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[1985] ZASCA 132
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Johnson and Johnson (Pty) Ltd. v Kimberly-Clark Corporation and Another (86/84/av) [1985] ZASCA 132 (27 November 1985)
86/84
JOHNSON AND JOHNSON (PROPRIETARY) LIMITED
AND
KIMBERLY-CLARK CORPORATION
AND
KIMBERLY-CLARK OF SOUTH AFRICA (PROPRIETARY) LIMITED
86/84/AV
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
In the matter between:
JOHNSON AND JOHNSON (PROPRIETARY) LIMITED
Appellant
AND
KIMBERLY-CLARK CORPORATION
First
Respondent
AND
KIMBERLY-CLARK OF SOUTH AFRICA
(PROPRIETARY) LIMITED
Second Respondent
CORAM
: CORBETT, HOEXTER, HEFER, JJA, GALGUT et NICHOLAS, AJJA
HEARD
: 4 November 1985
DELIVERED
: 27 November 1985
JUDGMENT NICHOLAS, AJA
KIMBERLY
2 KIMBERLY-CLARK CORPORATION ("KIMBERLY-CLARK"), a company
incorporated in the United States of America, is the owner of S A Patent
No
77/1894. This relates to an invention entitled "Disposable diaper with
elastically constricted crotch section". The patent was
granted under the
Patents Act
, 37 of 1952, as a convention application with an effective
date of 29 March 1976, being the date of the first application for protection
in
respect thereof in the United States of America.
With KIMBERLY-CLARK OF SOUTH
AFRICA (PROPRIETARY) LIMITED (the South African licensee under the patent) as
co-plaintiff, KIMBERLY-CLARK
instituted an action in the Court of the
Commissioner of Patents against
JOHNSON
3 JOHNSON AND JOHNSON (PROPRIETARY) LIMITED ("J & J"), alleging that J
& J had infringed the plaintiffs' rights under the
patent, and claiming an
interdict and other relief.
J & J denied infringement in its plea and set
up a counterclaim alleging that the patent was invalid and claiming an order of
revocation.
The action was heard by O'DONOVAN J sitting as Commissioner of
Patents. He held that the patent had been infringed, and that invalidity
had not
been proved. He accordingly granted an interdict and other relief, and dismissed
J & J's counterclaim.
An appeal to the Transvaal Provincial Division was
dismissed.
J & J
4 J & J now appeals to this Court under s. 76 of the
Patents
Act
,.57 of 1978.
The specification of Patent No 77/1894 recites that
"Disposable diapers are generally
well known in the art and are becoming increasingly acceptable in the
marketplace as a sanitary protection item, especially for use
in infant and
child care to absorb urine and fecal discharges. Unitary, pre-shaped or
prefolded diapers which are generally comprised
of a porous facing layer, a
fluid impervious backing sheet and a highly absorbent batt sandwiched
therebetween, which require no
supplementary holders or panties, and which may
be disposed of after a single use, have proved to be especially popular. Even
though
such diapers are growing in popularity,
one
5
one feature which still appears to need improvement is
obtaining a better, more satisfactory, fit. In discussing the problem of fit
with mothers it was found that, while they wanted a diaper which neatly
conformed to the child with a minimum of bulk and a maximum
of comfort, what
would really be more desirable to them than an aesthetically neat fit would be a
diaper which minimized leakage
both at the waist and at the crotch or thigh
area."
(The word "batt" is not a term of science or art. According to the relevant
definition in the Shorter Oxford Dictionary -(s.v.
bat
, an alternative
spelling)- it is "9 A sheet of cotton wadding for quilts: batting", and
batting
is defined as "2. cotton fibre prepared in sheets for quilts
etc.") The specification states that the absorbent batt may be-
" ... an
6
".... an airformed pad of wood pulp fibres known in the art as
fluff. Other absorbent materials, alone or in combination and including
webs of
carded or airlaid textile fibres, multiple plies of creped cellulose wadding,
various super absorbent materials, synthetic
foam sheets or the like may also be
used."
