THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case No: 233/2016

In the matter between:

ORICA MINING SERVICES SA (PTY) LTD

APPELLANT

and

ELBROC MINING PRODUCTS (PTY) LTD

RESPONDENT

Neutral Citation:
Orica Mining Services v Elbroc Mining Products (233/2016)
[2017] ZASCA 48 (31 March 2017)
Coram:

Maya AP, Swain and Dambuza JJA and Nicholls and Mbatha

AJJA
Heard:

24 February 2017
Delivered:

31 March 2017

Summary: Intellectual property: claim for patent infringement: s 45 Patents Act 57 of
1978: extent of protection determined by wording of claims: claims to be read in the
context of the patented specification: interpretation of „between‟ in claim to mean
"linearly between" unjustified in context of specification as well as claims: purposive
interpretation: "linearly between" not essential for functionality of invention.

___________________________________________________________________
ORDER
___________________________________________________________________

On appeal from:  Court of the Commissioner of Patents (Mabuse J, sitting as court
of first instance):
1 The appeal is upheld with costs, including the costs of two counsel;
2 The order of the court a quo is set aside and replaced with the following:
„(a) The defendant is interdicted from infringing South African Patent number
2001/10382 by way of the sale or offering for sale in South Africa of the
defendant‟s drill rig.
(b) The defendant is ordered to pay the plaintiff's costs, including the costs of two
counsel.‟
___________________________________________________________________
JUDGMENT
___________________________________________________________________

Dambuza JA (Maya AP, Swain JA and Nicholls and Mbatha AJJA concurring):

[1] This is an appeal against the judgment of the Court of the Commissioner of
Patents, (Mabuse J). The court dismissed with costs, an action by the appellant,
Orica Mining Services South Africa (Pty) Ltd (Orica) as plaintiff, for an interdict and
ancillary relief, against the respondent, Elbroc Mining Products (Pty) Ltd (Elbroc) as
defendant. The object of the interdict was to restrain Elbroc from infringing South
African patent number 2001/10382, entitled "Portable Drilling Apparatus" (the patent)
held by Orica.

[2] Elbroc counterclaimed for revocation of the patent on the grounds of
obviousness. However, the parties agreed and the court ordered separation of the
issues. Elbroc‟s counterclaim was postponed sine die. Consequently, only the
alleged infringement and more particularly, the meaning of the word „between‟ in the
patent claims, which was central to Orica‟s claim, was before the court a quo.
The appeal is with the leave of the court a quo.

[3] The parties are South African companies which conduct business as suppliers
of materials and equipment used in the mining industry. Orica was granted the

patent on 19 December 2001 under the Patents Act 57 of 1978 (Patents Act) for a
drill rig. The rig is used to drill holes on the hanging roof (or wall) of a mine for
purposes of placing roof-bolts or other securing attachments into the wall – to
reinforce and stabilise the hanging wall. The invention is therefore referred to as a
roof bolter rig. It enables drilling of holes in confined spaces such as stopes, without
having to manually hold and maintain the machine in position. It is a self-supporting
drill rig. In its preferred design it consists of two extendable telescopic props – onto
which is mounted a drill carriage. The props support the surface of the hanging wall
during drilling thus reducing the risk of the hanging wall collapsing onto the rig user.
The machine enhances safety in the mining industry.

[4] Each prop has a pair of cylinders joined at either end by a brace and a base.
A hydraulically operated piston slides into each cylinder to extend from the end of the
cylinder. The free end of the piston forms a point and a conical stud extends centrally
from the outer surface of the base.

[5] Below is a diagram of the Patent No 10382/2001.

The diagram shows, amongst other things, extendable props (2) with a drill (3)
secured thereto. Each prop (2) has a pair of cylinders (5) joined at either end (6, 7)
by a brace (8) and a base (9) with a hydraulically operated piston (10) slidably
secured within each cylinder (5) to extend from the end (6). The free end (11) of
each piston (10) forms a point and a conical stud (12) extends centrally from the
outer surface (13) of the base (9).

