South Africa: Supreme Court of Appeal

In my view, therefore, the Commissioner's inter
pretation

14

pretation of para (a) was wrong. It accordingly becomes

necessary to consider the other issues which were raised in

these oppositions., and it is unfortunate that this Court has

not had the benefit of the Commissioner's views on these

matters.

I shall deal with the two applications separately.

beginning with application No 77/2681 to which was devoted

the greater part of the argument on appeal.

PATENT......

15
PATENT APPLICATION No 77/2681
The effective date of this application was 4 May

1977. A complete specification was filed on 24 April 1978,

claiming a bottom discharge hopper rail car. It was adver-

tised as open for inspection on 27 December 1978. On

27 March 1979 the opponents filed a Notice of Opposition on

the single ground that the invention was obvious. On 15

May 1979 the patent agents acting for the opponents addressed

a letter to ROTAQUE's patent agents in which they enclosed

a copy of a. drawing described as "Rollamatic Engineering Draw-

ing No 330"and stated that hoppers constructed in accordance

with the drawing had been used at BUFFELSFONTEIN GOLD MINE

and that ROTAQUE was aware of this in July 1975. They

advised....

16

advised that they had been instructed to include in the

Notice of Opposition the grounds of lack of novelty and

material misrepresentation; and stated that unless they

were advised within one month that the patent application

had been withdrawn, they would proceed without further notice

in accordance with their clients' instructions.

Presumably as a result of this letter, ROTAQUE

wrote on 28 June 1979 that an amendment to the specifica-

tion would be sought in terms of a copy of the notice of

amendment included in their letter. An application to amend

the complete specification was filed on the same date, and

this was duly granted. The nature of the amendment appears

sufficiently for present purposes from claim 1, which after

amendment reads:

"1. A......

17

"1. A bottom discharge hopper rail car comprising a hopper body fixedly mounted on a chassis, (and) a door mounted on the body for pivoting about a first axis, and an arm for displacing the door with respect to the body, the arm being movable by a roller rotatable about a second axis passing substantially through the first axis, when the roller engages a suitable cam track, in use, the body having a pair of downwardly converging, laterally spaced side walls the longitudinally extending lower edges of which define a discharge opening from the body, both side walls sloping and the angle of one side wall with respect to horizontal being different to the angle of the other side wall with respect to horizontal, and the door being displaceable with respect to the body between a position in which it closes said opening and a position in which it is spaced from said opening to permit discharge of the -contents of said body."

(By the amendment the word and which had appeared in the

original

18

original claim was deleted, and the words underlined were

inserted.) The effect of the amendment was to narrow the

claim by the addition of the feature described in the passage

underlined. This feature calls for a specific geometric

relationship between an arm which displaces the hopper

door and the door pivot. It will, for the sake of brevity,

be referred to hereinafter as "the axis feature").

After, various amendments, the Notice of Opposi-

tion in its final form was filed on 27 March 1979. On

13 February 1980 ROTAQUE filed its Counter-Statement. Both

sides filed a number of affidavits in support of their re-

spective contentions.,

The opponents raised three grounds of opposition

to......
19 to the application, namely -

"A. That the invention claimed in Claims 3,

5	(in so far as it depends on claim 3),
6	(in so far as it depends on claims 3 and 5) and 7 (in so far as it depends on claims 3,5 and 6) were not new at the effective date of the application, namely the 4th May, 1977.

B. That the application contains a material
misrepresentation.

C. That the invention is obvious in that it
involves no inventive step having regard
to what was common knowledge in the art

at the effective date of the application."

(Claim 3 is for a "hopper structure comprising a body" and it includes the axis feature).
I shall deal with each of these grounds in turn. GROUND A - LACK OF NOVELTY

The particulars furnished in support of this

ground of opposition were the following:

"Ad Ground A

(1) Prior to the 4th May, 1977, hoppers

falling

20
falling within the scope of the claims cited in this ground of opposition were in use on West Rand Consolidated Mines Limited (situated at Krugersdorp, South Africa) and were known to personnel on the mine.
(2) The user referred to in paragraph 1 above was not secret user otherwise than on a commercial scale.
(3) The knowledge referred to in paragraph 1 above was not secret knowledge. "

(The hoppers referred to in para (1) were referred to in argument as the "Westrand hoppers", which will be described in more detail presently).
Although ROTAQUE in its Counter-Statement denied the allegations in paragraph (1), their correctness may be assumed for present purposes. ROTAQUE's real case was

that.......

