THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable

Case No: 137/2016

In the matter between:

PASADENA LEATHER PRODUCTS CC
T/A PASADENA PRODUCTS
FIRST APPELLANT

TRIFECTA TRADING 83 (PTY) LTD
T/A DOS GROUP

SECOND APPELLANT

and

FRANCO RESCA

FIRST RESPONDENT

ENRICO CUPIDO                                                  SECOND RESPONDENT

Neutral citation: Pasadena v Resca (137/2016) [2016] ZASCA 204 (15
December 2016)

Coram:
Leach, Swain, Dambuza and Mathopo JJA and Makgoka AJA

Heard:
23 November 2016

Delivered: 15 December 2016

Summary: Patent relating to a lockable holster : purposive interpretation : not
all integers of respondents’ patent having been used by the appellants in the
design of their holster: patent not infringed.

________________________________________________________________

ORDER
________________________________________________________________

On appeal from: The Court of the Commissioner of Patents for the Republic
of South Africa (Louw J sitting as court of first instance):
1  The appeal succeeds, with costs.
2  Para (c) of the order of the court a quo is set aside and is substituted with the
following:
‘(c)(i) The plaintiffs’ claims flowing from an alleged infringement of South
African Patent ZA 98/6778 are dismissed.
(ii)
The parties are to bear their own costs.’
________________________________________________________________
JUDGMENT
________________________________________________________________

Leach JA (Swain, Dambuza and Mathopo JJA and Makgoka AJA
concurring)
[1] The first appellant manufactures what is called a ‘swivel holster’ in
which handheld firearms may be housed, a product both appellants have
disposed of in this country. The respondents are the joint registered proprietors
of a registered patent number ZA 98/6778 entitled ‘A Lockable Holster’ (the
patent). They sued the appellants in the Court of the Commissioner of Patents,
claiming that their swivel holster infringes the patent in various respects and
seeking consequential relief. The appellants, in turn, filed a counter claim,

contending that the patent was invalid as the invention to which it referred is
not patentable under s 25 of the Patents Act 57 of 1978 (the Act) and ought to
be revoked.
[2] The respondents were successful. Not only was the appellants’ counter
claim dismissed but an order in the respondents’ favour containing, inter alia,
the following relief, was granted:
‘(i)
The first and second appellants are interdicted from infringing each of claims 1 and 7

of the patent by, in the Republic, manufacturing, using, making, disposing or offering

to dispose of the Swivel Holster or any other product falling within the scope of those

claims.
(ii)
An order for the delivery up for destruction of any product in the possession or under

the control of the appellants which infringe any of claims 1 and 7 of the patent;
(iii)
An enquiry into damages suffered by the respondents as a consequence of the

infringement of the patent and payment of the amount of damages found to have been

so suffered, alternatively into the extent of the infringement and the amount of a

reasonable royalty to be paid in lieu of damages, and payment of the amount of

royalties found to be so payable.’
It is against this order that the appellants appeal to this court. There is no appeal
against the dismissal of their counter claim or a further order declaring the
patent to be valid.

[3] It is hardly necessary to say that an inquiry as to whether there has been
an alleged infringement of a patent requires, as a first step, an interpretation of
the patent itself. A patent is divided into two parts, firstly a description or the

body of the specification which serves to describe the invention in sufficient
detail that the rational person skilled in ‘that art’ can understand what the
invention is and how it is put into practice. The second contains the claims in
the patent, which serve to define and set limits to the monopoly that the patent
is intended to secure and protect. As opposed to the specifications, the function
of the claims in a patent is ‘to inform prospective rivals of the limits of the field
denied to them while the patent lasts’.1

[4] The various claims thus define the exclusive rights of the patentee and
are often referred to as the ‘fences’ or ‘boundaries’ which provide the ‘fields’ of
the monopoly. As the primary object of a claim is therefore to limit and not
extend the patentee’s monopoly, it has given rise to the well-worn phrase that
‘what is not claimed is disclaimed’. As was said in Electric and Musical
Industries:
‘The function of the claims is to define clearly and with precision the monopoly claimed, so
that others may know the exact boundary of the area within which they will be trespassers.
Their primary object is to limit and not extend the 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.’2

1 Per Holmes JA in Letraset Ltd v Helios Ltd 1972 (3) SA 245 (A) recently cited with approval in this court in
Cipla Medpro (Pty) Ltd v Aventis Pharma SA and related appeal 2013 (4) SA 579 (SCA) para 24.
2 Electric and Musical Industries Ltd v Lissen Ltd (1938) 56 RPC 23 [UK]: Quoted by LTC Harms The
Enforcement of Intellectual Property Rights: A Case Book 3 ed (2012) at 259.