[6] It is common cause that Elbroc sold roof bolter rigs that perform the same
function as Orica‟s to the mining industry in South Africa. This led to the allegation of
infringement by Orica. Before the court a quo, Orica contended that Elbroc had
infringed claims 1, 16, 17 and 18 of the patent. In these claims the invention is
described as:
„1.  A portable self-supporting drill rig comprising a pair of spaced apart telescopic props with
a carriage between them, the carriage movable along an axis substantially parallel to those
of the props and supporting a drill mounted on the carriage…1
„16. A portable self-supporting drill rig comprising a pair of spaced apart fluid operated
telescopic props with a carriage between them, the carriage movable along an axis
substantially parallel to those of the props and supporting a drill mounted on the carriage,
with the props each secured to a base and braced apart.
17. A portable self-supporting drill rig comprising a pair of spaced apart fluid operated
telescopic props with a carriage between them, the carriage movable along an axis
substantially parallel to those of the props and supporting a drill mounted on the carriage,
with the props each secured to a base and braced apart and the carriage movable by an
extendable piston mounted on the base.
18. A portable self-supporting drill rig comprising a pair of spaced apart telescopic props with
a carriage between them, the carriage movable along an axis substantially parallel to those
of the props and supporting a drill mounted on the carriage, the props each including a
cylinder with one end secured to a base, the cylinders each having a fluid operated piston
slidably secured therein to extend from the other end thereof, and the cylinders braced
apart.‟

1 Claims two to six provide:
„2. A drill rig as claimed In claim 1 in which the drill is pivotally mounted on the carriage.
3. A drill rig as claimed in claim 1 or claim 2 in which the carriage is supported by the props.
4. A drill rig as claimed in claim 3 in which the carriage Is movable along the props.
5. A drill rig as claimed in claim 3 or claim 4 in which the carriage is mounted on a pair of fluid
operated cylinders on the outside of the props.
6. A drill rig as claimed – in claim 5 in which the carriage has a pair of members spaced apart along
the length of the cylinders – the lower member providing the pivot mounting for the drill and the upper
member providing a releasable lock assembly for fixing the drill In alignment with the props.‟

[7] Elbroc contended that one of the integers of the claims in the patent was not
present in its drill rig. This was, according to Elbroc, the description of the drill
carriage as located between a pair of telescopic props. Elbroc contended that this
meant that the drill carriage in the Orica rig was located linearly between the props –
which was not the case with its (Elbroc‟s) rig. For this reason, whilst admitting the
presence of all the other integers of the patent in its drill rig Elbroc maintained that its
rig fell outside the patent claims. This argument is graphically illustrated by the top
view of Elbroc‟s drill rig.

Top view of the Elbroc rig

[8] Having considered the claims of the patent the Commissioner found that the
Elbroc drill rig did not infringe the patent as its carriage equipment was not located
„between‟ its two props. In interpreting the word „between‟ the learned judge adopted
the dictionary meaning „linearly between,‟ and found that because the carriage in
Elbroc‟s drill rig was offset from the linear space between the props there had been
no infringement of the patent. He also held that Orica‟s interpretation of the word
„between‟ amounted to an impermissible extension of the meaning of the word
because it sought „to include a carriage which is offset at a right angle to the co-

linear line between the pair of telescopic props at an undefined and unspecified
distance from the space between the two props‟.

[9] In this court Orica persisted in its contention that on a proper construction the
patent claims required only that the drill carriage be located in the space between the
two props, even if not in the same linear plane as the props. It was submitted on
behalf of Orica that Elbroc‟s argument incorrectly equated the word „space‟ with the
word „line‟ and ignored the context of the specification and the three dimensional
configuration of the props, together with the space separating them.

[10] On the other hand counsel for Elbroc submitted that the correct approach is to
use „the language of the claims‟, that being the ordinary dictionary meaning of the
word „between‟.

