G I Marketing CC v Fraser-Johnston (172/94) [1995] ZASCA 131; [1996] 1 All SA 1 (A) (20 November 1995)

G I Marketing CC v Fraser-Johnston (172/94) [1995] ZASCA 131; [1996] 1 All SA 1 (A) (20 November 1995)

The Supreme Court of Appeal considered whether the relevant claims of the 1987 and 1989 patents were anticipated by prior art and whether claim 2 of the 1987 patent was ambiguous. The Court found that claim 9 of the 1987 patent was anticipated by the Schneider patent and that both patents were anticipated by the Blau patent, thus lacking novelty. Furthermore, the Court held that claim 2 of the 1987 patent was ambiguous within the meaning of section 61(1)(f)(i) of the Patents Act. The amendments to the 1987 patent were not effected in accordance with section 51(1) of the Act and were therefore invalid. As a result, the patents were subject to revocation.

Citation
[1995] ZASCA 131
Parties
Appellant: G I Marketing CC; Respondent: Fraser-Johnston
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
20 November 1995
Case Number
172/94
Procedural Posture
Civil Appeal / Appeal From the Court of the Commissioner of Patents
Outcome
The appeal was dismissed and the patents were revoked.
Judges
Corbett, E M Grosskopf, Nestadt, Harms, Scott
Legal Topics
Patent Revocation, Novelty, Obviousness, Ambiguity, State of the Art, Amendment of Patent Claims
Intellectual Property Patent Revocation Novelty Obviousness Ambiguity State of the Art Amendment of Patent Claims

Case Brief

Summary, issues, holding and outcome

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Parties

G I Marketing CC

Appellant

Fraser-Johnston

Respondent

Procedural Posture

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

Legal Issues

  1. 1 Whether claim 9 of the 1987 patent and claim 1 of the 1989 patent lack novelty and are anticipated by prior art.
  2. 2 Whether claim 2 of the 1987 patent is ambiguous under section 61(1)(f)(i) of the Patents Act.
  3. 3 Whether the amendments to the 1987 patent were validly effected in terms of section 51(1) of the Patents Act.

Ratio Decidendi

The Supreme Court of Appeal considered whether the relevant claims of the 1987 and 1989 patents were anticipated by prior art and whether claim 2 of the 1987 patent was ambiguous. The Court found that claim 9 of the 1987 patent was anticipated by the Schneider patent and that both patents were anticipated by the Blau patent, thus lacking novelty. Furthermore, the Court held that claim 2 of the 1987 patent was ambiguous within the meaning of section 61(1)(f)(i) of the Patents Act. The amendments to the 1987 patent were not effected in accordance with section 51(1) of the Act and were therefore invalid. As a result, the patents were subject to revocation.

Court Disposition

The appeal was dismissed and the patents were revoked.

Orders

  • The appeal is dismissed.
  • Patent no 87/6659 and patent no 89/8855 are revoked.