case number patent 984753

8/2/2019 Case Number Patent 984753

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IN THE COURT OF THE COMMISSIONER OF PATENTS

FOR THE REPUBLIC OF SOUTH AFRICA

Date: 2009-01-30

NOT REPORTABLE

Case Number: Patent 98/4753

In the matter between:

GALISON MANUFACTURING (PROPRIETARY)

LIMITED Plaintiff

and

SET POINT INDUSTRIAL TECHNOLOGY

(PROPRIETARY) LIMITED First Defendant

SHOCK PROOF INVESTMENTS 82

(PROPRIETARY) LIMITED Second Defendant

JUDGMENT

SOUTHWOOD J

[1] In this action the plaintiff seeks an order in terms of section 28 of the

Patents Act, 57 of 1998 (the Act) that the first defendant assign to the

plaintiff South African Patent 98/4753 entitled Discharge Rail

Hopper (the patent) and the right to claim damages for past

infringement of the patent:


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Alternatively: an order declaring the plaintiff to be the proprietor of the

patent and

(i) authorising the registrar of patents to enter the name of the

plaintiff in the register of patents as the proprietor of the patent;

and

(ii) granting the plaintiff the right to claim damages for past

infringements of the patent save to the extent that past claims

for such damages have been determined:

Further alternatively: an order declaring the plaintiff and the first

defendant to be joint proprietors of the patent and

(i) authorising the registrar of patents to enter the name of the

plaintiff in the register of patents as joint patentee of the patent;

and

(ii) granting the plaintiff the right, subject to the provisions of section

49(4) of the Act, to claim damages for past infringements of the

patent save to the extent that past claims for such damages

have been determined.


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The plaintiff also claims the costs of suit but no longer seeks the costs

of two counsel. The first defendant (which I shall refer to as the

defendant) disputes that the plaintiff is entitled to any of this relief.

[2] The action is concerned with who is entitled to the patent. The central

issue is whether the plaintiffs two employees, Peter Thorburn

(Thorburn) and Robert Skelton (Skelton), devised the invention of the

patent or whether George Johannes Christoffel Crause (Crause) was

the sole inventor of the invention and was therefore entitled to apply for

registration of the patent. The defendant accepts that if Thorburn and

Skelton devised the invention, they did so in the course and scope of

their employment with the plaintiff and that the plaintiff will be entitled to

be registered as patentee of the patent. If the plaintiff cannot prove

that Thorburn and Skelton devised the invention of the patent then the

plaintiff will not be entitled to any relief. The plaintiff seeks the further

alternative relief only if the court finds that Thorburn, Skelton and

Crause were co-inventors of the invention.

[3] As a result of the formal admissions made in the pleadings and during

the hearing it is common cause that:-

(1) on 3 June 1998 Crause lodged an application for the registration

of the patent;

(2) on 29 December 1998 the registrar accepted the patent;


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(3) on 24 February 1999 the registrar granted the patent;

(4) Crause is recorded in the register of patents as the sole inventor

of the invention disclosed in the patent (the invention), the

applicant for the patent and the original patentee;

(5) the patent was assigned from Crause to Sparrow Mining

Supplies (Pty) Ltd, from Sparrow Mining Supplies (Pty) Ltd, to

the defendant and from the defendant to Shock Proof

Investments 82 (Pty) Ltd, the second defendant.

After the pleadings in the case against the defendant were closed the

plaintiff obtained an order permitting it to join the second defendant as

a party to this action and the plaintiff served copies of the pleadings on

the second defendant. The second defendant did not file a plea. At

the commencement of the trial it was represented by Adv. C. Harms

who informed the court (in chambers) that the second defendant did

not wish to file a plea or participate in the trial and that it is only

interested in the outcome. The second defendants counsel was then

excused from further attendance at court.

[4] The central issue relates to events which occurred between 1995 and

1997. The parties prepared separate bundles of documents which they

intended to use at the hearing. Each bundle is sequentially numbered


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and the documents have item numbers. The parties and the

witnesses usually referred to the documents by their item number

designated P (plaintiffs bundle) and D (defendants bundle) followed by

the page number in the bundle.

[5] As will appear later the versions of the parties as to who devised the

invention are mutually destructive. The plaintiff alleges that its two

employees, Thorburn and Skelton, devised the invention and the

patentee, Crause, was not involved. On the other hand, the defendant

alleges that Crause was the sole inventor and that the plaintiffs

employees were not involved. This is a factual issue on which the

plaintiff bears the onus - Pillay v Krishna and Another 1946 AD

946 at 951.

[6] (1) In National Employers General Insurance Co Ltd v Jagers

1984 (4) SA 437 (ECD) at 440D-H the court considered how the

onus is discharged in cases where the opposing versions are

mutually destructive:

(I)n any civil case, as in any criminal case, the onus

can ordinarily only be discharged by adducing credible

evidence to support the case of the party on whom theonus rests. In a civil case the onus is obviously not as

heavy as it is in a criminal case, but nevertheless where

the onusrests on the plaintiff as in the present case, and

where there are two mutually destructive stories, he can

only succeed if he satisfies the Court on a preponderance


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of probabilities that his version is true and accurate and

therefore acceptable, and that the other version

advanced by the defendant is therefore false or mistaken

and falls to be rejected. In deciding whether that

evidence is true or not the Court will weigh up and test

the plaintiffs allegations against the general probabilities.

The estimate of the credibility of a witness will therefore

be inextricably bound with a consideration of the

probabilities of the case and, if the balance of

probabilities favours the plaintiff, then the Court will

accept his version as being probably true. If however the

probabilities are evenly balanced in the sense that they

do not favour the plaintiffs case any more than they do

the defendants, the plaintiff can only succeed if the Court

nevertheless believes him and is satisfied that his

evidence is true and that the defendants version is false.

(2) In SFW Group Ltd & Another v Martell et cie & Others2003

(1) SA 11 (SCA) at para 5 the court said:

On the central issue, as to what the parties actually

decided, there are two irreconcilable versions. So, too,

on a number of peripheral areas of dispute which may

have a bearing on the probabilities. The technique

generally employed by the courts in resolving factual

disputes of this nature may conveniently be summarised

as follows. To come to a conclusion on the disputed

issues a court must make findings on (a) the credibility of

the various factual witnesses; (b) their reliability; and (c)

the probabilities. As to (a), the courts finding on the

credibility of a particular witness will depend on its

impression about the veracity of the witness. That in turn

will depend on a variety of subsidiary factors, not


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necessarily in order of importance, such as (i) the

witness candour and demeanour in the witness-box, (ii)

his bias, latent and blatant, (iii) internal contradictions in

his evidence, (iv) external contradictions with what was

pleaded or put on his behalf, or with established fact or

with his own extracurial statements or actions, (v) the

probability or improbability of particular aspects of his

version, (vi) the calibre and cogency of his performance

compared to that of other witnesses testifying about the

same incident or events. As to (b), a witness reliability

will depend, apart from the factors mentioned under

(a)(ii), (iv) and (v) above, on (i) the opportunities he had

to experience or observe the event in question and (ii) the

quality, integrity and independence of his recall thereof.

As to (c), this necessitates an analysis and evaluation of

the probability or improbability of each partys version on

each of the disputed issues. In the light of its assessment

of (a), (b) and (c) the court will then, as a final step,

determine whether the party burdened with the onus of

proof has succeeded in discharging it. The hard case,

which will doubtless be the rare one, occurs when a

courts credibility findings compel it in one direction and

its evaluation of the general probabilities in another. The

more convincing the former, the less convincing will be

the latter. But when all factors are equipoised

probabilities prevail.

(3) In Neethling v Du Preez and Others 1994 (1) SA 708 (A) at

800C-D the court emphasised that when the case turns on the

mutually destructive versions of two (or more) witnesses their

relative merits as witnesses are matters of cardinal importance.


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[7] In order to understand the evidence it is necessary to comprehend the

field of the invention: i.e. hoppers.

Hoppers

[8] Hoppers are used extensively in the mining industry for the

transportation of ore. Generally speaking, a hopper consists of a

wheeled chassis and a body mounted on the chassis which has side

and end walls and usually a discharge aperture at the bottom. In the

present case the hoppers have railway wheels and a door at the

bottom which hangs on pivots situated at each end of the hopper.

