Schlumberger Logelco Inc v Coflexip S A

The respondent, Coflexip S A, was the patentee of South African patent 89/1418, which related to an apparatus for transferring fluid (particularly oil) between the sea-bed and the sea surface. The appellant, Schlumberger Logelco Inc, installed such apparatus at a Soekor Field Development Project situated 95 nautical miles off the South African coast near Mossel Bay, placing it within the exclusive economic zone of the Republic. The Commissioner of Patents (MacArthur J) dismissed the appellant's special plea and found that patent infringement could occur within the exclusive economic zone. The appellant appealed with leave.

• Whether a South African patent can be infringed by the installation of a pipeline to transfer a substance from the sea-bed to a platform situated within the exclusive economic zone
• Whether the term 'Republic' in section 45(1) of the Patents Act 57 of 1978 extends to the exclusive economic zone
• The interpretation and application of section 9(1) of the Maritime Zones Act 15 of 1994 in relation to patent infringement on installations
• The interaction between section 71 of the Patents Act and the Maritime Zones Act

The appeal was dismissed with costs, including the costs of two counsel. The decision of the Commissioner of Patents dismissing the special plea was upheld.

The binding legal principle established is that South African patents can be infringed within the exclusive economic zone. Section 9(1) of the Maritime Zones Act 15 of 1994 provides that any law in force in the Republic, including the Patents Act 57 of 1978, applies on and in respect of an "installation" as defined in the Maritime Zones Act. An installation includes pipelines used for transferring substances to or from research, exploration or production platforms situated within the exclusive economic zone. Therefore, the installation and use of patented apparatus within the exclusive economic zone constitutes patent infringement under South African law. The exception in section 71 of the Patents Act for convention vessels temporarily in territorial waters does not apply to installations in the exclusive economic zone and does not create any inconsistency requiring a different interpretation.

The Court made several non-binding observations: (1) Section 71 of the Patents Act contains a number of possible anomalies or lacunae, including that the infringement exception applies only to convention vessels (vessels of other Paris Union countries), meaning South African-flagged vessels temporarily entering territorial waters are not protected. (2) There are differences in immunity granted to vessels versus aircraft and land vehicles. (3) The possible omission regarding convention vessels within the exclusive economic zone is readily explicable because Article 5 ter of the Paris Convention has not been amended, the LOSC did not deal with the problem, the TRIPS agreement did not address it, and it was not part of the basic proposal for a Patent Law Treaty as of November 1999. (4) There has been no incentive for Parliament to extend the immunity of section 71 to the exclusive economic zone.

This case is significant in South African jurisprudence as it established the territorial scope of patent protection beyond territorial waters to the exclusive economic zone. It clarified the interaction between the Patents Act 57 of 1978 and the Maritime Zones Act 15 of 1994, confirming that patent rights can be enforced on installations situated within the exclusive economic zone. The judgment demonstrates the application of international law principles (particularly the UN Convention on the Law of the Sea) in South African domestic law and the extraterritorial reach of South African intellectual property legislation in maritime zones. It is important for the oil and gas industry and other offshore operations within South Africa's exclusive economic zone.