The specification goes on to deal with prior
attempts to improve the fit
of disposable diapers and
to reduce bulk between the legs, which attempts had
not provided
an adequate solution. It then sets out a general
description
of the invention:
"This invention is directed to an improved disposable diaper, in which the
absorbent batt in the crotch area is of decreased width
as compared to the waist
to provide less bulk in the
transverse
7
transverse direction. The diaper is elasticized only along the
edges in the narrowed crotch area in a manner to give a more conformable
leg fit
as well as improved functional absorbent capacity. Attaching the elastic
immediately adjacent to the batt edges and also
bonding the batt surface to the
backing or facing in that area to unitize the structure forces the batt to
contract as the elastic
contracts thereby longitudinally condensing the batt and
producing gross transverse rugosities in the crotch area whereby an increase
in
the effective absorbent capacity of the batt in that area is also obtained.
Limiting the elasticized edges to the narrowed crotch
area foreshortens and
provides transverse rugosities in the diaper batt only in the crotch area while
minimizing the development
of gaps at the waist."
(The Shorter Oxford Dictionary defines
rugosity
as
"1.
8
"1. The state of being rugose or wrinkled. 2. with a
and pl. A corrugation or wrinkle "
The entry relating to
rugose
reads: "-L.
rugosus
,
f.
ruga
wrinkle; Marked by
rugae
or wrinkles: wrinkled, corrugated, ridgy".)
After giving a summary of the
invention and a description of the drawings and preferred embodiments, the
specification concludes with
15 claims. Claims 2 to 12 are all dependent on
claim 1 which reads:
"1
A disposable, unitary and generally elongate
diaper having a substantially planar waistband section at each end and a
narrow
9
narrow substantially non-planar crotch section disposed between
said ends, said diaper comprising a porous facing sheet, a fluid-impervious
backing sheet and an absorbent batt disposed between said sheets and secured to
at least one of the said sheets in the crotch section,
said narrow crotch
section being longitudinally constricted by elastically extendible means, one of
said means being secured adjacent
each edge of said crotch section in a manner
which produces a plurality of gross transverse ru-
gosities which extend across the width of the crotch section and which adjoin
each other along the length of said crotch section to
provide the non-planar
crotch section."
Claims 13,14 and 15 are independent claims.
In their particulars of claim the plaintiffs
alleged
inter alia
:
"8
10
"8. The defendant has, from a date presently unknown to the plaintiffs, made,
disposed of and/or offered to dispose of diapers in
the Republic of South Africa
under the mark 'Panty Nappy' which acts infringe the plaintiffs' rights under
Patent No. 77/1894.
9. In order to prove infringement of the patent, the plaintiffs will rely on
the sale by OK Bazaars (1929) Limited of Pritchard Street,
Johannesburg, to
Thomas Scott of two packs, each containing different sizes of the 'Panty Nappy',
being product of the defendant.
10. A sample of each of the 'Panty Nappy' diapers taken from each of the
packs aforesaid is annexed hereto marked 'TSl' and 'TS2'.
11. The diapers annexed hereto marked
'TSl'
11
'TSl' and 'TS2' fall within the claims of Patent No.
77/1894."
J & J admitted in its plea that it makes, disposes of and offers to
dispose of diapers in the Republic of South Africa under the
mark "Panty Nappy",
but denied that its acts infringed plaintiffs' rights under the patent.
At
the pre-trial conference J & J admitted that Annexures "TS1" and "TS2" to
the plaintiffs' particulars of claim were examples
of the "Panty Nappy" diapers
produced and marketed by the defendant.
Invalidity has ceased to be an issue
in the appeal.:.. The only matter for consideration by this Court is whether
O'DONOVAN J was
correct in deciding that claims in the specification had been
infringed.
The
12 The determination of the question of infringe-ment
involves a two-stage inquiry: firstly, the claims must be properly construed,
including the ascertainment of the essential integers; then the infringing
article or process must be considered - to constitute
infringement the article
or process must take each and every one of the essential integers of at least
one of the claims. If it does
not, there is no infringement. See
Rodi &
Wienenberger A G v Henry Showell Ltd
1969 RPC 367
(H.L,).
So far as
interpretation is concerned, there are not in claim 1 any technical terms
requiring expla-nation by an expert witness. Although
some of the words used may
not be generally familiar - like "elongate"
(long
13 (long, slender, tapering), "batt" and "rugosities" -all of them are
ordinary words which are to be found in standard English dictionaries.
The only expression in regard to which there was any debate in this Court was
"substantially planar". It was conceded by counsel for
J & J that "planar",
qualified as it is by the word "substantially", and used , with reference to the
waistband section of a
disposable diaper, "is not to be understood in claim 1 in
its geometric sense of absolute flatness". The expression
means
"substantially flat or level".