The necessity for the monopoly to be defined in the claim was graphically
described as follows in Marconi’s Wireless Telegraph v Phillips Lamps Ltd
1933 RPC 287:3
‘It is not sufficient for the inventor to discover his gold mine ─ he must also peg out his
claim. Outside the pegs, the gold, if it is there, is free to all.’

[5] Bearing these principles in mind, I turn first to the specifications which
are exhaustively and repetitively set out in the patent. Mention is made therein
of ‘camming’ surfaces and how ‘attempted withdrawal of the fire-arm from the
holster cavity without releasing the locking member results in the trigger guard
bearing against the second camming surface exerting a moment around the
pivot axis of the locking member thereby urging the locking member into a
more firmly locked position’.

[6] Crucial to this description and the operation of the invention (and for that
matter the outcome of this appeal) is the meaning of ‘camming’ surfaces. In
M Props (Pty) Ltd v K Riemann and Riemann Associates and another 1997 BIP
17 (CP) 22 the expert witnesses on both sides agreed that a cam is ‘a
mechanical device used to convert one kind of displacement or motion to
another kind of displacement or motion by making use of a specially designed
profile’. The court (MacArthur J) accepted this and continued:

3 Also quoted by Harms at 259.

‘The conversion of the motion is achieved by the cam driving or guiding another component
called a follower. It is not necessary to discuss the situations referred to by Dr Hunt where
the follower controls the cam. Through the special shaping of the cam, i.e. the designed
profile, the rotational movement in the cam may be converted into a linear motion in the
follower. In the same way the cam could have a linear motion and be provided with a
particular profile as to give a different linear motion in the follower. Likewise a rotational
motion in the cam can provide a different rotational movement in the follower. In other
words, the cam mechanism which comprises the cam and the follower can convert a given
input motion into an output motion of a particular desired form. A cam system is clearly a
versatile and flexible tool.’

[7] Relying upon M Props, the court a quo held a ‘camming surface’ to be
the surface or site at which motion is imparted to the cam by the follower, in
this case, the trigger guard. This finding was accepted by both sides in the
appeal in this court, quite correctly, and will be used by me in the analysis that
follows.

[8] Bearing that in mind, the somewhat convoluted description of the
patented holster’s operation set out above becomes clear once regard is had to
the drawing, Figure 2, annexed to the patent and reproduced below:

[9]   In this figure, numeral 10 generally indicates a holster broadly in
accordance with the invention. The working of the invention is further
described in the specification in terms similar to those already quoted above:

‘The holster 10 has a body 12 and a locking member in the form of a latch 16 mounted on the
body 12.
. . .
The latch 16 is pivotally mounted on an outer surface 17 of the body 12 for limited pivotal
translation about a pivot axis defined by a pivot pin 26. The latch 16 is in the form of a first
order lever and includes an effort arm 30 and a working arm 31 positioned on opposite sides
of the pivot axis. A biasing spring 28 is positioned in compression between the effort arm 30
of the latch 16 and the body 12, biasing the effort arm 30 away from the body 12 into a
locked or fire-arm retain position of the latch 16 (shown in solid lines in Figure 2), in which a
portion of the working arm 31 protrudes into a trigger guard passage interfering position in
the trigger guard retaining region 20 of the cavity 14. Two angularly spaced camming
surfaces namely, a first camming surface 18 and a second camming surface 19 are provided
on that portion of the working arm 31 which, in the locked or fire-arm retaining position of
the latch 16 protrudes through the aperture 26 into the trigger guard region 20.
. . .
In Figure 2, reference numeral 50 generally indicates a fire-arm. The fire-arm 50 has a
muzzle 58 and a trigger guard 52 having a leading or outer edge 54 and a trailing or inner
edge 56.
. . .
In use, when the fire-arm 50 is inserted into the holster 10, the camming surface 18 of the
latch 16 is engaged by the leading edge 54 of the trigger guard 52, cam-follower fashion,
urging the camming surface 18 outwardly and causing the latch 16 to pivot in the direction of
arrow 51 against the bias of the spring 28, to permit the passage of the trigger guard 52 past
the working arm 31 into the trigger guard retaining region 20. When the trigger guard 52 has
passed the camming surface 18 into the trigger guard retaining region 20, the latch 16 snaps

