3M Future Africa sued Standard Bank and MTN for infringement of its patent relating to a method of authorising a transaction.

The Commissioner of Patents provisionally revoked the patent because he found that only three of the twenty five claims of the patent were valid and infringed. 3M Future Africa was given one month within which to apply to amend its patent, failing which the patent would be unconditionally revoked. The patent was subsequently amended to delete all of the claims, but for the three claims found to be valid and infringed.

Standard Bank and MTN appealed the decision of the Commissioner of Patents to the Supreme Court of Appeal. The Supreme Court of Appeal dismissed 3M Future Africa’s claim for infringement against Standard Bank and MTN, and revoked the amended patent for lack of novelty.

3M Future Africa then applied to the Constitutional Court for leave to appeal the decision of the Supreme Court of Appeal. 3M Future Africa argued that the Supreme Court of Appeal had made conflicting statements relating to the construction and interpretation of patents. 3M Future Africa also argued that the purpose of its application was to rectify the situation so that there would be a uniform approach to the construction and interpretation of patents. This was said to be in the interests of the public and to comply with South Africa’s international obligations.

The application for leave to appeal was dismissed by the Constitutional Court. The reason given by the Constitutional Court for dismissing the application for leave to appeal was that the application had no prospects of success.

The decision of the Constitutional Court was made subsequent to the Constitution having been amended to increase the grounds of appeal to the Constitutional Court. The grounds of appeal were increased from constitutional matters only, to include any other matter which raises an arguable point of law of general public importance.

It would therefore seem that the Constitutional Court did consider the matter to raise an arguable point of law of general public importance, and dismissed the application for leave to appeal because it believed that the Supreme Court of Appeal had been consistent in the manner in which it had construed and interpreted patents.

Contact: Hugh Moubray, Partner, Spoor & Fisher