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In an action for infringement for a patent registered in respect of a kettle having multiple spaced apart heat sensors, the court found the patent valid and infringed.

Judgement was handed down on 22 September 2015 in the case of Strix Limited v Nu-world Industries (Pty) Ltd where the Supreme Court of Appeal (‘SCA’) was met with a belated attempt to introduce a defence of obviousness which was not pleaded and furthermore expressly abandoned in the court a quo. The court disregarded an attempt to introduce the belated defence by the respondent and found against the respondent on the novelty attack on the patent. The SCA further found the patent to be infringed by the kettles being sold by the respondent.

The rationale of the court’s decision not to allow the defence of invalidity on the basis of lack of inventiveness (obviousness) of the patent emanated from various well-known legal principles. The court held, amongst others, that the evidence before the court was insufficient to sustain the defence of obviousness, because evidence of a different nature is required for the court to come to the correct conclusion. In light of the fact that the specific defence of obviousness was never pleaded and that the case was never conducted on that basis, the court held that it would be prejudicial to the appellant should the defence be allowed.

Every party is entitled to a fair trial in terms of section 34 of the Constitution and thus the entire litigation process, from the initial summons through to the trial must comply with the principle of fairness. The right to a fair trial includes “a proper ventilation of the dispute before a competent tribunal”.

The Constitutional Court heard Alexkor Ltd & another v Richtersveld Community & others in which a point in limine was raised as to whether it was open to the appellant to revive an issue on appeal. The court sought refuge in the applicable rule enunciated in Paddock Motors (Pty) Ltd v Ingesund, which provides that a new point of law which does not introduce new matter into the case may be allowed by a court of appeal. The rationale behind this rule is that “if the contention the appellant now seeks to revive is good, and the other two bad, it means that this Court by refusing to investigate it, would be upholding a wrong order.”  However, there is a caveat to the rule – the contention may only be revived if it is covered by the pleadings and the evidence and if its consideration involves no unfairness to the other party. Thus the rule ultimately provides for two prerequisites – no new factual issues may be raised and there must be no prejudice to the other party.

In Knox D’Arcy AG and another v Land and Agricultural Development Bank of South Africa, the SCA restated the principle that litigants must plead material facts relied upon as a basis for the relief sought and define the issue in their pleadings to enable the parties to the action to know what case they have to meet. Thus the court on appeal cannot decide issues that had neither been raised nor fully ventilated previously.

It is thus clearly evident from the above Constitutional Court and SCA case law that the precedent is set for comprehensive pleading ab initio and that it is of paramount importance. So before the pot starts calling the kettle black, it should make sure that the statement to that effect is properly pleaded from the onset, and not introduced only on appeal.

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