such as the present is "interrupt" or "stop" (as in
cutting off communication, or a
passage, or a line of retreat). In order to "cut
off suction", there must be an interruption of the suction line between the
mouth
of the head and
the
24
the suction source (the swimming pool pump), on
either the inlet or the outlet side.
As to the expression "aut
omatic means
for enabling the suction to be cut off and re-applied
", MARGO J considered
that it indicated
"the presence of some apparatus or component which, by automatic action,
effects closure of the line of communication from the source
of the suction to
the point at which it is applied. That, in my view, is the plain meaning of the
words".
I agree. "Automatic means" is one of the constituent
parts, elements or components of the claimed device, which
is said to comprise (a) a cleaning head, (b) an inlet into
the head, (c) an outlet from the head permitting suction
to
25
to be applied through a flexible suction pipe to the
head, and (d) automatic means for enabling the suction periodically to be cut
off and re-applied. The word "means" signifies a way to an end, and the word
"for" has in this context the meaning of "with an aim
or a view to". The
expression accordingly denotes an automatic device, contrivance or instrument,
which is a constituent element
of the claimed apparatus, and the designed
function of which is to enable the suction periodically to be cut off and
re-applied,
that is, periodically to make and break the suction line between the
opening in the head and the suction source.
The plaintiffs sought to prove the. presence of
integer
26
integer (g) in the Kreepy Krauly by the evidence
of ' Professor Stephenson and Professor Smoleniec. As indicated above, their
evidence
related largely to the tests and experiments which they conducted, and
which they claimed to show that in the operation of the Kreepy
Krauly the flow
into the device was cut off and re-applied
at regular intervals: "Complete
cut off of the flow oc-
curred in the suction pipe of the Kreepy Krauly device.
The period of cut off coincided with the oscillation of
the valve." On
behalf of the defendants, another expert,
Dr Schwartz, gave evidence of tests and experiments which
he conducted and which he claimed gave different results.
VAN REENEN J observed that
" .. all
27
"... all (the) experiments were subjected to
close scrutiny, and severely criticised by the opposite side. The criticisms
covered
every conceivable field from the inception of the experiments, the
equipment used, the methods used, the results obtained and the
interpretation of
these results. To this end I was treated to discourses on mathematical
integration, harmonic motion, Fourier analyses
and electric filters."
The debate as to what the experiments proved was continued at length in the
argument in this Court, but I do not find it necessary
to deal with the
differing contentions. VAN REENEN J found (and this was the basis of his finding
that integer (g) was present in
the Kreepy Krauly ) that
".. one
28.
"... one fact emerges clearly from all these experiments and
that is that a reversal of flow does take place in each of the tubes
...."
and I shall assume the correctness of the finding for
the purposes of this
judgment.
The evidence of the plaintiffs' experts was wide of the
mark.
They did not address themselves to the real question in the case,
namely, whether there is present in the Kreepy Krauly an automatic
means such as
is referred to in claim 1. It is clear that the Kreepy Krauly has no such means.
Counsel for the plaintiffs said in
answer to a question by the presiding judge
that the automatic means was the hammer valve. ' However, the
valve
29 valve moves from side to side, closing off first one suction
tube and then the other, so that there is no time when both tubes
are closed
off.
Moreover, the evidence of the plaintiffs' experts did not prove that
when the Kreepy Krauly was operating, the
suction
was cut off. Put at its
highest, their evidence was that there occurred intermittently a reversal of
flow
in each of the tubes, although it was not possible to ascertain
precisely at what part of the travel of the hammer valve this reversal
of flow
took place. For the reasons cogently advanced by MARGO J, a reversal of flow did
not justify an inference that suction had
been cut off:
"On
30
"On the evidence it is clear that the
suction in the Kreepy Krauly is at
no time cut off. Accepting for
present purposes the results of
the
experiments conducted by Professors
Stephenson and Smoleniec
(although
those results were questioned by Dr.
Schwartz), I find that the
inference
drawn therefrom that the suction is
cut off is a non
sequitur
. If the
experiments had shown a continuous
inflow, that
would have demonstrated
sustained suction. But the occur
rence of a
periodic outflow does not
necessarily mean that the suction has
been cut
off. On the design and
function of the Kreepy Krauly it is
clear that the
suction force is main
tained throughout along an open line
of
communication from the swimming
pool pump to the mouth of the
device,
although there is a periodic trans
fer of the stream from one
suction
passage to the other. Mr.
Bowman
,
for the appellants,
conceded that much,
but relied on the reverse flow pat
tern
31
tern as showing that the suction was cut off. Granted that the pump at all
times remains in suction communication with the mouth and
that the pump
continues to suck with the same force, the fact (if it be such) of a periodic
reverse flow is to be accounted for by
something other than a cutting off of the
suction. The occurrence of a reverse flow would then indicate merely that the
force of
the suction, periodically for 1/100th of a second every l/7th of a
second, is inadequate to cope with the increased load caused by
the sudden
transfer of the upward stream from the one suction passage to the other."
The conclusion is that integer (g) was not present
in the Kreepy Krauly,
and that there was therefore no
infringement of the patent.
The
32 The appeal is dismissed with costs
including the costs of two counsel.
CORBETT, JA )
TRENGOVE, JA )
) CONCUR HOEXTER,JA )
VAN HEERDEN, JA)