It is clear that the words "planar" and "non-
planar
14 planar" as
used in -the expressions "
substantially planar
waistband section at each
end" and the "
substantially non
-
planar
crotch section disposed
between said ends" are used relatively to each other: they involve a contrast
between the "planarity", if
one may coin the word, of the waistband section at
each end of the diaper, and the "non-planarity" of the crotch section disposed
between them. In the words of claim 1, the latter section is "longitudinally
constricted by elastically extendible means"; the waistband
sections are not so
constricted. As pointed out in the body of the specification, they "remain
substantially flat or planar because
of the absence of a tensioned elastic
member in those sections".
It
15
It was submitted on behalf of J & J that
one is not "entitled to amend the claim with reference
to a stray phrase in the body of the specification".
The answer is that
the matter is not one of amendment,
but of interpretation, and where, as is
the case with
expressions such as "substantially planar" and "substantial-
ly non-planar", expressions in a claim are susceptible of some flexibility in
their ordinary connotation, they should
be interpreted so as to conform with
and not to be inconsistent with or repugnant to the rest of the specification.
(see
Gentiruco A.G. v Firestone SA (Pty) Ltd
1972 (1) SA 589(A)
at 615
B).
So interpreted it is clear that "substantially
planar
16 planar" means substantially flat as compared with the substantially
non-planar crotch area.
In the second stage of the enquiry, an opinion must
be formed on the basis of a comparison of the allegedly infringing article or
process with the words of the claim as properly interpreted. The role of the
expert witness in this regard falls to be considered.
Although patent cases
provide a field in which the expert witness flourishes - a patent action without
an expert witness would to-day
be almost inconceivable -there is, in regard to
admissibility of evidence, no distinction between a patent action and any other
action.
The
17
The general rule of the law of evidence is that
opinion
evidence is inadmissible. But there are ex-
captions. It is stated in
Phipson on Evidence
13th
edition, p. 556, that
"At common law .... the opinions of skilled witnesses are admissible wherever
the subject is one upon which competency to form an
opinion can only be acquired
by a course of special study or experience."
(The corresponding sentence in an earlier edition of
Phipson
was cited
as authoritative in
R v Smit
1952(3) SA 447(A) at 451.) Where the expert
witness is no better qualified in the particular area to draw inferences than
the judicial
officer, his evidence is inadmissible.
In
18
In
R v Turner
(1975) QB 834(CA)
LAWTON LJ observed
at
841 that
"An expert's opinion is admis
sible to furnish the Court
with
scientific information which is
likely to be outside the
ex
perience and knowledge of a judge
or jury. If on the proven
facts
the judge or jury can form their
own conclusion without
help,
then the opinion of an expert
is unnecessary "
(This was cited with approval by LORD WILBERFORCE in
Director of Public
Prosecutions v Jordan
(1977) AC 699
at 718.) Compare PAGAN JA's reference
to
Wigmore
in
R v Vilbro & Another
1957(3) SA 223(A) at 228
D-E:
"
Wigmore
deals at length with what he calls the 'opinion rule' in vol.
VII, secs. 1917-2028 (3rd ed.). He says of it in sec. 1918: 'it simply
endeavours to save time and avoid confusing testimony by
telling ..
19
telling the witness: "The tribunal is on this subject in
possession of the same materials as yourself; thus, as you can add nothing
to
our materials for judgment, your further testimony is unnecessary, and merely
cumbers the proceedings." It is this living principle
which is (or ought to be)
applied in each instance; nothing more definite than this is the test involved
by the principle. (Vol.
VII. p.11.)"
In
R v Smit
(
supra
) PAGAN JA said with
reference to
Phipson's
statement:
"In so 'n geval dus is die
mening-
van die deskundige in sigself
getuienis; die hof mag horn glo of nie glo nie, mag sy mening aanvaar of verwerp
(b.v. uit hoofde van
sy kwalifikasies of die gebrek daaraan, weens die manier
waarop hy sy getuienis aflê, weens bevestiging of ontkenning daarvan
deur
ander deskundiges); maar sy
posisie ...
20
posisie is tog anders as die van 'n gewone getuie wat slegs
feite vermeld, of van iemand soos 'n handskrif des-kundige wat aan die
hof
leiding gee in die waarneming van feite waarvan die hof self in staat is om
gevolg-trekkings te maak."
(The emphasis is in the original.)