21

that any knowledge or use such as that alleged was knowledge or use by the Applicant or its agent.

The following facts were not in dispute.

On 29 June 1975 ROLLAMATIC ENGINEERING (PTY) LTD ("ROLLAMATIC"), then a subsidiary of GENERAL MINING, submitted to WEST RAND CONSOLIDATED GOLD MINING COMPANY LIMITED ("W R CONSOLIDATED") a tender for the manufacture and supply of 50 hoppers as shown on a drawing R E 1431 at a price of Rl 595,00 each. In August 1976 W R CONSOLIDATED ordered six of these hoppers, (being the Westrand hoppers). They arrived at the beginning of November 1976, and were used on the mine in trials and experiments. In the course of these, problems were experienced, more particularly in that the door

did

22

did not open satisfactorily in order to discharge the

hopper's contents, and the hoppers fell over at the loca-

tion where the door-opening devices were brought into opera-

tion. As a result, the hoppers were modified by ROLLAMATIC

in November 1976 so as to incorporate the axis feature.

Thereafter trials and ;experiments were continued for several

months.

A further eight Westrand hoppers which were pur-

chased and delivered to W R CONSOLIDATED in about February 1977, are of historical interest only and are mentioned for the sake of completeness.

It was common cause that the Westrand hoppers delivered in November 1976 and modified so as to incorporate the axis feature, fell within claim 3 of the amended specification.

L J

23

L J PRETORIUS, resident engineer at W R CONSOLIDATED

said in his affidavit that problems had initially been ex-

perienced with the six Westrand hoppers in November 1976.

After his return to the mine from his annual leave in

January 1977 he found on inspection that the hoppers were

operating satisfactorily, and he noted that two major al-

terations had been effected, one of which was the modifica-

tion to include, the axis feature.

In support of its case, ROTAQUE relied on the

affidavits of THERON and JOUBERT.

Until his retirement in March 1978, the deponent

THERON was employed by GENERAL MINING as a consulting en-

gineer: he was senior manager of its gold and uranium divi-

sion......

24

sion. In 1973 there was conceived the idea of a "cleaning

train" (or tunnel cleaning system unit) designed to clean

development ends with the distributing unit discharging into

each of the hoppers in the train from above. The train was

composed of hoppers manufactured by ROLLAMATIC in about August-

September 1973. (These hoppers were referred to in argument

as "the cleaning train hoppers", and were illustrated in the

drawing R E 330.) They were made as a result of an oral re-

quest to JOUBERT, who was a director of ROLLAMATIC and

the managing director of ROTAQUE, to manufacture these hop-

pers as experimental hoppers to be tested on behalf of ROL-

LAMATIC and ROTAQUE through the agency of GENERAL MINING at

one......

25

one or more mines administered by it, which mines included

BUFFELSFONTEIN GOLD MINING COMPANY LIMITED {"BUFFELSFONTEIN")

and W R CONSOLIDATED. The cleaning train hoppers were test-

ed at BUFFELSFONTEIN for a short period with inconclusive

results, after which they were stored until the middle of

1975 when they were again tested at BUFFELSFONTEIN until

August-September 1976. The train was then moved to W R

CONSOLIDATED, where tests were continued. This particular

train and its hoppers never proved reliable. In view of

the unsatisfactory results achieved, THERON and VAN

EMMENIS, the then manager of W R CONSOLIDATED, asked JOUBERT

for his assistance once more. JOUBERT agreed to see what

he could do but asked that he be afforded a reasonable period

of.....

26

of technical trial and experiment under mining conditions. THERON said:

"... it was expressly agreed at that time between myself and Mr. van Emmenis on the one side acting in our aforesaid capacities and Mr. Joubert on the other side, acting for Rollamatic Engineering (Pty) Limited, and ROTAQUE that he, Joubert, would have designed and made the hoppers in question which would then be put on technical trial and experiment for and on behalf of Rollamatic Engineering (Pty) Ltd and ROTAQUE for at least six months under Mining conditions through the agency of General Mining and Finance Corporation Limited or one or more of the mines administered by it and, more particularly, one such mine, i.e. West Rand Consolidated Gold Mining Company Limited. As pointed out above, I consider such a period of six months, or even longer, to be reasonable for the technical trial and experiment involved."