When the load is to be discharged the door is displaced by an arm

terminating in a roller which is lifted by a ramp alongside the railway

track on which the hopper runs. An alternative means of discharging

ore is by means of a plate (scroll) mounted onto the door of the hopper

which is lifted by wheels positioned next to the railway line.

[9] (1) In 1980 Abraham Petrus Louw Kotze registered patent no

80/7574 (the 1980 patent) entitled Wedge Door Hopper

(D111p220-231). The object of the invention was to provide a

bottom discharge hopper which would minimize the main

problem encountered with existing hoppers: i.e. the bridging of

the load leading to incomplete evacuation and imprecise

dumping of the load which can cause derailment of the hopper

or its successors.


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(2) The patent specification describes the invention as follows:

A bottom discharge hopper according to the invention

includes a container body for broken rock which is fixed

to a wheeled chassis and includes end and side walls

with the lower end of one side wall spaced horizontally

from and vertically above the lower end of the remaining

side wall to define a gravity discharge opening in the

body, a door for opening and closing the opening in the

body including side arms which are pivotally connected to

the body end wall with their pivots in axial alignment at a

position above the opening and the base member which

is fixed to and extends between the side arms with the

base member being inclined to the horizontal at a mean

angle of between 28 degrees and 45 degrees in the

closed position of the door and clear of the opening in the

opened position of the door and means on the door for

moving it between the opened and closed positions.

Preferably the angle of the door to the horizontal is

between 20 and 35 degrees and the base member of the

door is flat.

Further according to the invention the side walls of the

body are smoothly curved with their lower edges which

define their opening converging towards each other.

(3) This description encompasses claims 1, 2, 3 and 5 of the patent.


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(4) Claim 13 is for a bottom discharge hopper substantially as

herein described with reference to and as illustrated in the

drawings.

(5) The end elevation drawing of the hopper (D111p230) shows a

long and a short side wall, both smoothly curved, converging

towards each other with their lower edges defining the opening;

a pivot for the door positioned to the left of the centre line of the

hopper, and a flat door which extends from the bottom of the

long side wall to the bottom of the short side wall. The short

side wall is about half the length of the long side wall which

means that the flat door slopes at an angle of about 35 degrees.

[10] (1) In 1998 Crause registered patent number 98/4753 entitled

Discharge Rail Hopper relating to a bottom discharge rail

hopper for conveying and discharging ore in a mine. (Pleadings

p7-20).

(2) The patent specification describes the invention as follows:

A bottom discharge rail hopper according to the invention

includes a wheeled frame, an open topped container

body which is mounted on the frame and has end walls

which are normal to the direction of the hopper travel, a

first side wall, a door which extends over the length of the

hopper and is pivotally held from the end walls of the

container body to define a base portion and a substantial


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portion of a second side wall of the container body and a

fixed second side wall portion above the door which

extends from the open top of the hopper at an angle

towards the side wall portion of the door in the container

body and means on the door for moving the door from the

first position in which its edge remote from the second

side wall portion of the door closes with the first side wall

and a second position in which the base portion of the

door and the lower portion of the first side wall define

between them a bottom discharge opening from the

container body. Preferably, the container body discharge

opening, in the second position of the door, is positioned

to discharge material from the container body into a tip

between the rails which carries the hopper.

In a preferred form of the invention the pivot axis of the

door is displaced from the vertical centre lines of the end

walls of the container body towards the second side wall

of the body to a position in which the door is caused to be

gravity biased to its first position. The door is

conveniently caused to move outwardly from the position

which it occupied in its first position in moving from its first

to its second position of operation to increase the internal

volume of the container body more easily to release

material in the container body through its discharge

opening.

(3) This description encompasses claims 1, 2 and 3 of the patent.

(4) Claim 9 is for a bottom discharge rail hopper substantially as

herein described with reference to and as illustrated in the

drawings.


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(5) The end elevation drawing shows two side walls, one much

longer than the other and an elongated door, half flat and half

curved, the curved part constituting a large part of the side wall

when in the closed position: the short side wall having a

negative angle (i.e. sloping outwards rather than inwards) and

the pivot for the door to the right of the centre line of the hopper.

[11] The invention of the patent differs from the invention of the 1980 patent

in the following respects:

(1) The short side wall is much shorter and the door is much wider:

the wider door comprises both the door and the remaining part

of the side wall below the short side wall;

(2) The short side wall has a negative angle which creates a space

for the wider door to open into;

(3) The pivots for the door are situated to the right of the centreline

of the hopper: i.e. closer to the shorter side wall and door.

[12] The object of these differences was to improve the invention of the

1980 patent. These differences will be referred to collectively as the

inventive concept.


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[13] Hoppers manufactured in accordance with the 1980 patent were very

successful. Large numbers were manufactured and sold during the

existence of the patent and even thereafter. However, because of the

shape of the hopper bin and the size of the door problems were

experienced with discharging sticky ore such as UG2 platinum ore.

Due to the funnelling effect of the two converging side walls and the

size of the door the sticky ore tended to bridge and not discharge

properly. The inventive concept was an attempt to deal with this

problem. As already mentioned, the issue in this case is who was

responsible for devising the inventive concept.

The Law

[14] (1) In terms of section 27 of the Act an application for a patent in

respect of an invention may be made by the inventor or by any

other person acquiring from him the right to apply or by both

such inventor and such other person. In the present case the

dispute is between persons who each claim to be the sole

inventor.

(2) The parties agree that the powers of the Commissioner to

decide the dispute are to be found in section 28 of the Act which

provides in subsection (1)

Where a dispute arises between persons as to their

rights to obtain a patent for or to make, use, exercise or


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dispose of an invention, or as to the right or title in a

patent, any such party may apply to the commissioner to

decide the matter in dispute, and the commissioner shall

decide the matter in dispute.

(3) The parties agree that there is no South African precedent

dealing with this issue. The plaintiffs counsel referred to the

judgment in Stanelco Fibre Optics Ltds Applications [2005]

RPC 15 (Ch. D) where the learned judge said at 326 lines 12-13

The task of the court is to identify the inventive concept

of the patent or application and identify who devised it

The court is not concerned with issues of validity or

inventiveness: merely with the concept as described.

The defendants counsel does not contend that this statement is not

appropriate on the facts of the present case and it will be accepted as

the proper approach to be adopted to the dispute.

[15] The issue in this case must be considered against the background of

the following facts which are common cause or are not disputed:-

(1) Thorburn has a BSc in Mechanical Engineering and is a

registered professional engineer. He registered the plaintiff

about 31 years ago mainly to manufacture deep-level hard-rock

mining machinery for underground mining operations and to

manufacture mining equipment for surface operations. Before


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he registered the plaintiff Thorburn worked for a company which

conducted business under the name of Welkom Engineers, first

as the manager and then as the managing director. Thorburn

has always been interested in devising inventions which are

useful in the mining industry. Over the years he has devised

some 70 inventions for which patents have been registered

(D90-158). Thorburn is obviously keenly aware of intellectual

property rights and their value.

(2) Thorburn has built up the business of the plaintiff extensively.

The plaintiff still conducts its operations at premises in Welkom

but it now does so in seven very large workshops. The plaintiff

is one of the largest manufacturers of mining equipment

(including hoppers) in South Africa.

(3) Crause qualified as a fitter and turner in 1969 and after obtaining

an Engineering Diploma at the Welkom Technikon entered

employment with Western Holdings, the owner of Western Deep

Levels, where he trained as a mechanical engineer and received

his Government Certificate of Competence in 1973. He worked

as an engineer at No 4 shaft, Western Deep Levels, from 1973-

1978 when he was promoted Divisional Engineer for the Eastern

Section of the mine. He was recognised by his

employers for the equipment he designed for improving

efficiency. Crause continued to work for Western Deep Levels


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for another 10 years. During that period he chaired the

Mines Standards Committee which decides what equipment is

to be acquired for the mine. In 1988 Crauses employment was

summarily terminated. Shortly afterwards he was appointed a

Mining Inspector by the Department of Mineral and Energy

Affairs and the following year (1989) he was appointed Chief

Inspector for the North West region which includes Carletonville

and Rustenburg. He was responsible for the health and safety

of miners and their equipment. He held that position until 2004

when he retired at the age of 56. The normal retiring age is 63.

(4) Crause is the son of Hermanus Johannes Petrus Crause who

was the inventor of the 1980 patent. Crause is the inventor of at

least two patents which have been registered.