As indicated by the learned judge of appeal,
there
are cases (such as the case of disputed handwriting
which he mentioned) where
the Court can itself form an
opinion, but may be assisted by instruction or
guidance
from an expert witness. In such cases the evidence of
the expert
is admissible because "it could be of great
assistance" to the Court in
reaching its own opinion.
See
Coopers (SA) Ltd v Deutsche Gesellschaft fur
Schad
-
lingsbekämpfung MBH
1976 SA 352(A)
at 370 F-H.
The
21
The distinction between the expert as a guide
and as an opinion witness is illustrated by the remarks
of GREENBERG JA in
Annama v Chetty and Others
1946 AD
142
at 155-156 with reference to
the handwriting expert:
"His function is to point out similarities or differences in two or more
specimens of handwriting and the Court is not entitled to
accept his opinion
that these similarities or differences exist, but once it
has seen for itself the factors to which the expert draws attention, it may
accept his opinion in regard to the significance of these
factors. Thus, to take
an instance relevant to the present case, where the Court sees an absolute
identity between two signatures,
an expert's opinion as to the unlikelihood of
such an identity in two genuine signatures is an opinion by which the Court may
be
guided. If he is an honest witness
and
22
and has devoted many years to the study of handwriting then
his opinion on such a point may well be of assistance to the Court."
With the handwriting expert is to be contrasted the fingerprint expert. It
was pointed out by TINDALL JA in
R v Morela
1947(3) SA 147(A) that his
evidence is that of an expert witness. He said at 151-152:
"
Mr. Edeling
, who presented an able argument before us on behalf of
the accused, submitted that a proper comparison reveals that some of the alleged
points of similarity are not truly similar and that some of them are actually
points of difference. He also argued that a proper
comparison reveals numerous
points of difference which were not brought to the notice of, or considered by
the trial Court. It seems
to me that if this Court were to embark on that
comparison
23
comparison it would be ignoring the true nature of the question of evidence
which is involved in this aspect of the present case.
It was the evidence of an
expert witness on a subject in regard to which a person cannot be said to be
competent to judge unless
he has been through a course of highly specialised
training. It is true that in regard to some subjects, on which expert evidence
is called, the Court will act on its own opinion arrived at after considering
the expert evidence, for instance in the case of evidence
in regard to disputed
hand-writing; see
Annama v. Chetty
(1946, A.D. 142
, at pp. 154,155). But
this is not so where fingerprints are in dispute. No doubt in many cases,
particularly where the chance impression
is clear, judicial officers or jurymen
may be able, with the aid of a magnifying glass, to see and understand some of
the alleged
similarities or differences. But though this is so, such
investigators, being untrained, cannot
justifiably
24
justifiably profess to be competent in all cases to come to a
conclusion by means of their own comparisons."
More specifically in regard to patent cases,
an
expert witness cannot be heard to say whether there
has been an infringement
by the defendant. In
Seed
V Higgins
(1860) VIII HLC 550
[1860] EngR 1025
;
(11 ER
544)
LORD CAMPBELL L.C.
said at 551 that the opinion of scientific
witnesses
"that one machine is a piracy of
the other is of no consequence whatever, for that is a question not in their
province to decide."
In
Boyd v Horrocks
(1892) 9 RPC 77
(H.L.) LORD HERSCHELL
observed in the course of argument that
"The evidence of skilled workmen is much the same as that of handwriting
experts; they call attention to particular ....
25
ticular things, and then the Court has to consider them
itself."
Generally speaking, guidance is the main function of the expert witness in a
patent action. In
Parkinson v Simon
(1894) 11 RPC 493
(CA), LORD ESHER
M.R. said at 506:
"I have always thought that the value of the expert evidence in such cases as
this is, that they can point out to you things which
you yourself would not,
perhaps, without them, observe in two machines. They point out to you things
that you must consider, but
as to what their opinion is - whether they consider
that the one is an infringement of the other, or whether they consider that the
one is bad for want of novelty - I have always thought that is going beyond what
they have any right to do, and that their opinion
upon that is entirely
subservient to the view of
the
26
the tribunal which is trying the case. If you are trying a
case before a jury, the proper way to warn the jury against scientific
discussions, and scientific opinions, and the pictures which scientific men
draw, which are just their opinions and nothing else,
is to say: 'Look at them,
as far as they are of assistance to ' you to point out to you the thing which
you are to consider, and
when you have got that in your minds, just throw your
experts over and exercise your own knowledge and sense about it, and decide
the
matter for yourselves'".
