(c)
in which the top end of the pole includes a flexible section of fibreglass or the like which tapers to a
narrow diameter.
Claim 3
A flag construction according to claim 2
(d)
in which the tapered section is integral with the pole;
Claim 4
A flag construction according to claim 3
(e)
in which the material includes a seam or sleeve along one edge, into which the tapered end of the
pole is slided;
Claim 5
A flag construction according to any of claims 1 to 4
(f )
including the combination of,
(i) an inverted Ushaped section;
(ii) with an inverted teardropshaped piece of material;
Claim 6
A flag construction according to any of claims 1 to 5
(g)
in which the pole is adapted to rotate about its own axis;
Claim 7
A flag construction substantially as described with reference to the accompanying drawing.
With regard to the construction of the claims it is common cause that none of the words used has a special
or technical meaning and that there are no surrounding circumstances which would affect the meaning of the
words used in the claims. The words must be construed in the context in
Page 213 of [2006] 3 All SA 206 (T)
which they are used in the patent specification Aktiebolaget Hässle case (supra) paragraph 1.
[12] The defendant contends that the banners manufactured and sold by it do not infringe the claims of the
patent because integers (b)(iii) and (b)(iv) are not present in the banners. Integer (b)(iii) is not present
because the pole of the banner is not adapted to engage at least a portion of the upper periphery of a piece
of material and integer (b)(iv) is not present because the pole is not adapted to maintain the material under
tension. The plaintiff contends that both integers are present. It will be remembered that the plaintiff does
not contend that any special meaning must be given to the words of the claims.
[13] Integer (b)(iii) requires that the pole be adapted to engage at least a portion of the upper periphery of a
piece of material. The key words are "adapted" and "engage". The appropriate meaning of "adapt" in the
Shorter Oxford English Dictionary is "to make suitable for" and of "adapted" is "fit for or "altered so as to fit".
The appropriate meaning of "engage" in the SOED is "to fasten, attach". The construction of the defendant's
flag has already been described. No part of the pole is adapted to engage the material in the sense that it
has been made suitable for fastening or attaching. On the contrary, it is the material which has been
adapted to engage the pole. The addition of the sleeve makes this possible. Integer (b)(iii), which is clearly
an essential integer, is therefore not present in the defendant's flag. The defendant's flag therefore does
not infringe the plaintiff's patent.
[14] Regarding integer (b)(iv), the evidence shows that tension in the area referred to is not maintained by the
pole alone. Bailey conceded that the tension is produced by three factors. The first is the pole itself. Because
of its tendency to straighten it pulls the material which becomes taut. The second is the cord pulling the
material towards the bottom of the pole. This prevents the material from slipping up the pole resulting in a
loss of tension. The third is the cord running along the edge of the material from the tip of the pole to the
base. This helps to keep the material taut. Despite the concessions made by Bailey, it is clear that the pole is
tapered so that it will follow the bend in the material but it will still tend to straighten and this produces
tension in the material. It is this feature that maintains the tension in the material in the area described in
the integer. The pole is therefore adapted to maintain the material under tension in the area described. This
integer is present in the defendant's banner.
[15] The absence of one integer is sufficient to defeat a claim of infringement. It is therefore not necessary to
consider the defendant's defences based on the nonregistrability of the patent.
[16] Design rights
In terms of section 20(1) of the Designs Act the registered proprietor has in the Republic, subject to the
provisions of the Act, for the duration of the registration, the right to exclude other persons from making,
importing, using or disposing of any article included in the class in which the design is registered and
embodying the registered design or a design not substantially different from the registered design, so that
he shall have and enjoy the whole profit and advantage accruing by reason of the registration.
Page 214 of [2006] 3 All SA 206 (T)