(5) Crause, his wife, Elizabeth, and his son, Renier, were, at various

times, involved in Seran Engineering & Supplies CC (now Seran

Engineering & Supplies (Pty) Ltd) (Seran) which supplied

mines with mining equipment. In 1995, after he had completed

his studies as an engineer, Renier Crause started working for

Seran. At about the same time Mick Bear who conducted

business as Complete Projects inter alia supplying hoppers to

mines, decided to emigrate and he gave his business, Complete

Projects, to Renier Crause. From that time Seran conducted the

business of Complete Projects. Complete Projects supplied


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wedge door hoppers (WDHs) made in accordance with the

1980 patent. For a while JMB Engineering made the WDHs but

after it was awarded a very large contract JMB Engineering

decided to stop manufacturing WDHs so that it could

concentrate on the new contract. Complete Projects was

therefore obliged to find another manufacturer for the WDHs.

(6) Towards the end of 1995 or in early 1996 Crause, who had an

interest in the business of Complete Projects, approached the

plaintiff with a view to the plaintiff manufacturing the WDHs.

Crause spoke to Thorburn who insisted on seeing the WDH.

Thorburn had heard of the WDH but had not seen one. Crause

arranged for Thorburn to visit JMB Engineerings premises in

Potchefstroom to see a WDH. Crause impressed upon

Thorburn that it was possible for a WDH to be pushed through

the ramp by hand. This was a big advantage and an important

selling point. Thorburn, accompanied by the plaintiffs managing

director, Gary Wilson, the plaintiffs chief draftsman, Lee Hibbert,

and another employee went to JMB Engineerings premises in

Potchefstroom where Crause showed them how the WDH could

be manually pushed over the ramp causing it to discharge.

Thorburn was impressed by the demonstration and they went to

Crauses house in Potchefstroom where they discussed the

plaintiff manufacturing the WDH for Complete Projects. They

orally agreed, in principle, that the plaintiff would manufacture


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the WDH in accordance with the 1980 patent for Complete

Projects. Crause handed to Thorburn three working drawings

for the WDH which he, Crause, had received from JMB

Engineering. Thorburn took the drawings with him when he left

the meeting.

(7) At the plaintiffs Welkom premises Thorburn and Hibbert

discovered that the drawings were not sufficiently detailed for

the plaintiff to manufacture the WDH. In May 1996 Hibbert

prepared a set of working drawings for the plaintiff to

manufacture the WDH (P32, P32A and P32B p31-33) and on 14

May 1996 the plaintiff received its first order from Complete

Projects for the manufacture of 10 WDHs (P33 p34). Thereafter

Complete Projects placed further orders with the plaintiff for the

manufacture of WDHs and the plaintiff manufactured and sold

WDHs to Complete Projects.

(8) On 21 October 1996 the plaintiff, represented by Thorburn, and

E.C. Crause, Crauses wife, Elizabeth, who was then the

patentee of the 1980 patent entered into a written agreement

(the licence agreement) in terms of which


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(i) Elizabeth Crause granted to the plaintiff, subject to

certain exceptions, the exclusive right in the Republic of

South Africa to manufacture and sell the WDH;

(ii) the plaintiff, in consideration of the rights granted to it in

terms of the agreement, undertook to pay the following

royalties to the patentee

(a) 3 % of the nett sales value of hoppers and spare

parts falling within the scope of the patent;

(b) 5 % of the nett sales value of hoppers falling within

the scope of the patent where the sale was as a

direct result of the intervention of Crause;

(iii) the plaintiff would pay the royalties each month within 30

days;

(iv) it was recorded that

(a) Elizabeth Crause granted to Triangle Engineering

the right to manufacture and sell WDHs falling

within the scope of the patent to Grootvlei

Goldmine Mining Co Ltd for its exclusive use; and


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(b) the plaintiff granted to Complete Projects CC

exclusive selling rights to sell WDHs falling within

the scope of the patent to Eastern Platinum,

Western Platinum and Karee mines;

(v) each of the parties was obliged to communicate forthwith

to the other party all information relating to any

modifications or improvements of the WDHs falling within

the scope of the patent which he/it may come possessed

of during the subsistence of the patent;

(vi) modifications or improvements would not be regarded as

being modifications or improvements to WDHs falling

within the scope of the patent if they were capable of

sustaining an independent patent;

(vii) if the parties agreed that one or more patents of addition

should be obtained to protect any modifications or

improvements, after competent advice had been obtained

by either party, the patents of addition would be obtained

in the name of E.C. Crause;

(viii) the agreement would subsist until the patent expired (D13

p32-36);


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(9) Pursuant to the licence agreement the plaintiff manufactured

and sold WDHs to various purchasers including Complete

Projects and paid royalties to Elizabeth Crause and Crause. On

occasion Complete Projects complained that the plaintiff did not

deliver WDHs on time;

(10) Thorburn always considered the scroll the best and the most

cost-effective means of opening the hopper to discharge the ore

and, in 1997, at the insistence of his sales manager, Rod

McCrae, started investigating a wide door version of the WDH

with a scroll. Hibbert prepared working drawings in September

1997 and on 5 November 1997 Thorburn Consulting Engineers

(Pty) Ltd lodged a provisional specification for this hopper with a

scroll (P40 p41). Thorburn was the inventor. The invention of

the provisional specification was a modification of the WDH. It

had a wider door to increase the size of the discharge opening.

It had a latching system which held the door closed during

transportation and automatically released when the hopper

reached its tip. It had a scroll attached to the terminal edge of

the door next to the lower end of the short sidewall to engage

with wheels mounted alongside the railway line.

(11) On 13 November 1997, without disclosing to E.C. Crause or

Crause that the plaintiff had lodged a provisional specification

Thorburn addressed a letter to Crause regarding an idea which


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we have to enable the WDHs to be used on 3 Wheel Tipping

Ramps. Attached to this letter was a drawing showing the end

elevation of the hopper with the door in the open and closed

positions. The door is extended with a curved portion extending

upwards to the lower edge of the short sidewall. The pivots for

the door are situated to the left of the centre line and the two

sidewalls converge on each other. In the letter Thorburn asked

Crause to comment on three problems: the bulging in the door

as it would be carrying virtually all the rock; the lengthening of

the pivot which would have to be much longer than the standard

wedge door hoppers and the locking device. (P17 p13).

(12) Crause did not respond to this letter.

(13) In about March 1998 the plaintiff prepared working drawings for

the manufacture of Wide Door Hoppers covered by the patent.

On 30 March 1998 the plaintiff completed the working drawing

for wide door WDHs to be manufactured for Eastern Platinum

(P23-25 p20-22).

(14) In about May 1998 the plaintiff prepared working drawings for

the manufacture of the WDH with scroll. On 20 May 1998 the

plaintiff completed the working drawings (P26 p23).


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(15) On 3 June 1998 Crause lodged his application for the patent

and shortly thereafter told Thorburn that he, Crause, had done

so. Thorburn expressed no surprise or concern about the patent

and did not claim that it should have been registered in the

name of the plaintiff because he, Thorburn, and Skelton (or

any other of the plaintiffs employees) had devised the invention

covered by the patent.

(16) From June 1998 until December 2000 the plaintiff continued to

manufacture and sell WDHs to various purchasers including

Complete Projects and paid royalties in accordance with the

licence agreement. The plaintiff also manufactured and sold

wide door hoppers covered by the patent. The plaintiff did not

seek to amend the licence agreement to make provision for the

manufacture and sale of the wide door hopper in accordance

with the patent and the payment of royalties.

(17) On 16 November 2000 Elizabeth Crause on behalf of Complete

Projects addressed a letter to the plaintiff in which she made

proposals for a new agreement for the manufacture and sale of

WDHs and wide door hoppers covered by the plaintiffs patent

no 97/9941 which Elizabeth Crause alleged was a patent of

addition and should have been registered in her name and

should be rectified. She also proposed that the plaintiff offer the

WDH with scroll (in accordance with the patent of addition: no


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97/9941) and Complete Projects the wide door hopper with dolly

arm (i.e the patent) and suggested a mark-up and commission

to be paid by the plaintiff to Complete Projects. There is no

letter from the plaintiff to allege that it is entitled to the patent in

respect of the wide door hopper (D47 p89-91).