THERON

27

THERON stated further that thereafter ROLLAMATIC made and

supplied hoppers for two cleaning trains (one being the

batch supplied in November 1976) for these technical trials

and experiments which were carried on well after the six

months period- (These hoppers were the Westrand hoppers.)

The affidavit of JOUBERT was along similar lines.

He said in addition that no one at W R CONSOLIDATED or else-

where was told of the introduction of the axis feature which

could not be recognized or appreciated by mere observation

but would require careful and accurate measurement to es-

tablish its presence. He accordingly denied that the axis

feature could be or was "noted" by PRETORIUS as alleged in

his affidavit.

This.....

28

This evidence of THERON and JOUBERT was disputed in affidavits filed by the opponents, but no application was made for the hearing of oral evidence or for cross-examination of any of the deponents concerned. It was common cause that any real, genuine or bona fide dispute of fact had to be resolved by reference to the onus, which was admittedly on the opponents. In these circumstances a ground of opposition could be upheld only if the facts as stated by ROTAQUE, together with the admitted facts in the opponents' affidavits, justified such an order. Cf. Plascon-Evans Paints v Van Riebeeck Paints, 1984(3) SA 623 (A) at 634-635.
Counsel for the opponents placed emphasis on the fact that the hoppers concerned were purchased by W R CONSOLIDATED from ROTAQUE and paid for in the course of a commercial transaction. That is so, but it is not necessarily inconsistent with the evidence that the hoppers were

acquired

29

acquired and used by W R CONSOLIDATED in order to perform trials and experiments on ROTAQUE's behalf. JOUBERT said in his affidavit that -

"Although payment was received for the manufacture of the hoppers, it was clearly understood and accepted by all parties to the transaction that they were merely experimental hoppers which were to be subjected to the aforesaid reasonable technical trial and experiment."

Consequently this is not a circumstance which would lead in itself to a rejection of the evidence of THERON and JOUBERT.
(It may be that ROLLAMATIC, in manufacturing and selling the Westrand hoppers, "worked" the invention within the meaning of para (b) of the definition of "new". This, however, was not part of the opponents' case and it was not

investigated ....

30

investigated in these proceedings.)

On the papers, therefore, the knowledge and use

of the six Westrand hoppers by W R CONSOLIDATED cannot be

regarded as knowledge and use otherwise than by ROTAQUE's

agent. In consequence the opponents failed to discharge

the onus of proving that novelty was destroyed, thereby.

GROUND B - MATERIAL MISREPRESENTATION

In summary, the case for the opponents in relation

to this ground was the following: Claims in the specification

prior to its amendment had been anticipated before 4 May

1977 in a drawing No R E 330,published by ROLLAMATIC, and

by hoppers made in accordance with that drawing (the cleaning

train hoppers). At the time patent application No 77/2681

was.....

31

was filed, ROTAQUE had knowledge of such publication and

use. That notwithstanding, ROTAQUE declared in Patents

Form 1 filed in support of the patent application:

"To the best of our knowledge and belief there is no lawful

ground of objection to the grant of a patent to us on this

application ..." This declaration, it was alleged, was

a misrepresentation and was material.

Most of this was disputed by ROTAQUE and its de-

ponents. It is not, however, necessary to go into the dis-

puted matters of fact, because in my opinion once a complete

specification has been amended, the court will not investi-

gate matters such as those raised by the opponents.

Counsel for the opponents referred to the decision

in Dresser Industries Inc v South African Inventions Develop-

ment.....

32

ment Corporation, (1982) 9 BP 317. That was an application in the Court of the Commissioner of Patents for the revocation of a patent. One of the grounds of revocation was that the application for the patent contained a material misrepresentation. In the course of the proceedings an application was made for leave to amend the patent specification. If the proposed amendment were to be made, the statement in the application that was originally false, would become true. The Commissioner of Patents (McEWAN J) said (at 330C-D) that he was not satisfied that that was the proper way to overcome the patentee's difficulty:

"An applicant in patent matters is expected to show the utmost good faith ... and ... it seems to me to be too

late

33

late to attempt to remedy the situation after an applicant has been caught out in a falsehood."