[11] Section 45(1) of the Patents Act provides for protection of a patentee against
the making, using, exercising, disposing or offering to dispose of or importing of the
patentee‟s invention. The protection endures for the duration of the patent.2 The
invention is defined in the patent and the courts have indeed held that the exact
nature and scope of the invention and the monopoly claimed for it by a patentee (the
essential constituent features of the patent) must be determined by interpreting the
patent claims.3 In the well know case of Gentiruco AG v Firestone SA (Pty) Ltd4 this
court noted that in dealing with aspects, relating to patent infringements, its first task
is to „ascertain the nature of the invention as claimed and its precise scope.
Accordingly the specification, and especially the claims, have to be construed; it is,
after all, the instrument on which the letters patent were applied for and granted and
it must therefore necessarily govern those issues.‟5 It was pointed out that „if the
object of the claims is borne in mind, their meaning, as ascertained from their own
language, must prevail over the rest of the specification‟ because that is where those
to whom the patent is addressed, will look to determine if they are trespassing.6

2 The Law of South Africa 2nd edition Vol 20 at 179.
3 Ibid.
4 Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA 589 (A).
5 Ibid at 613F-H.
6 Ibid at 615C.

[12] The correct approach to interpreting the claims in the context of the patent as
a whole, has been described in the following terms. In Harrison v Anderson Foundry
Company (1876) 1 AC 574 (HL) the court held:
„The office of a claim is to define and limit with precision what it is which is claimed to have
been invented and therefore patented.
Where a claim is clearly and distinctly made, there can be no necessity for a patentee to
distinguish between what is disclaimed and what is claimed. It is enough to say to Lord
Gifford‟s suggestion that everything which is not claimed is disclaimed.‟
In Multotec Manufacturing (Pty) Ltd v Screenex Wire Weaving Manufacturers (Pty)
Ltd 1983 (1) SA 709 (A) at 721C-E, Corbett JA observed that:
„[T]he Court should always guard against too "textual" an approach in the interpretation of
claims in a patent specification. It is true that it is in the claims that a patentee stakes out and
defines his monopoly; and that the claims must be looked at in order to determine whether
an infringement has taken place. But by peering too closely at the language of a claim the
Court may overlook an infringement which takes the substance of the invention. . . . In this
context it is often said that an infringer who takes the "pith and marrow" of the invention
commits an infringement even though he omits an inessential part or substitutes for that part
a mechanical equivalent. . . . Where the alleged infringer has deviated in regard to some
feature from the invention as literally claimed in the specification, it may often be a matter of
considerable difficulty to determine whether the deviation relates to an essential or a non-
essential feature of the relevant claim or claims. In relation to this I would favour the
approach stated by Lord Diplock in . . . Catnic Components Ltd and Another v Hill and Smith
1981 Fleet Street Reports 60 . . . (at 65 – 66).‟

[13] In Electrical and Musical Industries v Lissen Ltd (1938), 56 RPC 23 [UK] at 39
Lord Russell of Killowen whilst highlighting the function served by patent claims,
clearly stated that the claims derive their colour from the context set out in the body
of the specification. The Learned Judge held:
„The function of the claims is to define clearly with precision the monopoly claimed, so that
the others may know the exact boundaries of the area within which they will be trespassers.
Their primary object is to limit and not to extend monopoly. What is not claimed is
disclaimed. The claims must undoubtedly be read as part of the entire document, and not as
a separate document; but the forbidden field must be found in the language of the claims
and not elsewhere. It is not permissible in my opinion, by reference to some language used
in the earlier part of the specification, to change a claim, which, by its own language is a
claim for one subject-matter, which is what you do when you alter the boundaries of the

forbidden territory. A patentee who describes an invention in the body of a specification
obtains no monopoly unless it is claimed in the claims…
A claim is a portion of the specification which fulfils a separate and distinct function. It and it
alone defines the monopoly; and the patentee is under a statutory obligation to state in the
claims clearly and distinctly what is the invention which he seeks to protect.‟