The enquiry in the present case involves
a
comparison between the Panty Nappy and the words
of claim
1, and more specifically an investigation of the question
whether that
article exhibits all the essential integers
of
27 of claim 1.
Numbered for reference purposes, those integers are as follows:
1)
28
1) A disposable, unitary and generally
elongate diaper;
2) Having a substantially planar waist
band section at each end and
3) A narrow substantially non-planar
crotch section between said ends;
4) Said diaper comprising a porous facing
sheet;
5)
A
fluid—impervious backing sheet;,
6) And an absorbent batt disposed be
tween said sheets;
7) And secured to at least one of the
said sheets in the crotch section;
8) Said narrow crotch section being long
itudinally constricted by
elastically
extendible means;
9) One of the said means being secured
adjacent each edge of said
crotch
section;
10) In a manner which produces a plurality
of gross transverse
rugosities;
11) Which extend across the width of the
crotch section;
12) And which adjoin each other along the
length of the said crotch section
to
provide the non-planar crotch section.
It
29 It is common cause that-J & J's Panty Nappy
exhibits integers 1,3,4,5,6,7 and 8, and the enquiry is
accordingly limited to the remaining integers 2,9,10,
11 and 12.
Mr. Harold Frederick Donnelly was called as an expert witness
on behalf of KIMBERLY-CLARK. No evidence, expert or otherwise,was led
by J &
J.
Donnelly graduated in Chemical Engineering at the University of Toronto in
1947. He then entered the employment of KIMBERLY-CLARK
where he has since
remained. Since 1966 he has been concerned with the design and development of
diapers and their manufacture.
He said in his evidence in chief that the
addressee
30
addressee, of the specification was a person skilled in
the
art of diaper manufacturing and diaper designing. He spoke in general
terms about the development of the art of disposable diapers,
with particular
reference to prior patents, relating thereto. He was taken by counsel through
the claims said to have been infringed,
in the course of which he pointed out
the features in the Panty Nappy produced in Court which he said corresponded
with the respective
integers. He said that the Panty Nappy was a unitary diaper
(in comparison with a two-piece diaper system). It was generally elongate.
It
had a waistband section at each end. Each of these sections was "planar, level
or flat, relative to the constricted crotch
area
31
area". He pointed out the crotch area, which was
narrow
compared with the waist area of the diaper. He in
dicated the
"porous facing sheet", and "the fluid-
impervious backing sheet", which is a
liner on the outside
of the diaper made of polyethylene film. In a
Panty
Nappy of which the front sheet had been cut away, he
pointed out the
absorbent batt and showed that it was
secured to the outer liner. He pointed
out how the
narrow crotch section was longitudinally (i.e. in the
long
direction of the diaper) constricted by elastically
extendible means on both
sides of the absorbent batt.
He showed that one of the elastic means was
attached to
the outer impervious liner at its edge in the crotch sec
tion
32 tion. Dealing with integers 10,11 and 12, he said that he found (and he
pointed out to the learned Commissioner) large rugosities
across the crotch,
extending across the full width of the crotch section, and adjoining each other
along the length of the crotch
section to provide the non-planar crotch
section.
Donnelly was cross-examined at length in regard to the presence of
the disputed integers, and it was upon the answers that he gave
under
cross-examination that the argument before us on behalf of J & J was largely
based.
To the extent that Donnelly's evidence constituted guidance or
assistance to the Court in forming an
opinion
33 opinion as to the presence or absence of the disputed
integers, it was admissible. But where it was evidence of his own opinion
in
this regard (whether it was given in chief or under cross-examination) it was
inadmissible and must be ignored. Relating the un-technical
language of claim 1
to the respective features of the Panty Nappy creates no problem. There is no
complexity, either of design or
construction, in the patented article involving
the study of difficult or esoteric matters of science or mechanics. The Court is
well able to determine for itself whether the disputed integers are present in
the Panty Nappy.
I now deal in turn with the disputed integers.
Integer
34
Integer 2
.
Having a substantially planar waistband
section at each end
.
Counsel for J & J agreed during argument that if the Panty Nappy is laid
on a flat surface (as it would normally be prior to application
to a baby,), the
waistband section at each end is substantially planar.
But, he said, J &
J's case was that the Panty Nappy was substantially bowl-like or cup-like and
that, accordingly, it cannot have
a substantially planar waistband section. It
is true that when it is placed on a baby the Panty Nappy is cup-like, and it has
a cup-like
appearance when the waistband sections are joined at their respective
ends and the diaper is held with the waist open. But the conclusion
is a
non
sequitur
.