No doubt a court has a discretion to refuse an amendment to a patent specification which is aimed at curing invalidity on the ground of material misrepresentation. (See Blanco White, Patents for Inventions, 4th ed., pp. 298-299; Terrel on the Law of Patents, 13th ed., p. 221).
That, however, has no bearing on a case such as the present, where the amendment has been granted. Once granted, an amendment is final and cannot be brought into question. It can only be set aside under ss.(10)of s. 51 of the Patents' Act, No 57 of 1978, which provides that -

"Any

34

"Any amendment of a specification made in conflict with the provisions of this section, other than an amendment allowed by the commissioner of a court, may be set aside by the commissioner at any time on application made to him."

(There was no similar provision in Act No 37 of 1952, Cf. Amalgamated Packaging Industries Ltd v Hutt and Another 1975(4) SA 943 (A)).
The effect of the amendment of the specification is that the amended specification now stands in the place of the specification before amendment, which is of merely historical interest.

Having regard to the amendment, it cannot now be said that "the application contains a material representation" (para (i) of s. 23(1) of Act No 37 of 1952).

It......

35
It was submitted on behalf of the opponents that

if an applicant for a patent is guilty of recklessness

or mala fides, the court will visit its displeasure upon

him by refusing to grant a patent on his application.

Reliance was placed on Willows Francis Pharmaceutical Pro-

ducts Ltd v Aktiebolaget Astra Apotekarnes Kemiska Fabrieker,

1960 (3) SA 726 (A) at 738. That case provides no support

for such a proposition. What STEYN C J said in the passage

cited was that mala fides or recklessness would be circumstances

showing that a proposed amendment should not be allowed.

In terms of s. 23 (1) notice of opposition to the grant of

a patent might be given "on any of the following grounds

and no others". That leaves no room for a claim that the

court......
36

court may refuse a patent application in order to visit

its displeasure on the applicant.

The conclusion is that the opponents failed to

establish ground of opposition B.

GROUND OF OPPOSITION C - OBVIOUSNESS

As is usual when obviousness is pleaded, no par-

ticulars were given of this ground. In its Counter- State-

ment ROTAQUE denied that the invention was obvious as

alleged.

An enquiry into the alleged obviousness of an

invention -

"... involves determining, firstly, what the common knowledge in the art was at the effective date of the patent in suit, ...; secondly, whether the invention

claimed was a step forward on such common knowledge; thirdly, whether, in the

light.....

37

light of such common knowledge that step was inventive, i.e., not obvious."

Gentiruco A.G. v Firestone S A (Pty) Ltd, 1972(1) SA 588 (A) at 653 G-H.
The opponents say that the cleaning train hoppers ( i.e., those made in accordance with drawing R E 330 and used in the cleaning train at BUFFELSFONTEIN between 1973 and 1976) were common knowledge in the art. This is disputed by ROTAQUE, but it may be accepted for the purposes of the present enquiry.
It may also be accepted for present purposes that before its amendment, the cleaning train hopper fell within claims of the specifications. The feature introduced by the amendment by way of limitation into claim 1, namely, the axis

feature
38

feature, was, it is clear, a step forward on such common

knowledge. The question is, whether that step was ob-

vious.

The opponents relied mainly on the affidavit of

STANLEY LOUIS CRAIB, the chief consulting mechanical and electrical engineer of GENERAL MINING at the relevant time. He said that as at 4 May 1977, it would have been clear to any person skilled in the art

"...that theoretically the direction of the line of force acting in a roller or a door displacing arm of a bottom discharge hopper having a radial door should preferably be at a right angle to a line passing through the door fulcrum point and the centre of rotation of the wheel and should, moreover, be applied at a point which is the centre of the roller bearing."

Professor ...