[14] In Gentiruco AG v Firestone SA (Pty) Ltd7 this court, confronted with a
contention by Firestone that certain claims were irresolvably ambiguous and
therefore invalid, considered the provisions of s16(3) of The Patents Act 9 of 1916
which read:
„A complete specification (1) must fully describe and ascertain the invention and the manner
in which it is to be performed, and (2) must end with a distinct statement of the invention
claimed.‟
Trollip JA remarked that „[s 16(3)] entrenched a method of drawing specifications
that had been evolved in practice, i.e., of incorporating into the patent‟s specification
claims that defined clearly and with precision the invention claimed as a monopoly‟8
and went on to hold that:
„The wording of the second part of the sub-section does not effect a legal severance of the
claims from the rest of the specification; “distinct statement” there means, not a separate
statement but a clear one (see Dutch version, “duidelike opgawe”); the claims do not
constitute a separate document in any sense; they remain part of the specification which
must be read as a whole. . . . Moreover, as the function of the claims is to define with clarity
and precision the scope of the invention claimed as a monopoly, they must of necessity also
serve to describe and ascertain the invention; indeed, as will presently appear, they are not
only an important but also a decisive part of its description and ascertainment.‟9

[15] The court also held that:
„Both must therefore be regarded to ascertain whether or not the complete specification
sufficiently discloses or explains the invention. Indeed the influence of s 16 (3) on s 27 (1)(g),
is such that the words “the invention” in the latter section must mean „the invention as
claimed‟. For a patentee may claim something less than he has invented. Thus, if he
predicates in the body of the specification an invention comprising (a), and (b) but he claims
only (a), the inquiry into sufficient disclosure etc. under the section would be confined to (a)
and would not also extend to (b).‟10

7 Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA 589 (A) at 611A-C.
8 Ibid at 610 C-D.
9 Ibid at 611 A-D.
10 Ibid at 612B-C.

[16] More recently in Marine 3 Technologies Holdings (Pty) Ltd v Afrigroup
Investments (Pty) Ltd11 this court said:
„Generally the first task of a court in the determination of an issue such as the present is to
construe the claims in the patent (Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA 589
(A)). According to Harms JA (Monsanto Co v MDB Animal Health (Pty) Ltd (formerly MD
Biologics CC) 2001 (2) SA 887 (SCA) para 8:
“The rules relating to the interpretation of patents have often been stated and do not need any
reformulation. The problem lies in their sensible application in any given case. For present purposes
the following rules as they appear in Gentiruco AG v Firestone SA (Pty) Ltd … at 614A-616D may be
emphasised: (a) a specification should be construed like any other document, subject to the
interpreter being mindful of the objects of a specification and its several parts; (b) the rule of
interpretation is to ascertain, not what the inventor or patentee may have had in mind, but what the
language used in the specification means, ie what the intention was as conveyed by the specification,
properly construed; (c) to ascertain that meaning the words used must be read grammatically and in
their ordinary sense; (d) technical words of the art or science involved in the invention must also be
given their ordinary meaning, ie as they are ordinarily understood in the particular art or science; (e) if
it appears that a word or expression is used, not in its ordinary sense, but with some special
connotation, it must be given that meaning since the specification may occasionally define a particular
word or expression with the intention that it should bear that meaning in its body or claims, thereby
providing its own dictionary for its interpretation; (f) if a word or expression is susceptible of some
flexibility in its ordinary connotation, it should be interpreted so as to conform with and not to be
inconsistent with or repugnant to the rest of the specification; and (g) if it appears from reading the
specification as a whole that certain words or expressions in the claims are affected or defined by
what is said in the body of the specification, the language of the claims must then be construed
accordingly.”‟

[17] Regarding the language used in the claim Elbroc contended that Orica would
be entitled to invoke the content of the body of the specification only if the word
„between‟, read in context, was ambiguous or had a peculiar technical or scientific
meaning. But in the absence of such ambiguity the word ought to be accorded its
ordinary meaning and the body of the specification could not be invoked, so it was
argued. Indeed, if the meaning of a claim, properly constructed, is sensible, clear
and unambiguous, it is decisive and cannot be restricted or extended by anything
else stated in the body and title of the specification.12 But Elbroc advanced three
dictionary meanings of „between‟. These were: „[across] the space separating two