(18) On 4 December 2000 the 1980 patent expired and the licence

agreement came to an end. The plaintiff and Crause and

Elizabeth Crause negotiated unsuccessfully to extend or renew

the licence agreement.

(19) Early in 2001 the relationship between the plaintiff and Complete

Projects began to deteriorate and Complete Projects stopped

placing orders for the WDHs and wide door hoppers with the

plaintiff.

(20) On 23 February 2001, Thorburn, on behalf of the plaintiff,

prepared a letter to be handed to potential customers to advise

them of the fact that the plaintiff holds the copyright in respect of

the drawings for the WDHs and wide door hoppers which it had

been manufacturing since May 1996. In the letter Thorburn did

not refer to the plaintiffs patent for the WDH with scroll or the

fact that it claimed to be the inventor of the invention of the

patent (D54 p101);


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(21) On 12 September 2001 the plaintiffs attorneys, Spoor & Fisher,

addressed a letter to Crause to advise him that the patent was

invalid. In paragraph 2 of the letter Spoor & Fisher stated that

The alleged invention claimed in your patent was at best

for you made jointly by Mr Thorburn, Mr Wilson, and

yourself during various meetings with our clients offices

during about March 1998.

In paragraph 3 the letter reiterates that the meetings took place

between Thorburn, Wilson, Hibbert and Crause during March

1998.

Spoor & Fisher then demanded that Crause surrender the

patent and informed him that if he failed to do so the plaintiff

would apply for the revocation of the patent. (D135 p281).

(22) On 26 October 2001, Wilson, the managing director of the

plaintiff, addressed a letter to Crause in which he, on behalf of

the plaintiff, offered to purchase your patent 98/4753 and

offered to pay, in addition, the standard commission as

previously paid to you on all wide wedge door hoppers covered

by the patent for as long as the patent is in force. Wilson also

said the following:

My colleagues have insisted that if this offer is not

accepted by the 02/11/01 it will be withdrawn and Galison


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will continue to take whatever action it has to in order to

ensure its continued involvement in the Wide Wedge

Door Hopper market, in direct competition with you or any

other third party which may be involved, if necessary.

(D76 p150).

(23) Late in 2001 the plaintiff discovered that the Anglo American

Corporation had prohibited a subsidiary, Anglo Platinum, from

purchasing the wide door hopper from the plaintiff. Thorburn

attempted to arrange a meeting with the Anglo American legal

department to deal with the problem. Ms Vangelatos of Anglo

American requested Thorburn to furnish her with a

memorandum to be used as a basis for the discussion. On 14

November 2001 Thorburn addressed a letter and a

memorandum to Ms Vangelatos. In the letter (D79 p156)

Thorburn apologised for the delay in sending the memorandum

and said we felt that it was essential as far as possible, be

absolutely accurate in all of our statements. The thrust of the

(original unmarked) memorandum (D79 p157-160) is that

Crause was not the sole inventor of the invention but that the

plaintiffs personnel contributed substantially to the invention and

that the plaintiff was therefore a co-inventor and entitled to be a

joint patentee or a co-patentee of the patent. The memorandum

states

(i) in paragraph 3 that


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Crause and his son Renier were present at

various times during the experimental phase and

they worked together with Galison personnel to

develop the new hopper with a wider door, i.e. the

hopper which was later to be known as the Wide

Door Wedge Door Hopper. (p157)

(ii) In paragraph 9 that

Although the design of the hopper which formed

the subject matter of the application was a work of

joint collaboration between Galison personnel and

Chris Crause, Chris Crause declared himself to be

the sole inventor of the invention. (p158-159)

(iii) In paragraphs 12.4, 12.5 and 12.6 that

12.4 Chris Crause was not entitled to apply for

the patent because he was not the sole

proprietor of the invention. Galison

personnel contributed substantially to the

invention and are accordingly at least partial

proprietors thereof.

12.5 The application for the patent was made in

fraud of Galisons rights in that the invention

was at least made jointly by Galison

personnel.

12.6 In making the patent application, Chris

Crause knowingly made a false declaration

to the effect that he was the sole inventor.

(p159)


28/65


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plaintiffs employees). The invention was invented by

the aforesaid persons in or about 1996. (Pleadings p4);

(27) On 4 August 2008, at the commencement of the trial, the plaintiff

sought and was granted an amendment of its particulars of

claim. Paragraph 5 now reads as follows

What is recorded in the register notwithstanding, the true

inventors of the invention were Peter Thorburn and

Robert Skelton, who were employed by the plaintiff at the

time that they invented the invention (the plaintiffsemployees), alternatively, the inventors of the invention

were the plaintiffs employees together with Crause. The

invention was invented by the aforesaid persons in or

about 1996. (Pleadings as Amended p4).

[16] Thorburns and Crauses versions of the devising of the invention may

be summarised as follows.

Thorburn

[17] (1) Thorburn first became aware of the WDH when Crause

approached him to manufacture it. He knew of the hopper

called the Mick Bear hopper (which is the WDH) but had never

seen it in operation. Crause approached Thorburn in late 1995

or early 1996. Thorburn knew Crause from his previous job.

They had had quite a lot to do with each other. Crause had

been the Divisional Engineer at Western Deep Levels. He was


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now a senior mining inspector for the Carltonville/Rustenburg

area.

(2) Crause told Thorburn about the 1980 patent.

(3) Thorburn told Crause that the plaintiff was keen to make the

WDH as the plaintiff wanted to expand its hopper market.

Thorburn knew Crause was chief inspector of mines and

wielded enormous power over them. Thorburn thought

that the plaintiff would be able to sell a lot of WDHs particularly

to the Rustenburg mines which mine platinum.

(4) Thorburn wanted to see the WDH and Crause arranged to take

him to see one. Thorburn, Wilson, the plaintiffs chief draftsman,

Lee Hibbert, and one other employee, whose name Thorburn

cannot remember, went to a factory in the Potchefstroom

industrial area. There they found a WDH on rails and a ramp.

Crause emphasised the fact that the hopper could be pushed

over the ramp by hand. Crause and Wilson manually pushed it

over the ramp and the hopper discharged.

(5) This demonstration impressed Thorburn. Afterwards they went

to Crauses house in Potchefstroom. Crause, Thorburn and

Wilson discussed the manufacture of the WDH and agreed in

principle that the plaintiff would manufacture the WDH for


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Crause. Crause gave Thorburn a roll of drawings. There were

three drawings and when Thorburn and Wilson examined the

drawings at the plaintiffs factory they saw that the drawings

were not proper working drawings and they told Crause that

they would not manufacture the WDH without such drawings.

Crause then arranged for a WDH to be taken to the plaintiffs

Welkom works. Hibbert measured the hopper and produced

working drawings with the relevant measurements (P32 p31

dated 14 May 1996).

(6) On 14 May 1996 Complete Projects placed an order for 10

WDHs (P33 order 13217).

(7) On 22 October 1996 the plaintiff and Elizabeth Crause entered

into a written agreement for the manufacture, sale and

marketing of WDHs covered by the 1980 patent. (D13 p32). In

terms of the agreement the plaintiff was given the exclusive

right subject to specified exceptions to manufacture and sell

WDHs covered by the 1980 patent and the plaintiff undertook to

pay royalties to the patentee, E. Crause, and commission to

Crause on sales of the WDHs resulting from his intervention

(clauses 2.1 and 2.2).

(8) Pursuant to the agreement the plaintiff manufactured and sold

the WDHs and paid royalties to Elizabeth Crause and


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commission to Crause. Thorburn considered that it was very

good business.

(9) The licence agreement terminated on 4 December 2000 when

the 1980 patent expired.

(10) This case is concerned with the Wide Door Dolly Wheel Hopper

(referred to either as the WDDWH or Wide Door Hopper) 1998

patent. The patent application was lodged by Crause on the 3rd

of June 1998.

(11) When the plaintiff and Crause agreed in principle that the

plaintiff would manufacture the WDH, Thorburn insisted that he

go underground to see the WDH in operation. Thorburn thinks

this happened on the 11th or 21st of July 1996. They went to

Eastern Platinum Mine, south east of Rustenburg. Thorburn

saw the hoppers in operation. He noticed that they did not

empty properly. It was sometimes necessary for the hopper to

go over the ramp three or four times before it was completely

empty. Thorburn realised that they were on to a good thing if

they could get the hoppers to empty properly. While they were

underground Thorburn said to Crause that they must increase

the door size. By then Crause had been associated with the

WDHs for 16 years and he was not pleased to be told that the

hopper was not perfect. He was very angry with Thorburn.