back under the influence of the spring 28 into a locked position behind the trailing edge 56 of
the trigger guard 52, thereby retaining the fire-arm 50 within the holster 10.
Attempted withdrawal of the fire-arm from the holster cavity 14 without releasing the latch
16, i.e. displacing the latch towards its displaced position, results in the trailing edge of the
trigger guard bearing against the second camming surface 19 thereby exerting a moment
around the pivot axis 26 of the latch 16 which serves to urge the latch 16 into a more firmly
locked position. This action is assisted by the inclination of the second camming surface 19.
In order to remove the fire-arm 50 from the holster, the latch 16 is manually displaced,
against the bias of the spring 28, in the direction of arrow 51 to its released position (shown
in broken lines in Figure 2) in which the latch is clear of the trigger guard. This displacement
past the trigger guard is assisted by the radiussed portion 21 of the camming surface 19. In
this position, the working arm 31 is clear of the trigger guard 52 permitting the fire-arm 50 to
be drawn from the holster 10.’ (Emphasis provided.)

[10] More simply put, the specification describes that on insertion of a firearm
into the holster its trigger guard, when coming into contact with the spring
mounted latch on its camming surface 18, forces it out of the way towards the
body of the holster. As the weapon is inserted deeper into the holster and the
trigger guard passes its tip, the latch springs back behind the trigger guard,
effectively locking the firearm into the holster. In order for the firearm to be
withdrawn from this locked position, the latch has to be manually displaced.
But should an attempt be made to withdraw the firearm without doing so, due to
its angle of inclination and the curved shape of its camming surface 19, on
coming into contact with the inside edge of the trigger guard, the latch will be

forced deeper into the cavity behind the trigger guard and lock the weapon more
firmly into place (this being the function emphasised in the specification as
quoted above).

[11] That then is the description of the invention as set out in the specification
of the patent. I turn now to deal with the claims ‘pegged out’ by the patentee.4
There are ten claims set out in the patent, only two of which – claims one and
seven – were relied upon by the respondents. In turn, claim seven is in itself,
wholly dependent upon claim one. Consequently, both sides are agreed that if
claim one of the patent has not been infringed, neither has claim seven.

[12] The parties are also agreed that the integers of the first claim of the patent
are the following:
‘(a)
A lockable holster which includes
(b)
a moulded holster body within which part of a fire-arm having a trigger guard is

receivable,
(c)
the holster body having walls defining a cavity for receiving at least part of the fire-

arm including at least a portion of the trigger guard and
(d)
an aperture in a wall of the holster body at a location corresponding to a trigger

guard retaining region of the holster body,
(e)
first locking means on the holster body

4 I plagiarise the phraseology used in Marconi’s Wireless quoted in para 3 above.

(f)
which has a releasable biased locking member which is displaceable between a

locked position towards which it is biased and a released position, whereby the

fire-arm is releasably locked in position in the holster body,
(g)
in which the locking member is in the form of a first order lever which is pivotally

mounted on an outer surface of the holster body
(h)
with a finger engaging effort arm and a working arm which protrudes through the

aperture and into the cavity when the locking member is in  its locked position
(i)
and whereon angularly spaced apart first and second camming surfaces are

provided,
(j)
wherein when the locking member is in its locked position the first  camming surface

is engageable, cam-follower fashion, by the trigger guard of the fire-arm upon

insertion of the fire-arm into the holster
(k)
to displace the locking member away from its locked position to permit the trigger

guard to pass the locking member and to permit the locking member to return to its

locked position once the trigger guard has passed and
(l)
the second camming surface is engageable by the trigger guard to inhibit

unauthorised withdrawal of the fire-arm from the holster, and
(m)
the holster body being configured such that when the fire-arm is locked in position

in the holster body a slide of the fire-arm is accessible and  displaceable to permit a

round of ammunition to be chambered.’

[13]   The crucial question is whether the appellants’ swivel holster infringes
this claim. In order to determine whether an alleged infringement of the patent
has been proved in a case such as this, it is necessary to compare the allegedly
offending article (the swivel holster) against the words of the claims set out in

the patent.5 In this inquiry, the language of the claim is to be purposively
construed in order to establish what were intended to be the essential elements
of the claim, regard being had to the context of the invention as a whole.6

[14] The allegedly offending holster is illustrated below to facilitate the
comparison that has to be made between it and a device envisaged by the
language of the patent (the diagram was attached to the heads of argument of
respondents’ counsel):

5 Aktiebolaget Hässle & another v Triomed (Pty) Ltd 2003 (1) SA 155 (SCA) para 7 and the authority there
cited.
6 Aktiebolaget paras 7-9.