11 Marine 3 Technologies Holdings (Pty) Ltd v Afrigroup Investments (Pty) Ltd & another [2014] ZASCA
208; 2015 (2) SA 387 (SCA) para 10.
12 Gentiruco ibid at 615E-F.

things‟,13 „with something on each side‟,14 and „a point B is said to lie between points
A and C where A, B, and C are distinct collinear points.‟15 It is important to highlight
that a number of rules of interpretation of patents have developed over time, and the
dictionary meaning of a word is only a guide; it is not decisive of the meaning of a
word.16 The appropriate question being the meaning applicable in the context of the
particular document under consideration – as even definitions must be read in
context.17

[18] There was no explanation for Elbroc‟s choice of the dictionary meaning
selected. In my view the definition, „with something on each side‟ is the most
sensible. It accords with the relational nature of the word „between‟ and is not
dependant on the configuration of the objects under comparison. On the other hand,
as submitted on behalf of Orica the definition „linearly between‟ is restricted to a
situation where the objects compared are of similar configuration. Counsel for Orica
pointed out that during preparation for operation of the preferred embodiment of the
patent, particularly during insertion of the drill into the carriage, a portion of the
carriage at times is off-set from a linear line between the two props.

[19] With regard to context, the advantage of the invention is the enhanced safety
as a result of the support provided by the telescopic props. Further, the detailed
description of the invention in the specification, specifically disavowed a restriction to
linear positioning of the carriage between the props and a limitation to two props. It
provides that „the drill need not be located linearly between the pair of props, but
may be generally between them. This would more likely be the case where an
additional prop or additional props are used‟. Once there are more than two props
which are not configured in a straight line, the carriage may be located between the
props, without being linearly between them.

[20] Both parties led expert evidence with regard to the understanding of persons
skilled in the art. Elbroc‟s expert understood the word „between‟ to mean that the

13 Based on a definition in the Shorter Oxford English Dictionary 6 ed (2007) in terms of which
„between‟ is defined as a synonym for interjacent, which, in turn, is defined as „to lie in between‟; „in
between‟ being defined as „ the middle point on the line: the space between two points in position‟.
14 MacMillan Dictionary.
15 Wolfram and MathWorld.
16 De Beers Industrial Diamond Division (Pty) Ltd v Ishizuka 1980 (2) SA 191 (T). See also: Monsanto
Co v MDB Animal Health (Pty) Ltd (Formerly MD Biologics CC) 2001 (2) SA 887 (SCA) paras 9-10.
17 Lawsa ibid para 184 at 181.

carriage could be offset from the linear line between the props and could also be off
centre. Both experts understood the „linearly between‟ position of the carriage to be
the optimal solution to the problem that the patent solved. Needless to say the
optimal solution is not the only solution.

[21] Turning to purposive interpretation, Orica‟s argument in this regard was raised
as an alternative to the above stated submissions. Within the context of patent
construction, unlike literalism, this approach takes into account the practical
knowledge and experience of the person skilled in the kind of work in which the
invention is intended to be used.18 It considers that a person skilled in the art would
understand whether strict compliance with a particular word or phrase was intended
and whether a variant of a word would have an effect upon the way the invention
works, such that the impugned object would fall outside the monopoly protected in
the claims and there would be no infringement.19

[22] The facts in this appeal bear a striking resemblance to Catnic Components
Limited & another v Hill & Smith Limited20 which was the leading English authority on
purposive construction prior to the enactment of the UK Patents Act in 1977.  Firstly,
similarly to the defendant in Catnic, Elbroc admitted to having taken all but one of the
essential features of plaintiff‟s patent. Secondly, there is no evidence that the variant
integer that features in Elbroc‟s drill rig has any material effect on the functioning of
the Orica drill rig.