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Thorburn told Crause that the ore arched and would not come

out. At that stage Thorburn did not know how much bigger the

door must be but thought it must be increased substantially.

Thorburn was not sure exactly what had to be done but knew

that if they put some thought into it they would solve the

problem. After that Crause continued to promote the WDH.

(12) After the underground inspection of the hopper in about

June/July 1996 Thorburn told Crause that he, Thorburn, was not

happy with the door size. However Crause was not keen to

spend money. Thorburn told Crause that the plaintiff would

work out the increase to the door size at no cost to Crause.

Thorburn asked Crause to get two hoppers from Western

Platinum Mine for the plaintiff to work on. Crause did this and

collected two hoppers in July 1996. The plaintiffs truck

collected the two hoppers on 3 July 1996 (P35 p36).

(13) Before they started working on the hoppers Thorburn discussed

the changes with Crause. He told Crause that the plaintiff would

make a bigger door it would be wider and it would slide

upwards, not sideways. This meant that a part of the short side

wall would be cut away to allow for the wider door.

(14) Crauses reaction was that this was an absolute waste of

money. Nevertheless Crause suggested that instead of using


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new material to make the door wider the plaintiff should cut off

the lower portion of the short side and weld it to the door. This

was his sole contribution according to Thorburn.

(15) Thorburn gave instructions to his staff. He told them what he

was trying to do: he wanted to make the door of the WDH

considerably bigger to prevent blocking of the ore. He gave the

work to Bobby Skelton and Joe Jacobs. Skelton was mainly

involved in doing the work. He is a highly skilled boilermaker

and, according to Thorburn, well-versed in the vagaries of

hopper design.

(16) While the plaintiff was effecting the modifications Crause did not

come to the plaintiffs factory.

(17) Skelton got on with the work. Thorburn went to see how he was

progressing every second day or so.

(18) Skelton first cut away about half of the short side of the hopper

(see p230). He then welded this to the door. This part of the

side wall then became part of the door and acted as part of the

side wall.

(19) Skelton then strengthened the door at both ends. He tested the

door by lifting the dolly wheel to open the door. The wider door


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almost immediately crashed with the side wall, it could only open

about 150 mm.

(20) Skeltons solution (after discussion with Thorburn and Jacobs)

was to cut out the remaining part of the side wall, reverse it and

weld it back into place. This narrowed the hopper by 200 mm

but allowed room for the wider door to open. The door could

now open to its full extent. It was important that the door not be

too close to the wall because of the sticky ore it was essential

to get the door to move away from the side wall.

(21) Skelton then moved the pivot point of the door to ensure that the

door moved away from the side wall. He moved the pivot point

at least four times until it was right. After considerable

experimentation Skelton determined that the best place for the

pivot point was to the right of the centre line of the hopper. All

this took about three to four weeks. Skelton overcame all the

problems.

(22) When this was done Thorburn told Crause what they had done.

Thorburn is not sure but he thinks Crause came to look. He

asked the plaintiff to send the hopper back to Eastern Platinum

Mine. The plaintiff delivered it back on 30 August 1996

(P36 p37).


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(23) Thorburn and Skelton invented the invention to Crauses patent

lodged on 3 June 1998. They invented the invention in

July/August 1996.

(24) Development of the Wide Door Hopper stopped in August 1996.

(25) Later, at the insistence of Rod McCrae, the plaintiffs sales

manager, the plaintiff decided to develop a wide door hopper

with a scroll instead of a dolly wheel. The plaintiff widened the

door, left the pivot point to the left of the centre line, put a curved

surface at the top end of the door, lowered the pivot point to

ensure that the scroll engaged with the wheels on the side of the

track.

Crause

[18] (1) In 1995, Crauses son Renier, who had taken over Mick Bears

business, Complete Projects, spoke to Crause about improving

the WDH. He thought they should widen the door so that it

would discharge like the bak hopper. He said that if they could

do this they would have a winner.

(2) Towards the end of 1995 Crause suggested to Renier that they

approach the plaintiff to make the WDH. Thorburn told

them that before he makes the hopper he wants to see what it


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looks like and see for himself that it can be pushed through the

tip by hand. Crause took Thorburn to the JMB Engineering

premises in Potchefstroom where the hopper was shown to him.

Thorburn was quite surprised to see that the hopper could be

pushed through the tip by hand. Crause also explained the

give-way action to Thorburn. The give-way action is the

movement of the door away from the rock when the door starts

to open. The idea is that there is an equilibrium before the door

starts to open. When the hopper goes over the ramp the

equilibrium is disturbed and the door opens easily. The weight

of the ore helps the door to open. Thorburn was interested and

said they must draw up a contract. Crause arranged to give

Thorburn the drawings for the hopper. Thorburn told Crause

that the drawings were not good enough. The plaintiff would

prepare its own drawings. The plaintiff did so and made WDHs

after that. Crause spoke to Thorburn and got him to agree to

make the WDH for his son. The plaintiff started to manufacture

the hoppers at the beginning of 1996. The plaintiff did so before

a contract was signed. On 22 October 1996 the plaintiff and

Crauses wife entered into a written agreement in terms of which

Elizabeth Crause, the patentee, agreed to give the plaintiff the

right to manufacture and sell the WDH covered by the 1980

patent. Thorburn insisted that the patent be in Elizabeth

Crauses name before he entered into an agreement with her.


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(3) Crause says he invented the wide door dolly wheel hopper (i.e.

wide door hopper) in about the middle of 1995 after his son

asked him to assist in making the door of the WDH wider.

Crause took a piece of paper and a pencil and using the WDH

drawing at the back of the 1980 patent tried to show how to

increase the door size. He could make it bigger and it would

work but it would reduce the H factor (i.e. the volume of the

hopper).

(4) In Crauses first drawing (D107 p191) Crause tried to keep the

tip of the door as close as possible to the axle of the hopper.

The top drawing shows the WDH before the door was widened.

The bottom drawing shows the WDH with the widened door.

The change would work but the result (reduced volume) was not

acceptable. Crause considered that there were five important

factors for the hopper to be the ultimate hopper

(i) The hopper must go through the tip easily;

(ii) The hopper must discharge its contents without being

rammed or vibrated especially with regard to sticky

UG2 platinum ore;

(iii) The hopper volume had to be as big as possible taking

the parameters of the mine into account;


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(iv) The pivot point had to be as low as possible it could not

load easily if it was too high;

(v) The hopper must not leak the ore is gold or platinum

bearing and this would reduce the efficiency of the

mine.

(5) Crauses second drawing (D1p10) was his second attempt to

design a hopper with as big an H factor as possible and still

open easily with a give-way action and able to open as easily as

the WDH. This was not practical. There were numerous

disadvantages and big volume was the only advantage. The

disadvantage was that when it was to open it had to move rock

out of the way. It was necessary for the door to move out of the

way (give-way action) but thereafter it came close to the bottom

of the side wall because the bottom of the curve moves up

against the bottom of the side wall. In order to open, the flat

bottom must lift the ore (exhibit D original of D1 p10) (exhibit E

is an enlarged exhibit D with points indicated on it). The door

would have to lift to open and required a big force to do so. It

was therefore not practical.

(6) The drawing in D1 p11 (exhibit F is enlarged with points

indicated on it) makes sure the hopper opens easily by providing


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a negative angle to the sidewall. It also has the maximum

volume and moved the pivot point closer to the door (i.e. to the

right of the centre line) and lower which gives a better give-way

movement. However the top of the door will then collide with the

side wall. The solution for that is to move the pivot point away

from the door. The door then rotates away from the wall. But

he could not do this so he changed the side wall. He turned it

into a short wall with a negative angle. This improved the

operation of the hopper the top of the door moved away from

the side wall. Point A moves away, point B moves parallel and

points B to C do not touch the ore. Points C to D give way and

D to E is the cavity which is additional space for the door.

(7) This hopper was the ultimate size and it was not necessary for

the door to lift or squeeze the ore. Crause prepared the drawing

exhibit F in 1995.