39

Professor Visser of the University of Pretoria, who furnished an affidavit to ROTAQUE, said that this theoretical principle (which he referred to as the Principle of Moments) should be known to any design engineer. He pointed out, however, that the fact that a theoretical principle is known does not make for a practical design. Knowledge of basic theory is a necessary but not a sufficient condition for the production of a successful design. The specific feature involving the direction of the force on the door is one of the contributing factors: the invention claimed does not rest on a single integer but on the totality of several integers combined in such a way as to result in a successful product.

The

40
The present was not a case of the simple addition

of a well-known feature to a known hopper. It was a true

combination: the integers interact to produce a common re-

sult (See Blanco White, op. cit. p. 119).

The combination was a new one. JOUBERT's evidence

was that bottom discharge hoppers known before the produc-

tion of the new feature had been unsuccessful, more par-

ticularly in not properly discharging their contents at the

unloading, point and in falling over at the location where

the door opening devices were brought into operation.

Since the introduction of this feature, these defects have

been overcome and hundreds of hoppers having the combination

of features stipulated in the claim have been used with

great.....

41

great success.

The opponents also rely on the so-called Goldfields

hoppers. These were hoppers which were made by GOLDFIELDS

ENGINEERING and delivered to W R CONSOLIDATED on 22 December

1976. The opponents say that these hoppers had the axis

feature and that they aroused considerable interest on the

mine.

Professor Visser pointed out that the Goldfields

hoppers were not of the radial door type: its two doors

were of the swinging door type. The theory of moments, he

said, is valid for radial doors, but it cannot be applied to

the swinging doors of the Goldfields hopper.

The use of the feature in the Goldfields hopper did

not, therefore, mean that its use in a hopper having a

radial.....

41 A

radial door was obvious.

The important fact is that as at 4 May 1977, no

person skilled in the art had designed a successful bottom

delivery hopper having a radial door and incorporating the

axis feature- In the circumstances as they appear from

the papers, the contention that the combination containing

this feature was obvious, would seem to be based on hind-

sight.

In my opinion this ground of opposition has not

been established.

The conclusion is that the opposition to the grant

of patent application No 77/2681 stands to be dismissed.

42

PATENT APPLICATION No 77/1224

The effective date of this application was 1 March 1977. A complete specification was filed on 31 March 1978. The opposition relates to all of the claims, but it is necessary to set out only claim 1 and claim 10.

"1. A bottom discharge hopper structure comprising a pivotally hung door having an abutment surface, a tipping arm pivotally mounted on the door and also having an abutment surface, the arm having a first position with respect to the door in which first position of the arm said abutment surfaces are spaced apart and a second position with respect to the door in which second position said abutment surfaces are in engagement, a fixed latching element, and a face on said arm which face is in engagement with said latching element while said arm is in its first position with respect to the door, the latching element preventing

pivotal

43

pivotal movement of the arm and door about the pivotal mounting of the door until the arm has been pivoted sufficiently far about its mounting on the door towards said second position to take up at least some of the gap which exists between said abutment surfaces while the arm is in its first position.

10. In combination, a cam track and

a hopper structure as claimed in claim

9, said roller engaging on said cam track as the vehicle moves past the cam track, the axis of rotation of said roller being radial to the axis about which said door pivots and the cam track being profiled so that the line of action of the force exerted by the cam track on said element is always tangential to the arc scribed by said arm and said door about the pivotal mounting of the door."

(Claim 9 is for "a hopper structure as claimed in any preceding claim" )

For.....

44

For present purposes, the important feature of the hopper structure claimed in claim 1 is the portion underlined, which will be referred to for the sake of brevity as the "latching element". Claim 10 incorporates the latching element by reference to claim 9 and the preceding claims; and the axis feature , which is the same as the axis feature claimed in patent application No 77/2681 as amended.
In their final Notice of Opposition, the opponents raised three grounds of opposition, namely

A That the invention was not new at the effective date of the application, namely the 1st march, 1977.

B That the application contains a material misrepresentation.

C That the invention is obvious in that it involves no inventive step having regard to what was common knowledge in the art

at
46

("STILFONTEIN"). (The hoppers concerned were referred to as "the Stilfontein hoppers".) They also alleged that -

"(6) Prior to the 1st March 1977, hoppers of the kind illustrated in Rolla-matic Engineering (Pty) Limited's drawing no. 1353 dated the 22nd May, 1975 were delivered to Stilfontein Gold Mining Company Limited by Rollamatic Engineering (Pty) Limited in the ordinary course of business for use on the Stilfontein mine."