[15] It is apparent from this that what is described as the ‘locking lug 66’, at
the end of the locking member 52, operates as a locking mechanism in a manner
similar to that of the spring-mounted latch (or ‘locking member’ as defined in
the claim) in that, upon a firearm being inserted into the holster the trigger
guard, engaging with the angled surface 68 of the locking lug, will force it out
of its path against the spring loaded arm towards the body of the holster until,
after the trigger guard has passed beyond the nose of the lug, the latter snaps
back into place to secure the firearm in a locked position within the holster.
And, as in the case of the patent, the lug 66 has to be manually disengaged from
that locked position to allow the weapon to thereafter be withdrawn from the
holster.

[16] The parties are therefore agreed that the surface 68 is a ‘camming
surface’ as envisaged by the patent and that the appellants’ swivel holster
satisfies the integers [j] and [k] of the first claim. The primary dispute between
them, however, is whether it also contains integer [l], namely, a second
camming surface ‘engageable by the trigger guard to inhibit unauthorised
withdrawal of the firearm from the holster’.

[17] On this issue, the court a quo was persuaded that the nose of the locking
lug on the swivel holster, which is shaped as it is so as to allow the trigger

guard to pass easily over it and move the locking lug out of the way when a
firearm is either inserted into or withdrawn from the holster, constituted part of
the surface 70. It found accordingly that surface 70 was to be construed as a
second camming surface as envisaged by integer [l].

[18] In my view, whilst it can be accepted that the radiused nose is indeed
designed to facilitate the trigger guard passing the locking lug once the locking
member is manually released, the court a quo erred in concluding both that it is
part of surface 70 or that it satisfies integer [l].

[19] The patent teaches that when the locking member is in its locked position
with a firearm in the holster, the second camming surface is to be ‘engageable
by the trigger guard to inhibit unauthorised withdrawal of the firearm’. This is
achieved by the curved shape of the second camming surface and the acute
angle at which it is inclined in relation to the trigger guard, the effect of which
in the case of an attempted withdrawal without releasing the locking member is
to urge the locking member into an even more firmly locked position.

[20] In this regard it differs from the appellants’ swivel holster. In the case of
the latter, when in the locked position, the radiused nose of the locking lug is
orthogonal (at a right angle) to the trigger guard and extends well into the cavity
of the holster. As a result, and due to its radiused form, the nose of the lug will

not engage the trigger guard should there be an attempt to remove the firearm
(it will only do so once the locking mechanism is released and the firearm
partially withdrawn.) Instead such an attempt would result in the flat bottom
surface 70 of the lug resisting the movement of the trigger guard rather than
converting it into a movement displacing the locking lug away from the trigger
guard. Thus the flat surface of the locking lug, when in its locked position,
cannot be construed as being a camming surface. This alone distinguishes the
appellants’ holster from a holster envisaged by integer [l]. Moreover, I can see
no reason to regard the radiused nose of the locking lug, designed to facilitate
the lug’s easy movement over the trigger guard when a firearm is being either
inserted or withdrawn, as part of the flat surface designed to prevent withdrawal
when the holster is in a locked position.

[21] Counsel for the respondents sought to meet this by arguing that as the flat
surface 70 of the locking lug was the site upon which motion was imparted by
the trigger guard when the locking member was released, it performed a
camming function during that operation and was, consequently, a camming
surface in that context. He argued further that integer [l] did not require the
second camming surface to perform a camming function at the time of an
attempted unauthorised withdrawal, and that as long as surface 70 was a
camming surface at some stage it was to be regarded as the second camming
surface envisaged by integer [l].

[22] In support of the argument that integer [l] did not require the second
camming surface to perform a camming function at the time of an attempted
unauthorised withdrawal, counsel emphasised the teaching in integer [j] that the
first camming surface is to be ‘engageable, cam-follower fashion, by the trigger
guard of the firearm’ on its insertion whereas no mention is made in integer [l]
of the second camming surface having to be engaged in a similar fashion on its
withdrawal. Thus, so the argument went, if the flat surface of the locking lug
performs a camming function in another context it should be regarded as a
camming surface at all times envisaged by the patent. And as it performs a
camming function once the locking mechanism is released, it falls within what
is  to be regarded as a second camming surface for purposes of integer [l].