(8) Crause did not patent this invention. Renier had just finished his

studies and Crause wanted Renier to find his feet in the

business. He did not want the additional marketing of a new

product to distract him. He therefore did not attempt to get the

hopper onto the market. Crause only started to take steps to get

the wide door hopper into the market approximately three

months after Reniers death in May 1997. Until his sons death,


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Crause sometimes went to the plaintiff to modify or refine the

WDH.

(9) Crause went to No 1 shaft at Western Platinum Mine and asked

the foreman Jan van Vuuren, the foreman in charge of repairing

hoppers, for a scrap hopper to see if the ideas depicted in

exhibit F could be built into the WDH. Fanie van der Walt went

to Western Platinum Mine and picked up the hopper and took it

to a smallholding at Pretoria North (Strydfontein) to do the

modifications. Glen Scott, a boilermaker employed by Complete

Projects, undertook to do the work. Wayne Wiblin, a sales

representative employed by Complete Projects, assisted Scott.

Crause went to the smallholding and gave Scott instructions

about what modifications were to be done. Crause wanted to

experiment with the hopper as cheaply as possible - to see if the

WDH could be converted into a wide door hopper as depicted in

exhibit F. Crause intended to take the modified WDH to the

plaintiff to use as a model to make a prototype. It would then be

tested and used on the mine. Crause instructed Scott to do the

following

(i) cut off the bottom of the short side wall;

(ii) weld the portion of the side wall, cut off, onto the door;


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(iii) move the pivot point towards the door to get the give-

way action shown in exhibit F. When they did this

Crause noted that the top part of the door crashed into

the top part of the side wall;

(iv) turn around the remaining part of the side wall and give it

a negative angle as shown in exhibit F. The top part of

the door could move into the space behind the side wall.

(10) Scott did all the work in about a week. Crause was there every

day. The work was done by trial and error. They moved the

position of the pivot point a number of times. They did this until

Crause was satisfied. When the work was complete Wiblin

arranged for a truck to take the hopper to the plaintiffs premises

at Welkom. They took the hopper there to show the plaintiff how

the WDHs should be modified.

(11) This was arranged by Crause with Joe Jacobs and Gary Wilson.

The modified hopper was taken to Welkom in July 1997.

Crause went to the plaintiffs premises shortly afterwards to

discuss the modifications. He regularly spoke with Jacobs and

Skelton, the boilermaker, about the modifications. He told them

he brought the hopper as a sample to get the hopper ready for

the market. Jacobs told Crause that the plaintiff could not make

the hopper without proper drawings. Crause explained to


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Thorburn, Wilson and Jacobs how he modified the hopper. He

told them the model was to assist them to make drawings or

modify the WDH. Crause also arranged for a second hopper in

a better condition to be delivered to the plaintiff so that it could

be modified and tested to show that the widened door works

with the WDH. Crause got the second hopper from No 3 shaft

Eastern Platinum Mine (Armand Smit). Crause asked Smit to

lend him the hopper so that he, Crause, could see if he could

solve the discharge problem. Smit agreed. The second hopper

was taken to the plaintiff and the plaintiff modified this hopper in

accordance with the hopper that had been modified at Pretoria

North. It was necessary to obtain the second hopper because

the first hopper was in such poor condition. Skelton effected

these modifications under the supervision of Jacobs. Crause

went to the plaintiffs workshop on a couple of times to explain

how it should be done particularly the positioning of the pivot

point. It took about one month to modify the second hopper.

Crause was very satisfied with the work done.

(12) The second hopper was then taken to No 1 shaft Western

Platinum Mine where Crause got the first hopper. Jan van

Vuuren took it underground to No 7 level. When Crause phoned

a few days later Van Vuuren told him that the dolly wheel had

run off the ramp and that there was a problem. Crause spoke to

Jacobs and they went to Western Platinum Mine to see how to


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solve the problem. They found that people at the mine had

welded a piece of flat plate onto the top of the ramp to widen the

ramp so that the wheel would not fall off. Exhibits B and C

depict the wide door hopper B shows the door closed: C

shows the door open (these to exhibits were made by the

plaintiff shortly before the trial to show what they remember

doing to the hopper).

(13) After this test the wide door hopper was taken to a number of

mines to be tested. It was then returned to Eastern Platinum

Mine. Testing took place between July and August 1997.

Crause now knew that the wide door hopper could be made.

(14) In March 1998 Crause went to the plaintiff to make the wide

door hopper. The plaintiff insisted on preparing drawings and

Lee Hibbert made drawings on the 14 th of March 1998. Before

he did the drawings the plaintiff wanted to be sure that the

hopper was operating properly. The plaintiff wanted to do tests

and experiments. On 30 March 1998 Hibbert completed the

drawings (P23 p20). Crause was standing behind Hibbert when

Hibbert did the drawings. Crause had to assist him with the

drawing - to put the pivot point in the right place. The plaintiff

started to manufacture the wide door hopper in June/July 1998.


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(15) Crause told Thorburn before the 3rd of June 1998 that he,

Crause, was going to register a patent for the wide door hopper.

Crause showed him the drawings of the WDH. Thorburn said

they could put a scroll on it. Thorburns reaction to being told

about the patent was to assist and get the production going.

The plaintiff took out a patent for the wide door hopper with

scroll in November 1997.

Other witnesses

[19] The plaintiff called two other witnesses, Joseph Jacobs, a foreman at

the plaintiffs works and Robert Skelton, a boilermaker. It was not

suggested to Jacobs and Skelton that they were wrong about the

modification of the WDH or that they were fabricating their evidence to

assist the plaintiff. Their evidence may be summarised as follows:

(1) Jacobs

According to Jacobs, the plaintiff started to make WDHs after a

truck brought a WDH to the plaintiffs factory and Lee Hibbert

measured the hopper and prepared drawings for it. Later, after

the plaintiff had manufactured a number of WDHs two WDHs

arrived from a mine and Thorburn instructed them to see how

the plaintiff could widen the door. One of the WDHs was taken

to Skeltons workshop and they told him what had to be done.


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Jacobs left Skelton to get on with the modifications as according

to Jacobs Skelton knows how to get things done. Jacobs was

not physically involved in the modification of the WDH. The

arrangement was that Skelton would consult Jacobs if he,

Skelton, needed advice or authority to proceed. Jacobs knows

that Skelton cut off a section of the side wall which was between

450 mm and 550 mm wide to join to the door. He also knows

that after the side was joined to the door it fouled against the

rest of the side wall and that they agreed to cut the rest of the

side wall out and turn it around. This was Skeltons idea.

According to Jacobs the work was done in July/August 1996.

(2) Skelton

Skelton testified that apart from an absence of about three years

when he worked in Richards Bay, he had worked for the plaintiff

since 1984, i.e. approximately 24 years. His first experience of

a WDH was when he was instructed to install a ramp in his

workshop for a demonstration. Crause brought the WDH to the

premises for the demonstration and after the demonstration the

plaintiff started manufacturing WDHs. Skelton thinks the

demonstration took place in 1996. Some time later, also in

1996, Thorburn told Skelton that problems were being

experienced with the WDH. Ore was getting stuck and not

discharging properly. Thorburn wanted to make the discharge


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opening wider so that the ore would fall out instead of being

beaten out. An old WDH was brought to Skeltons workshop.

Thorburn told Skelton that the door must be made wider for

discharge. Thorburn and Wilson gave Skelton instructions. The

first instruction was to cut off part of the curtain and weld it to the

door. Skelton cut off a section about 450-550 mm wide and

welded it to the door. He then found that the wider door crashed

into the remaining part of the short wall. He then cut off the

remaining part of the short wall and turned it around so that

there was a space for the door to swing into. It was then

necessary to ensure that the door moved away from the ore and

Skelton moved the pivot point to achieve this. He found that the

door worked properly when he moved the pivot point to the right

of the centre line. He found the best position for the pivot point

by a process of trial and error. Once he had done this he called

his superior to give approval.

Skelton met Crause at the demonstration of the WDH. Crause

did not play any part in the modification of the WDH. He,

Skelton, would not take instructions from an outsider or a

customer. He would take instructions only from Thorburn and

Wilson. After receiving his initial instructions from Thorburn he

regularly consulted with Jacobs.


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According to Skelton he did the work during a period of two and

a half to three weeks in July/August 1996.

