In the matter between African Explosives Limited and Sasol
Dyno Nobel (Proprietary) Limited the Commissioner of Patents
was tasked to adjudicate whether two amendments of the claims of
Sasol's patent should be allowed, or set aside. The patent in
question is South African patent number 1991/2194, entitled
"Low-energy blasting initiation system and surface connection
thereof", granted on 29 January 1992. The Registrar of Patents
granted the first amendment on 14 August 1992 and the second
amendment on 25 May 2004.
In bringing the application, African Explosives contended that
the first amendment should be set aside because it fell foul of
section 51(7) of the Patents Act no 57 of 1978 ("the
Act"). Section 51(7) stipulates that "No amendment of
a complete specification ... shall be allowed if the specification
as amended would include any claim not wholly within the scope of a
claim included in the specification before amendment". It
was argued that the substitution of the words "surface
connection" with "surface connection block" served
to broaden the scope of the first claim, thereby contravening the
provisions of section 51(7). African Explosives stated that
"connection" means the stated of being connected, and a
claim directed to a "block" is restricted to a block and
did not extend to components which are connected to the block, or
which were connected to one another by means of the block.
On behalf of Sasol it was argued that the word
"connection" has two meanings, firstly, "being
connected", and secondly, "a connecting part". On a
proper reading of the specification, as originally filed, the word
"connection" has the aforementioned second meaning of
"a connecting part". A "connection" included,
but is wider in scope than a "connector block" and as a
result after the amendment claim 1 was fully within the scope of
claim 1 of the specification as originally filed, albeit narrower
The court held that on an ordinary grammatical reading, the word
"connection" meant a connecting part because, if read in
context, it comprised or consisted of certain features. These
features are particular to an object and not to "a state of
connection". The connection was a connecting part which is
narrower than a connector block. The court accordingly held that
the specification, as amended, thus did not include any claim not
wholly within the scope of a claim included in the specification
In respect of the second amendment, African Explosives contested
that the amendment was made in conflict with the provisions of
section 51(6) of the Act which reads "No amendment of a
complete specification ... shall be allowed if (a) the effect of
the amendment would be to introduce new matter or matter not in
substance disclosed in the specification before the amendment; or
(b) the specification as amended would include any claim not fairly
based on matter disclosed in the specification before
It was contended by African Explosives that, after amendment,
some components of the invention were, in the claims, attributed
specific features and lay-outs which were not disclosed in the
specification before amendment. Therefore, as far as those claims
were concerned, the specification included new matter and was not
fairly based on matter before amendment. In its answer, Sasol
denied the allegations raised by African Explosives, and relied
particularly on the figures of the specification in advancing its
In coming to a decision, the court referred to the case of
Bateman Equipment Limited and Another v Wren Group (Pty)
Limited wherein the Supreme Court of Appeal set out the
test to be applied when considering whether an amendment offended
against section 51(6) of the Act. Firstly, it should be determined
whether the objectionable integer has been broadly described in the
original specification; then consider whether there is anything in
the original specification inconsistent with the integer; and last
whether the original specification is wholly silent on the integer.
The court satisfied itself with regards test put forth above and
held that both amendments were allowable. The court accordingly
dismissed the application with costs.
The judgment is interesting in that it shows that in a patent
litigation matter the result often depends on the interpretation a
court gives to a single word. Every word in a claim should be
chosen carefully as it could potentially take centre stage in a
patent litigation matter.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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