[23] As was pointed out by this court in Aktiebolaget Hässle7 the language of
the claim must be construed purposively in order to extract from it the essence
for the essential elements of the invention, ‘rather than a purely literal one
derived from applying to it the kind of meticulous verbal analysis in which
lawyers are too often tempted by their training to indulge’.8 And as was made
clear in Ausplow v Northpark Trading9 it is necessary when interpreting a
patent to construct rather than deconstruct a text of the claim to arrive at an

7 Aktiebolaget Hässle & another v Triomed (Pty) Ltd 2003 (1) SA 155 (SCA) para 8.
8 Catnic Components Ltd and another v Hill & Smith Ltd [1982] RPC 183 (HL) at 242 cited in Aktiebolaget
Hässle para 8.
9 Ausplow (Pty) Ltd v Northpark Tradng 3 (Pty) Ltd & others 2011 BIP 12 (SCA); [2011] 4 All SA 221 (SCA)..

interpretation which is technically sensible.  A claim is not to be considered in
isolation but, as was held by this court in Vari-Deals,10 recourse should be had
to the full context and background including the specification to decide what a
person skilled in their art would have understood the claim to mean.11

[24] The essence of the patented invention is that an unauthorised withdrawal
of a firearm results in it being secured more firmly in the holster. This purpose
is achieved by way of the camming effect caused by the trigger guard of the
firearm engaging the second camming surface. Bearing that in mind, and
applying a purposive construction to the language used in integer [l], having
regard to the context in which that integer appears in the patent – including the
vital function of the second camming surface 19 as illustrated in figure 2 of the
patent  to force the latch deeper into the cavity  behind the trigger guard to lock
the weapon more firmly into place should there be an attempted unauthorised
withdrawal – the  language used, properly construed, conveys clearly that
integer [l] requires the second camming surface to function in that way in order
to inhibit an unauthorised withdrawal. The respondents’ argument to the
contrary effect cannot be accepted. It would render superfluous the use of the
phrase ‘second camming surface’ in the integer.

10 Vari-Deals 101 (Pty) Ltd t/a Vari-Deals v Sunsmart Products (Pty) Ltd 2008 (3) SA 447 (SCA) para 11.
11 See further: Kirin-Amgen Inc & others v Hoechst Marion Roussel& others [2005] 1 All ER 667 (HL) para 44
and Monsanto Co v MDB Animal Health (Pty) Ltd (formerly MD Biologies CC) 2001 (2) SA 887 (SCA) para 8.

[25] One final issue needs to be discussed. As a last ditch stand, it was argued
on behalf of the respondents that if sufficient force was applied to the
appellants’ swivel holster in an attempted unauthorised withdrawal of a firearm
without releasing the locking mechanism, the holster could be sufficiently
deformed to the extent that its body could be twisted sufficiently so as to be no
longer orthogonal to the locking lug. In that event, so the argument went, the
lug could no longer be at a right angle when engaged by the trigger guard and
could act as a second camming surface. Indeed, and surprisingly, much of the
evidence of the trial related to the question of whether in this instance the
appellants’ swivel holster’s locking mechanism was capable of in fact
performing the securing function of the patent ie urging the locking lug into a
more firmly locked position when an attempt was made to withdraw the
weapon without first releasing the locking mechanism, similar to the way the
patented holster operates.

[26] Whilst the ingenuity of counsel never ceases to amaze, this is a red
herring. There is no suggestion that the appellants’ swivel holster is designed to
deform in any way, let alone in a manner that will cause the locking lug to be
forced into a more firmly locked position during an unauthorised attempt to
withdraw a firearm. The expert called on behalf of the appellants, Mr Kiesling,
testified that the flat surface of the locking lug would remain orthogonal to the
direction of the gun barrel and the engaging surface of the trigger guard, even if

there was a deformity of the holster. It seems to me to be unnecessary to decide
whether his view or that of the respondents’ expert, Mr Resca, who opined that
a withdrawal could cause a degree of rotation of the locking lug due to a
deformation around the pivot axis of the pivot point thereby causing the locking
lug to act as a cam, needs be accepted. If, through the application of an
extraordinary force, a holster deforms causing a part not designed as a camming
surface to impart motion upon another part due to the deformation, this seems
to me to be irrelevant in the process of interpreting the patent to decide whether
that part should be viewed as a camming surface. The issue is whether the
holster as designed infringes the patent, not how the individual parts of the
holster might operate should it be deformed through extraordinary force.

