Securing non-infringement declarations


Mitzi Coertzen

In Camworth Technologies Ltd v Videx Wire Products (Pty) Ltd, the Supreme Court of Appeal heard an appeal from the Court of the Commissioner of Patents, where the respondent, Videx, had successfully obtained a declaration of non-infringement in terms of Section 69(1) of the Patents Act.

There was no dispute between the parties that the procedural requirements of Section 69(1) of the act were complied with. In terms of that section the patentee had failed to give an acknowledgement of non-infringement. The dispute was whether the Videx product, a preload device or pot used in mining, infringed the Camworth patent by falling within the ambit of any of the claims of the patent.

In order to assess infringement, the patent specification and, more specifically, the patent claims have to be construed. In South Africa, a purposive construction is used, and the patent claims are broken down into their essential integers. Only when all the essential integers of a claim are present in a product does the product infringe the patent in question.

The Camworth patent comprises seven claims directed towards a preload device, of which claims two to six are dependent on claim one and claim seven is a so-called omnibus claim. The court therefore had to consider only claim one of the patent. If claim one of the patent is not infringed, none of the remaining claims will be infringed.

Non-infringement declarations, patents, Camworth Technologies Ltd v Videx Wire Products (Pty) Ltd, Supreme Court of Appeal of South Africa