However
35 However the diaper is arranged, the fact remains that the waistband
section is substantially planar relative to the substantially
non-planar crotch
section.
Then it was argued that the infringement alleged in the particulars
of claim was the sale of the diapers marked "TS1" and "TS2". These
diapers had
each been folded and they were contained in a cellophane wrapping. Having been
folded, the waistband sections were not
substantially planar. Consequently the
diapers "TS1" and "TS2" did not infringe. For this startling proposition counsel
did not rely
on any principle of Patent Law. Nor could he, because s. 45(1) of
the
Patents Acts
, 57 of 1978 provides that -
"45(1)
36
"45(1) The effect of a patent shall be to grant to the
patentee in the Republic, subject to the provisions of the Act, for the duration
of the patent, the right to exclude other persons from making, using, exercising
or disposing of the invention, so that he shall
have and enjoy the whole profit
and advantage accruing by reason of the invention."
Counsel said that the contention was based on the way infringement had been
pleaded in the particulars of claim. It is true that the
plaintiffs relied, in
order to prove infringement, on the sale of two packs of Panty Nappies. But
infringement or not cannot depend
on the fortuitous circumstances of the way in
which an otherwise infringing article is packed for the market.
In
37
In my view, therefore, O'DONOVAN J was correct
in holding that integer 2 was to be found in the Panty
Nappy.
Integer 9
.
One of the said means being secured adjacent each edge
of the said crotch section
.
An inspection of the Panty Nappy reveals that on each side of the crotch
section there is secured to the impervious backing sheet
an "elastically
extendible means". Its position is between the edge of the batt and the outside
edge of the crotch section of the
diaper.
It was argued that Donnelly's
evidence dealt with the distance between the elastic and the batt: he did not
deal with the positioning
of the elastic in
relation
38 relation to the edge of the crotch section. This, it was
submitted, was a matter for expert evidence and, in the absence of such
evidence, KIMBERLY-CLARK should not have succeeded.
I do not agree that this
was a matter for expert evidence. It is something which is directly perceivable
on inspection, which reveals
that the elastic is next to the batt on one side of
it and next to the edge of the crotch section on the other side. "Adjacent",
according to the Shorter Oxford Dictionary, means "Lying near to, adjoining;
bordering. (Not necessarily
touching
)." The elastic is manifestly
adjacent to the edge of the crotch section.
Integer
39
Integer 10
.
In a manner which produces a plurality
of gross transverse rugosities
.
Upon inspection there are seen to be a plurality of gross transverse
rugosities in the crotch section of the Panty Nappy. It was argued,
however,
that it had not been proved that the rugosities were caused by the manner in
which the elastic was secured, and reliance
was placed on an answer by Donnelly
given under cross-examination that he did "not know what causes them".
In my
view this was not a matter on which Donnelly's opinion was admissible. The case
is one where
res ipsa loquitur
. In a sample of a diaper without elastic
secured adjacent to the edges of the crotch section, there are no rugosities;
when the elastic
in a
Panty
40
Panty Nappy is extended by pulling the ends in
opposite
directions, the rugosities disappear. Moreover, the
mechanism by
which rugosities are produced is taught in
a passage in the specification
which was quoted without
criticism by counsel for J & J both in this
Court and in
the Commissioner's Court:
"When narrow crotch section 20 is constricted by the contracted elastic means
at each edge, the crotch section develops a multiplicity
of gross transverse
rugosities 25. Stated another way, crotch section 20 is reduced in length but
still contains the same amount
of absorbent material. Accordingly, the absorbent
batt in the crotch area is made effectively thicker because of the adjoining
hills
and valleys of which the transverse rugosities are comprised and
therefore
will
41
will have more absorbent capacity per unit area than a batt of
the same original thickness has in its initial planar form."
(The figure references are to drawings).
With regard to integers 11 and
12, it is evident on inspection of the Panty Nappy that the rugosities extend
across the width of the
crotch section, and that they "adjoin each other along
the length of the said crotch section to provide the non-planar crotch
section".
My conclusion is that the Panty Nappy exhibits all the integers of
claim 1, so that it has been established that the claim was infringed.
'. This
conclusion makes it unnecessary to consider any of the other claims.
The
42 The appeal is dismissed with costs, including the costs of two
counsel.
H C NICHOLAS, AJA
CORBETT, JA )
GALGUT, AJA )