[27] Consequently, in my view, surface 70 of the locking lug 66 of the
appellants’ swivel holster is not to be construed as a second camming surface as
envisaged by integer [l] of the first claim in the respondents’ patent. It is
designed to block motion and not to convert motion from the trigger guard into
motion in another direction. That being the case, the respondents failed to show
that the appellants’ holster included integer [l] of the first claim in the patent.

[28] As already mentioned, the claims in a patent define the exclusive right of
the monopoly that rests in the patentee. Infringement of a patent thus involves
taking of the invention as set out in the claims. The fact that there are clearly in

this case considerable similarities between the apparatus envisaged by the
patent and the appellants’ swivel holster is insufficient to establish an
infringement. In order for that to be the case::
‘The patentee must show that the defendant has taken each and every one of the essential
integers of the patentee’s claim. Therefore if, on its true construction, the claim in a patent
claims a particular combination of integers and the alleged infringer of it omits one of them
he will escape liability.’12
Thus in Rodi & Wienenberger AG v Henry Showell Ltd 1966 RPC 441 (CA) at
467, a passage cited with approval by this court, inter alia, in Raubenheimer &
another v Kreepy Krauly (Pty) Ltd & another 1987 (2) SA 650 (A) at 656I-
657B, it was stressed that if the language the patentee has used:
‘. . . 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 it obtains is for that
specified combination of elements or integers so acting in relation to one another ─ and for
nothing else. 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 manner claimed.’

[29] As integer [l] of the first claim is not present in the appellants’ holster,
the court a quo therefor erred in concluding that the patent had been infringed.
Consequently, the respondents’ claims relating to the alleged infringement – set
out in para (c) of the order a quo – must be set aside. However, paras (a) and (b)

12 Populin v H B Nominees (1982) 41 ALR 471 quoted by Harms op cit at 263.

of that order which relate to the counter claim and the validity of the patent
were not challenged on appeal and must stand.

[30] In regard to costs, the appellants have been successful and are entitled to
their costs of appeal. In respect of the costs in the court below, each side has
ultimately enjoyed a measure of success – the appellants have successfully
resisted the relief the respondents sought against them while the latter
successfully defended the validity of their patent. As suggested by counsel for
the appellants, an order that the parties should bear their own costs is
appropriate in these circumstances.

[31] It is therefore ordered as follows:
1  The appeal succeeds, with costs.
2  Para (c) of the order of the court a quo is set aside and is substituted with the
following:
‘(c)(i) The plaintiffs’ claims flowing from an alleged infringement of South
African Patent ZA 98/6778 are dismissed.
(ii)
The parties are to bear their own costs.’

_______________________
L E Leach
Judge of Appeal

Appearances:

For the Appellant:

A J Bester SC
Instructed by:

Spoor & Fisher, Pretoria

Phatshoane Attorneys, Bloemfontein

For the Respondent:

G D Marriott
Instructed by:

Adams & Adams, Pretoria

Honey Attorneys, Bloemfontein

THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

MEDIA SUMMARY

From:  The Registrar, Supreme Court of Appeal
Date:  15 December 2016
Status:  Immediate

Please note that the media summary is intended for the benefit of the media and does not form
part of the judgment of the Supreme Court of Appeal

Neutral citation: Pasadena v Resca (137/2016) [2016] ZASCA 204 (15 December 2016)

The issue in this matter is whether a lockable holster manufactured by the first appellant and
disposed of by both appellants infringes patent ZA 98/6778 of which the respondents are the
joint registered proprietors. The respondents had successfully sued the appellants in the Court of
the Commissioner of Patents which concluded that the respondents’ holster infringed the patent.

On appeal, the Supreme Court of Appeal today concluded otherwise. It held that in order for
there to be an infringement of the respondents’ patent, there had to be shown that each and every
essential integer of the patented invention was present in the holster made and disposed of by the
appellants. On the facts of this case, it was held that an essential integer, namely a second
camming surface which, should there be an unauthorised attempt to withdraw a firearm from the
holster, operated to cause a locking mechanism to be inserted deeper into the holster and lock the
weapon more securely, was not present in the appellants’ holster.

The Supreme Court of Appeal therefore upheld the appeal and set aside the order of the court a
quo to the extent that it found that there had been an infringement of the patent.

---ends---