Buckman Laboratories (Pty) Ltd v Bromine Compounds Ltd (655/06) [2008] ZASCA 37; 2008 BIP 21 (SCA) (28 March 2008)

Buckman Laboratories (Pty) Ltd v Bromine Compounds Ltd (655/06) [2008] ZASCA 37; 2008 BIP 21 (SCA) (28 March 2008)

The Supreme Court of Appeal found that, as at the priority date, the process of forming a biocidal mixture by mixing a chlorine precursor and an ammonium salt and adding it to high chlorine demand circulating waters was well documented in the prior art. The only feature not explicitly disclosed was the immediate addition of the biocidal mixture, but expert evidence established that immediate addition was common sense for maximizing efficacy, especially with oxidizing biocides. The patent did not specify stability as a feature, and there was no reason why a skilled person would not add the preformed chloramine immediately. Therefore, the process described in claims 1 and 14 was obvious and...

Citation
[2008] ZASCA 37
Parties
Appellant: Buckman Laboratories (Pty) Ltd; Respondent: Bromine Compounds Limited
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
28 March 2008
Case Number
655/06
Procedural Posture
Civil Appeal / Appeal From the Court of the Commissioner of Patents
Outcome
Appeal upheld. The patent is revoked, subject to the respondent's right to apply for amendment.
Judges
Streicher, Nugent, Heher, Hurt, Snyders
Legal Topics
Patent Revocation, Inventive Step, Obviousness, Patents Act, Expert Evidence
Intellectual Property Patent Revocation Inventive Step Obviousness Patents Act Expert Evidence

Case Brief

Summary, issues, holding and outcome

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Parties

Buckman Laboratories (Pty) Ltd

Appellant

Bromine Compounds Limited

Respondent

Procedural Posture

Civil Appeal / Appeal From the Court of the Commissioner of Patents

Legal Issues

  1. 1 Whether claims 1 and 14 of SA Patent 92/4018 involve an inventive step as required by the Patents Act.
  2. 2 Whether the process described in the patent is obvious to a person skilled in the art.
  3. 3 Whether the immediate addition of the biocidal mixture constitutes an inventive step.

Ratio Decidendi

The Supreme Court of Appeal found that, as at the priority date, the process of forming a biocidal mixture by mixing a chlorine precursor and an ammonium salt and adding it to high chlorine demand circulating waters was well documented in the prior art. The only feature not explicitly disclosed was the immediate addition of the biocidal mixture, but expert evidence established that immediate addition was common sense for maximizing efficacy, especially with oxidizing biocides. The patent did not specify stability as a feature, and there was no reason why a skilled person would not add the preformed chloramine immediately. Therefore, the process described in claims 1 and 14 was obvious and...

Court Disposition

Appeal upheld. The patent is revoked, subject to the respondent's right to apply for amendment.

Orders

  • The appeal is upheld with costs, including the costs of two counsel.
  • The order of the court a quo is replaced with an order dismissing the plaintiff's action with costs, including the costs of two counsel.