In regard to claim 1, DIETER GERHARD LüCK, who
was at the relevant time the development engineer of
GENERAL MINING, described in his affidavit how he came
to apply ther latching means. He said that in the pursuance
of instructions given to him in July 1975, he com
menced

47

menced the erection at BUFFELSFONTEIN of the mechanisms

necessary for the carrying out of a test procedure in con-

nection with a proposed development and cleaning train.

For the purpose there were allocated to him seven seven-ton

single door hoppers of the kind depicted in photographs an-

nexed to his affidavit. During March 1976 the hoppers

were taken underground at BUFFELSFONTEIN and trials were

carried out on the distributor train between March and May

1976. During the testing it was found that the sudden

discharge of some three tons of rock from the distributor

train into the hopper below caused the door to open. To

avoid this, some sort of locking mechanism was necessary.

A fixed latching element, in the form of iron lugs,was ac-

cordingly.....

48

cordingly welded in position as illustrated in the said

photographs. He said that the simple expedient of fixing

lugs in positions as shown "provided the obvious answer."

(Dealing with this evidence in his affidavit JOUBERT said

that neither he, nor,to his knowledge, anyone then employed

by ROLLAMATIC or ROTAQUE had any knowledge of the "latching

means" until he inspected the hoppers concerned on 10 Sep-

tember 1980 after the opposition proceedings had been begun

On such inspection he could see from the appearance and

quality of the welding that it had not been done by ROLLA-

MATIC or ROTAQUE.)

LüCK said that because conditions underground at

BUFFELSFONTEIN were somewhat cramped for the conduct of the

the.....

49

tests, the entire distributor train (comprising the seven

hoppers and the distributor unit) was moved to W R CONSOLI-

DATED where tests took place on surface with reef taken from

the MONARCH shaft.

On LüCK's evidence, therefore, cleaning hoppers

which had been modified by the addition of the latching

means were known prior to the effective date of the patent

application.

In their affidavits THERON and JOUBERT repeated

evidence given in their affidavits furnished in connection

with Application No 77/2681. The cleaning train hoppers

were experimental hoppers used by mining companies adminis-

tered by GENERAL MINING as agents for ROTAQUE. Knowledge

and.....

50

and use of these hoppers, as modified, was, therefore, protected knowledge and use which did not destroy novelty.
In his affidavit CRAIB, the chief consulting mechanical and mining engineer of GENERAL MINING, joined issue on these points with THERON and JOUBERT. He said that it was the cleaning train concept that was being tested, not the hoppers per se.

This dispute of fact cannot be resolved on the papers. Consequently the opponents cannot be said to have discharged the onus so far as knowledge and use of the cleaning train hoppers by BUFFELSFONTEIN and W R CONSOLIDATED are concerned.

LüCK said in his affidavit that persons other than ROTAQUE's agents had acquired knowledge of the cleaning train

hoppers

51

hoppers, namely, personnel of GENERAL MINING and BUFFELSFON-

TEIN "of different professional callings and scientific

disciplines who, I believe, would in turn have dissem-

inated the information to others involved in the industry;

the Inspector of Mines for the Klerksdorp area; an assort-

ment of visitors both from South Africa and from abroad;

and members of the contracting firms connected with the

development."

I do not think that this sort of circumstantial

evidence is sufficient to prove that one or more of the

persons referred to had the requisite knowledge. What had

to be shown was that all of the integers of the hoppers

claimed were known prior to the effective date. Proof of

opportunity.....

52

opportunity to know is not enough. In this regard, it is

not without significance that no affidavit has been submit-

ted from any person (and on LüCK's showing there should

have many such) who acquired knowledge of the invention at

the time and on the occasions to which LüCK deposes.

My conclusion is that the opponents did not establish that

the invention claimed in claim 1 was known or used prior to the effective

date by anyone other than the applicant or its agents.

In regard to claim 10, the opponents relied on

the so-called Stilfontein hoppers, which were illustrated

in ROLLAMATIC's drawing No R E 1353. One hundred of these

six-ton bottom discharge hoppers were purchased from ROLLA-

MATIC and delivered to STILFONTEIN before the effective date

of......