[23] In Catnic the plaintiffs were the registered proprietors of a patent for novel,
commercially successful steel lintels invented by the second plaintiff. The
defendants, intending to enter the market for galvanised steel lintels, obtained a copy
of the plaintiffs‟ experimental lintel drawings from which they (the defendants) made
their lintels. On being cited for infringement of the patent the defendants produced a
lintel which differed from their first one and from the plaintiffs‟ only in that its rear
support member, instead of being perpendicular to the base, was inclined 6 or 8
degrees from the vertical position. Claim 1 of the patent required the rear member to
„extend vertically‟. The angle of 6 to 8 degrees in the defendants‟ lintel reduced the

18 Selas Corporation of America v Electric Furnace Co 1983 (1) SA 1043 (A) at 1052G-1053F.
19 See Aktiebolaget Hässle & another v Triomed (Pty) Ltd 2003 (1) SA 155 (SCA) para 8.
20 Catnic Components Limited & another v Hill & Smith Limited [1982] RPC183 at 244.

load bearing capacity of the rear member by 0.6 and 1.2 per cent respectively. This
reduction had a negligible effect on the functioning of the member. The Court held
that it would not have been the understanding of persons with the relevant practical
knowledge and experience that strict compliance with the words „extending vertically‟
was intended by the patentee. Moreover, „extending vertically‟ was, in context,
capable of meaning, ‘near enough to vertical to enable the back plate to perform
satisfactorily all the functions that it could perform if it were precisely vertical’.21 (My
emphasis.)

[24] There is nothing in claim 1 of the patent to show that Orica intended that a drill
carriage located only linearly between the props was essential to its invention, or that
a person skilled in the art would understand that the word „between‟ was intended to
be used as a „word of precise meaning‟.22 Moreover Elbroc‟s expert, Mr Johannes
Fourie admitted that although the Elbroc drill carriage is located off the notional line
between the props it was the Elbroc drill rig was still located sufficiently close to the
line to be able to gain support from the props.

[25] Counsel for Elbroc relied upon the decision in Kirin-Amgen Inc & others v
Hoechst Marion Roussel Ltd.23 In support of Elbroc‟s contentions regarding the
interpretation of claims in a patent. For the reasons set out below I do not agree with
the submission.

[26] In Kirin-Amgen, the issue was whether the claims of a European patent
granted to Kirin-Amgen Inc in relation to a protein which stimulates production of red
blood cells in the bone marrow, were infringed by Transkaryotic Therapies Inc. and
Hoechst Marion Roussel Ltd, in circumstances where there was striking similarity
between the technologies used by the two parties for producing the hormone
erythropoietin. The Court found no infringement on the facts of the case. Indeed, the
Court held that patent claims are the decisive basis for determining the extent of
protection.24 But it also approved the basic principles of patent interpretation

21 Ibid at 185.
22 Ibid at 237.
23 Kirin-Amgen Inc & others v Hoechst Marion Roussel Ltd & others; Hoechst Marion Roussel Ltd &
others v Kirin-Amgen & others [2005] 1 All ER 667.
24 At 667.

enunciated in Catnic. The court considered Articles 69 and 84 of the European
Patent Convention (EPC). Article 84 provides that:
„The claims shall define the matter for which protection is sought. They shall be clear and
concise and supported by the description.‟
Article 69 states:
„The extent of the protection conferred by a European patent or European patent application
shall be determined by the terms of the claims. Nevertheless the description and the
drawings shall be used to interpret the claims.‟

[27] Lord Hoffman then sketched the background of these provisions, explaining
that Article 69 was the result of a compromise between what was viewed as the
unduly narrow and literal construction approach of the United Kingdom, and the
other contracting European States whose approach had been to look at the essence
of the invention. The learned judge held that Article 69 should be interpreted as
„defining a position between these extremes which combines a fair protection for the
patentee with a reasonable degree of certainty for third parties.‟

[28] The learned judge referred to the earlier approach in interpreting English rules
which prescribed that the body of the specification could only be considered where
claims had been found to be ambiguous and not where the claims had plain meaning
in themselves. He remarked that to avoid possible injustice, judges were generally
astute to finding the necessary „ambiguity‟ which enabled them to interpret the
document in its proper context and said: „indeed, the attempt to treat the words of the
claim as having meanings “in themselves” and without regard to the context in which
or the purpose for which they were used was always a highly artificial exercise.‟ (at
679.)