[20] The defendant called four other witnesses, Glen Scott, a boilermaker

employed by Complete Projects during 1997, Wayne Wiblin, an

electrical engineer who was employed by Complete Projects during

1997, Jan van Vuuren, an engineering foreman employed by Lonmin

Platinum and Johan Rossouw a manager at Lonmin Western Platinum

Mine. Their evidence was not seriously challenged and it was not

suggested to them that they were fabricating their evidence to support

the defendant and/or Crause. Their evidence may be briefly

summarised as follows

(1) Scott

Scott was employed by Complete Projects as a boilermaker in

1997. Towards the end of May/early June 1997 Crause

approached Scott to do certain work on a hopper. Crause

arranged for the hopper to be taken to a smallholding leased by

Complete Projects in Pretoria North. There was a small

workshop there and some tools. Crause told Scott what he

wanted Scott to do:

(i) cut off a piece of the short side wall (Crause indicated the

piece to be cut off by drawing a line along the wall);


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(ii) weld the piece of the side wall cut off onto the door of the

hopper: i.e. widen the door;

(iii) move the pivot point of the door closer to the door this

was done by a process of trial and error; and

(iv) reverse the remaining part of the short side wall.

Initially, after doing the modifications the wider door would not

open fully and it was necessary to move the pivot point again.

After that the door opened fully.

Scott took about five days to do the modifications. Wayne

Wiblin who also worked for Complete Projects, assisted him by

handing him tools and helping him pick up pieces of metal.

When he had completed the work Wiblin told him that someone

would collect the hopper in a day or two. A truck and driver

came and loaded the modified hopper and took it away.

(2) Wiblin

Wiblin is trained as an electrical engineer but was employed as

a sales representative by Complete Projects. He knows that


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approximately three months after the death of Renier Crause in

May 1997 Complete Projects effected modifications to a WDH.

Glen Scott did most of the work. Wiblin helped him. Wiblin

picked up pieces of steel and handed him tools. He did not cut

or weld. Scott did the modifications on a smallholding north of

Pretoria. Complete Projects had a small workshop there. The

work took about a week. Wiblin knows that the following was

done to the hopper

(i) a piece of the wall was cut off;

(ii) the piece of the wall cut off was then welded to the door;

(iii) the remaining part of the wall was turned around;

(iv) the pivot point was moved.

Crause was there. He told Scott exactly what to do where to

cut the wall, how to turn the wall and how to move the pivot

point. Wiblin knew the purpose of the modification as he was

involved in selling the hoppers. He saw the negative angle of

the wall (after it was turned around), the widening of the door

and the moving of the pivot point.


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The hopper was brought to the smallholding from Western

Platinum Mine.

After the work was completed Wiblin arranged for a truck to

collect the hopper and take it away. He telephoned the plaintiff

and arranged for this to be done. A truck came and loaded the

modified hopper and took it away.

Wiblin is aware that the plaintiff modified another hopper. He

went to see it tested at Number 1 Shaft Eastern Platinum Mine.

Apart from Wiblin, Crause was there as well as people from the

plaintiff and an engineer and other people from the mine. Wiblin

saw the dolly wheel of the hopper fall off the ramp. This

demonstration took place in about August/September 1997.

The problem was rectified by modifying the dolly wheel and the

ramp.

[21] In deciding the primary issue of who devised the invention of the patent

it must be borne in mind that the witnesses were testifying about

events which took place between 10 and 12 years previously, a very

long time for a memory to be reliable and accurate even if there is no

motive to misrepresent the facts. In the present case the dispute

involves patent rights which could be worth a great deal of money. It

would be nave not to accept that the main witnesses did not have a

motive to at least colour their evidence so that it would be considered


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more favourably. For these reasons the documentary evidence and

the probabilities play a very important role in assisting the court to

make findings as to the witnesses credibility and reliability. The

documentary evidence is the most objective means of determining

whether the witnesses can be believed and what they say is accurate.

Depending upon the circumstances the probabilities can be equally

important.

[22] The plaintiffs case on the pleadings (as they were finally amended at

the trial on 4 August 2008) is that the true inventors of the invention

were Thorburn and Skelton, alternatively, Thorburn, Skelton and

Crause and that they devised the invention in or about 1996. The

plaintiffs case in the evidence given at the trial in August 2008 is that

Thorburn and Skelton were responsible for devising the invention, that

Crause was not involved at all and that they devised the invention

during a period of two and a half to three weeks during July/August

1996.

[23] This case must be considered against the background of allegations

previously made by the plaintiff and its legal representatives. It is

noteworthy that the plaintiff never alleged that its employees devised

the invention until the plaintiff and Crause and Crauses wife failed to

negotiate a new licence agreement in respect of the WDH and the wide

door WDH (the subject of the patent). Crause filed his application for

the patent on 3 June 1998 and for two to three years the plaintiff failed


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to object to the fact that Crause had registered a patent for the

invention devised by the plaintiffs employees.

(1) On 23 February 2001, Thorburn on behalf of the plaintiff,

prepared a letter To whom it may concern to inform potential

customers of the plaintiffs interest in the relevant hopper (see

para [15] (20)). While clearly intent on clarifying the extent of

the plaintiffs rights in respect of the hopper Thorburn referred

only to the copyright in respect of the relevant drawings. He

said nothing about the plaintiffs rights to the patent or the

invention (D56 p101);

(2) On 12 September 2001 Spoor & Fisher on behalf of the plaintiff

addressed to Crause a letter in which it was alleged for a

number of reasons that the patent is invalid (see para [15] (21)).

The letter states (in para 2) that

The alleged invention claimed in your patent was at best

for you made jointly by Mr Thorburn, Mr Wilson, and

yourself during various meetings at our clients offices

during about March 1998. Thus you were not entitled to

apply for the patent and the patent was granted in fraud

of our clients rights.

and (in para 3) that -


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The alleged invention claimed in your patent was made

available to the public prior to 3 June 1998 by disclosure

to Mr Thorburn, Mr Wilson, and Mr Hibbert during the

March 1998 meetings. Our client subsequently and prior

to 3 June 1998, produced a drawing of the hopper

claimed in your patent and supplied you with a quotation

for manufacturing doors for converting existing hoppers to

the hoppers as claimed in your patent (D135 p281).

The letter demanded that Crause surrender the patent.

There is no mention in this letter of Skelton who effected the

modification and there is only reference to Thorburn and Wilson

and how they devised the invention at meetings in March 1998.

(3) On 26 October 2001, Wilson on behalf of the plaintiff, addressed

to Complete Projects (for the attention of Crause) a letter

containing an offer to purchase your patent 98/4753 for a

once-off lump-sum payment. (See para [15] (22)). The letter

pertinently recorded that if the offer was not accepted the

plaintiff would continue to take whatever steps it had to in order

to insure its continued involvement in the relevant hopper

market. Significantly there was no statement that the plaintiffs

employees devised the invention to the patent and that the

plaintiff and not Crause was entitled to be registered as the

patentee (D76 p150);


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(4) On 14 November 2001 Thorburn on behalf of the plaintiff,

addressed to Ms L. Vangelatos of Anglo American a letter and a

memorandum relating to the issue of who was entitled to the

patent (see para [15] (23)). In the letter Thorburn apologised for

the delay in sending the memorandum to her but explained that

the plaintiff thought it necessary to be accurate in its statements.

In the letter Thorburn states for the first time that the plaintiff

claims that it is the rightful owner of the patent claimed by

Crause (D79 p156). However, in the memorandum, which

purports to set out how the parties devised the invention it is

clear that Crause devised the invention and that the plaintiffs

complaint was that Crause did not give the plaintiff recognition

for these substantial contribution made by certain (unnamed)

Galison personnel. At that stage it was clear that the plaintiff

saw the invention as the work of joint collaboration. The

memorandum also makes it clear that the invention was devised

in mid 1996. It is noteworthy that despite Thorburns avowed

intention of accurately reflecting the facts the memorandum did

not identify the Galison personnel involved or give an exact

date for the devising of the invention. Clearly, at that stage, all

the information was available;

(5) On 8 February 2002 the plaintiff instituted proceedings in this

court for the revocation of the patent in terms of section 61 of

the Act. (See para [15] (24)). Crause was cited as the


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patentee. The plaintiff relied on grounds A-F for the revocation

of the patent. Ground C was that the patentee was not a person

entitled in terms of section 27 of the Act to apply for the patent.