53

of the patent. The evidence for the opponents was that

these hoppers had both the latching element and the axis

feature.

JOUBERT said that the Stilfontein hoppers were

two door hoppers and were therefore completely different

from the single door hopper claimed in the patent. The

opponents sought to answer this by saying that "there is

nothing in the claims of the patent to limit its ambit to

a single door", and that the Stilfontein hoppers do indeed

consist inter alia of "a bottom discharge hopper structure

comprising a pivotally hung door ..."

In regard to the first point, I do not agree that

the patent does not claim a single door as an essential

integer.....

53 A integer. It claims in claim 1

"A bottom discharge hopper structure comprising a. pivotally hung door ... a tipping arm pivotally mounted on the door ... the arm having a first position with respect to the door ..."

and so on. That cannot be interpreted as a claim to more than one door.
Drawing No 1353 shows clearly that the Stilfontein hopper has two doors and two tipping arms.
I understood counsel for the opponents to argue that this hopper does have a pivotally hung door, and that the fact that it has the additional feature of a second pivotally hung door, does not mean that it does not anticipate the invention claimed. I do not agree. In a bottom

discharge

53 B

discharge hopper, it is of primary importance that there

be a means of closing and opening the discharge aperture

A Stilfontein hopper with one door would not have such

means. It is not the case that the Stilfontein hopper

has an additional feature: the two door means of closing

and opening is a different feature from the single door

means claimed.

In my opinion,therefore, lack of novelty was not

established.

GROUND B - MATERIAL MISREPRESENTATION

The foundation of this ground of opposition is

the lack of novelty alleged in ground A. The opponents

contend.....

54

contend that ROTAQUE must have been aware of invalidity on that ground, and that it was guilty of material misrepresentation in declaring in the application that to the best of its knowledge and belief there was no lawful ground of objection to the grant to it of a patent on this application.
The purpose of alleging this ground of opposition is obscure. Certainly nothing could be achieved by it. If the ground of lack of novelty failed, this ground would fall with it; if it succeeded, it would be unnecessary to consider this ground.
In the event the ground of lack of novelty has failed. GROUND C - OBVIOUSNESS

In
55

In respect of this ground the evidence was directed to the axis and the latching element features.

For the reasons given in connection with patent application No 77/2681 the axis feature had not been shown to have been obvious.
In regard to the latching element, the opponents relied on the evidence of LüCK above referred to, and also on the revidence of McMILLAN, who said in his affidavit that this feature was present in the Stilfontein hoppers.
In his affidavit, JOUBERT denied that the latching element was common knowledge in the art as at 1 March 1977.

LüCK.....

56

LüCK said that he considered that the use of the latching

element was a simple expedient and that it provided the

obvious answer to the known problem. JOUBERT pointed out,

however, that neither LüCK himself, nor CRAIB, nor PRETORIUS

asked ROLLAMATIC to make this modification to the two sets

of six and seven Westrand hoppers delivered at the end of

1976, and the first part of 1977. There is force in

JOUBERT's argument that it is clear from the omission that

it was not obvious to persons in the art to incorporate

this element in such hoppers before or at 1 March 1977

Nor do I think that it was proved that the use of the

latching element on the Stilfontein hoppers meant that it

was common knowledge in the art.

This.....

57
This ground of opposition fails.

The opposition to the grant of patent application

No 77/1224 stands to be dismissed.

ORDER

1. (a) The appeal in respect of Patent Application No

77/2681 is upheld with costs, including the costs

of two counsel.

(b) The order of the Commissioner of Patents is set

aside and there is substituted therefore -
"The opposition is dismissed and the application

for a patent is granted with costs on the Supreme

Court scale."

2. (a) The appeal in respect of Patent Application No

77/1224.....
58

77/1224 is upheld with costs, including the costs

of two counsel.

(b) The order of the Commissioner of Patents is set

aside and there is substituted therefor

"The opposition is dismissed and the application

for a patent is granted with costs on the Supreme

Court scale."

H C NICHOLAS, AJA
CORBETT, JA HOEXTER, JA VAN HEERDEN, JA GALGUT, AJA

Concur