[29] Having referred with approval to the purposive approach adopted in Catnic,
the learned judge held (at 680):
„Construction, whether of a patent or any other document, is of course not directly concerned
with what the author meant to say. There is no window into the mind of the patentee or the
author of any other document. Construction is objective in the sense that it is concerned with
what a reasonable person to whom the utterance was addressed would have understood the
author to be using the words to mean. Notice, however, that it is not, as is sometimes said,
"the meaning of the words the author used", but rather what the notional addressee would
have understood the author to mean by using those words. The meaning of words is a

matter of convention, governed by rules, which can be found in dictionaries and grammars.
What the author would have been understood to mean by using those words is not simply a
matter of rules. It is highly sensitive to the context of and background to the particular
utterance. It depends not only upon the words the author has chosen but also upon the
identity of the audience he is taken to have been addressing and the knowledge and
assumptions which one attributes to that audience.‟

[30] The reliance placed by Elbroc on Kirin-Amgen is therefore misplaced.
Purposive interpretation is not an undue extension of the language of patent claims.
In my view to interpret the word „between‟ as meaning linearly between the props is
not in accordance with a purposive interpretation of the specification, as delineated
by the claims. The advantage of the invention is that the telescopic props give
support not only to the hanging roof of the stope, but also to the drill located
"between" them, so that it may be operated remotely. This is precisely what the
respondent‟s drill rig seeks to achieve.

[31] In the result, the following order is made:
1 The appeal is upheld with costs, including the costs of two counsel;
2 The order of the court a quo is set aside and replaced with the following:
„(a) The defendant is interdicted from infringing South African Patent number
2001/10382 by way of the sale or offering for sale in South Africa of the
defendant‟s  drill rig.
(b) The defendant is ordered to pay the plaintiff's costs, including the costs of two
counsel.‟

_________________
N DAMBUZA
JUDGE OF APPEAL

APPEARANCES:

For the Appellant:

R Michau SC and K Iles
Instructed by: Dessington & Associates Inc.
Pretoria
c/o Symington & De Kok Attorneys
Bloemfontein

For the Respondent:

A J Bester SC
Instructed by: McCallum Rademeyer & Freimond
Pretoria
c/o Honey Attorneys
Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

31 March 2017

STATUS

Immediate

Please note that the media summary is for the benefit of the media and does not form part of
the judgment.

Neutral Citation:
Orica Mining Services v Elbroc Mining Products (233/2016)
[2017] ZASCA 48 (31 March 2017)

MEDIA STATEMENT

Today the Supreme Court of Appeal handed down a judgment overturning an order
of the Court of the Commissioner of Patents, dismissing an application by Orica
Mining Services (Pty) Ltd for an interdict against Elbroc Mining Products (Pty) Ltd.
Orica had approached the Court of the Commissioner alleging that a roof bolster rig
that Elbroc was selling infringed its patent no 2001/10382 granted in respect of
Orica’s Roof Bolster rig. Elbroc denied the allegation contending that, unlike the
Orica rig the drill carriage in its rig was not located ‘between’ the two telescopic
props that supported the carriage. It was not in dispute that unlike in the Orica rig,
the drill carriage in the Elbroc rig was located off a notional linear line drawn
between the two props.

The Commissioner held that the carriage in the Elbroc rig was not located between
the two props and therefore there was no infringement of the patent. The court found
that ‘between’ meant ‘linearly between’ and that the meaning contended for by Orica
constituted an extension of the ordinary meaning of the word as provided in the
patent

On appeal, the SCA held that claims derive their colour from the context set in the
body of the specification. The Court found that the interpretation given by the
Commissioner to the word ‘between’ was unjustified in the context of the
specification as well as the claim and that on a purposive approach the ‘linearly
between’ was not essential for functioning of the invention. The appeal succeeded.

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