The statement of particulars alleges that the plaintiffs

employees, Peter Thorburn, Gary Wilson and Robert Skelton

devised the claims of the patent during the course and scope of

their employment with the plaintiff, that the plaintiff had not

assigned the invention to the patentee and accordingly that the

patentee is not a person entitled under section 27 of the Act to

apply for the patent. Ground D was that the grant of the patent

was in fraud of the plaintiffs rights. The statement of particulars

alleges that by virtue of the fact that the plaintiffs employees

devised the invention only the plaintiff was entitled to apply for

the patent and the grant of the patent to the patentee was in

fraud of the plaintiffs rights. Ground E was that the prescribed

declaration lodged in respect of the application for the patent

contains a false statement which is material and which the

patentee knew to be false at the time when the declaration was

made. The statement of particulars alleges that the

representation that the patentee is the sole inventor of the

invention is a material misrepresentation and that the patentee

knew when the application for the patent was filed that he was

not the inventor of the invention claimed in the patent but that

the plaintiffs employees were the inventors.


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(6) The plaintiff did not prosecute the proceedings for revocation of

the patent.

(7) Five and a half years later, on 5 July 2007, the plaintiff instituted

this action for an order in terms of section 28 of the Act, directing

the defendant to assign the patent and the right to claim

damages for past infringement of the patent to the plaintiff. In

the particulars of claim the plaintiff alleged that the defendant is

recorded in the patent register as the proprietor of the patent,

that Crause is recorded in the register as the sole inventor, the

applicant and the original patentee but that notwithstanding the

contents of the register, the true inventors were the plaintiffs

employees, Peter Thorburn, Gary Wilson and Robert Skelton

and that they invented the invention in or about 1996.

(8) Six and a half years later, in August 2008, the plaintiff amended

its particulars of claim to delete the reference to Gary Wilson

and to insert the alternative allegation that the inventors of the

invention were the plaintiffs employees (now only Peter

Thorburn and Robert Skelton) together with Crause.

[24] (1) It is not possible to reconcile these statements and there is no

explanation for the contradictions and inconsistencies which go

to the heart of the dispute. At first there was no attempt to


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assert any right to the patent. Then in September 2001 the

plaintiffs attorney, obviously acting on instructions, alleged that

Thorburn, Wilson and Crause jointly devised the invention

during various meetings at the plaintiffs offices during about

March 1998. There was no mention of Skelton as an inventor

and no suggestion that Crause was not involved.

(2) The plaintiffs version changed again in November 2001 when

Thorburn sent Anglo American a memorandum to explain who

was entitled to the patent. Even then there was a contradiction.

In his covering letter Thorburn stated that the plaintiff claims to

be the rightful owner of the patent but the enclosed

memorandum makes it clear that the invention was the result of

the joint collaboration between Galison personnel and Chris

Crause. The thrust of the memorandum is that Crause devised

the invention but that the plaintiffs personnel contributed

substantially to the invention and accordingly that the plaintiff is

at least entitled to be a partial proprietor of the patent. As far as

the defendant is concerned this is the opposite of what the

plaintiff now contends.

(3) The plaintiffs version changed again in February 2002 when the

revocation proceedings were launched. Now it was alleged that

Crause had not devised the invention at all and was not entitled

to be a patentee and that Thorburn, Wilson and Skelton had


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devised the patent and that only the plaintiff was entitled to be

registered as the patentee.

(4) This continued to be the plaintiffs version five and a half years

later when the plaintiff instituted this action but a year later it

changed again. Now the allegation that Wilson had participated

in devising the invention was deleted and it was alleged in the

alternative, that Crause also participated in devising the

invention.

(5) It is astonishing that for at least six years the plaintiff

consistently alleged that Wilson helped devised the invention

and at the last moment this allegation was deleted, that Skelton

was not even referred to in the first formal letters and that the

plaintiff contradicted itself about Crauses role on at least two

occasions.

(6) All these factors show that the plaintiffs evidence (i.e. that of

Thorburn and Skelton) is unreliable and cannot be accepted at

face value. This is exacerbated by the probabilities arising out

of the plaintiffs failure to take action when apprised of the

existence of the patent and by the action which the plaintiff did

take.


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[25] (1) Thorburn has been in the business of manufacturing mining

equipment for more than 30 years during which period he has

devised and registered some 70 patents. He is well-educated,

an experienced businessman, knowledgeable about the value of

intellectual property rights and he does not hesitate to consult

patent attorneys as the documents in this case show. He is also

ruthless in his quest to safeguard and protect his and/or the

plaintiffs rights. He did not hesitate to attempt to impugn

Crauses honesty and character in his, Thorburns, own

evidence. There can be no doubt that if Thorburn considered

that Crause had, in effect, stolen the rights to the invention by

registering a patent in respect of which he had no rights

Thorburn would have immediately confronted Crause and

demanded that Crause assign the patent to the plaintiff and if

necessary institute proceedings for appropriate relief. Thorburn

did none of these things. The first steps to safeguard the

plaintiffs rights were taken only after it became apparent that a

new licence agreement would not be entered into. Thorburns

explanation that he thought the plaintiff was doing good

business and that he was extremely busy acquiring other rights

is unconvincing. In 1997 Thorburn was able to find the time to

file a provisional application for the hopper with the scroll.

(2) After the plaintiffs employees had devised the new wide door

hopper which overcame the problem of discharging sticky ore,


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Thorburn did not have the plaintiffs draftsman, Lee Hibbert,

prepare drawings for the hopper so that Thorburn could consult

a patent attorney to see whether a patent could be registered to

protect the invention and the plaintiffs rights. There is no

suggestion that Thorburn consulted a patent attorney with a

view to registering a patent in respect of the hopper in 1996 and

there are no drawings for the hopper prepared in 1996.

(3) When the plaintiff and Elizabeth entered into the licence

agreement in October 1996 no mention was made in the

agreement of the new hopper and who was entitled to it. The

agreement governs only the relationship of the parties in respect

of WDHs. It is inconceivable that this would have happened if a

new invention had been devised which overcame the discharge

of the sticky ore problem.

(4) For a period of at least 18 months the plaintiff continued to do

business with Complete Projects and not once during that period

did the plaintiff claim that it and not Crause devised the invention

to the patent.

(5) After the licence agreement with Elizabeth Crause expired on 4

December 2000 the plaintiff did not take steps immediately to

challenge Crauses right to register the patent. The plaintiff


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continued to manufacture and sell to Complete Projects and

other purchasers WDHs and the wide door hoppers.

(6) The plaintiff did not follow up the progress of the new hopper

with Crause to see how it was performing.

(7) There are no records to reflect what Skelton was doing at the

plaintiffs works for two and a half to three weeks during

July/August 1996. This was obviously a specific instruction to

modify the WDH and it took a great deal of time of an

experienced artisan.

[26] As against these inconsistencies, contradictions and improbabilities,

Crauses evidence on the key issue was not shown to be untrue.

Crause was adamant that he devised the invention in a two stage

process. First, in 1995, he developed the inventive concept, which he

illustrated with contemporaneous drawings. Second, in 1997, he

implemented the inventive concept by making, with the assistance with

Scott and Wiblin, a prototype of the wide door hopper. In this regard

his evidence was corroborated by Scott and Wiblin in all material

respects. Neither was shown to be untruthful and it was not suggested

that they fabricated their evidence. There is also important

circumstantial evidence by Jan van Vuuren and Johan Rossouw which

tends to support Crause if not support him directly.


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[27] There are some troubling features in Crauses evidence. One is the

delay of two years in implementing the inventive concept by producing

the prototype in Pretoria North in 1997. If this was the ultimate hopper

as Crause suggests it is highly improbable, if not inconceivable, that he

would not have sought to exploit the invention as soon as possible. His

explanation that he did not want to place too heavy a burden on his

newly qualified son is not convincing. Another feature is his apparent

inability to appreciate the conflict of interest between his duties as

Chief Mining Inspector and as a businessman involved in selling mining

equipment in the mines falling under his jurisdiction. Nevertheless, in

view of the inconsistencies, contradictions and improbabilities in the

plaintiffs evidence, it will serve no purpose to analyse his evidence in

detail. Even if it is held that in many respects Crause is unreliable this

does not apply to his evidence on the central issue which is

corroborated by other

case number patent 984753

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