Legal expert Ari Kahn believes Nkosana Makate should not get a cent from Vodacom for his “invention” of the Please Call Me, and that Vodacom did not benefit one iota from Makate’s contribution.
Makate recently won a legal battle against Vodacom over his Please Call Me idea, which made the mobile operator billions.
In April, the Constitutional Court ordered Vodacom to negotiate with Makate “in good faith” to determine “reasonable compensation” for his idea. Vodacom was given one month to do so.
Kahn, who patented the Please Call Me service on behalf of MTN, explained that Makate is not the originator of the Please Call Me.
“The courts never once ruled he invented the service, because you cannot invent an idea – which is all he proposed,” said Kahn.
He said the Please Call Me was already claimed and reduced to practice as per the evidence:
- The Kahn/MTN Patent
- The fact that MTN publicly launched the service weeks before Vodacom
“Every contract has context and the entire premise of his contract was his claim to have been the originator (the seed) of the service which Vodacom exploited,” said Kahn.
“Vodacom did not benefit one iota from his contribution. They benefited solely because MTN chose not to enforce its rights at the time.”
Vodacom launched a technology owned by MTN
Kahn said that when you sell intellectual property, you warrant that:
- You have the rights to the property
- You are legally entitled to sell it
“Makate possessed neither,” said Kahn, adding that you cannot divorce a contract from its context.
“Patent Law trumps Contract Law, because the moment you have Prior Art (public proof that the technology existed before you) you lose all intellectual property rights,” said Kahn.
“You cannot claim compensation for something which you do not have rights and title to. That is tantamount to fraud”.
Kahn said Vodacom essentially launched a technology owned by MTN.
It is all about the contract with Vodacom: Errol Elsdon
Errol Elsdon – chairman at Sterling Rand, the firm which represents Makate – said his claim is not based on any invention or intellectual property he purports to have rights to.
“Makate’s claim is based on contract. He contended at trial that he had a contract with Vodacom, and this contract and its terms were specifically confirmed in the High Court judgment. This was accepted by the Constitutional Court,” said Elsdon.
He said Makate’s contract was to the effect that he would be paid a percentage of the gross income of the concept.
“It is a simple mathematical calculation and turns on one simple fact: what was the percentage of return calls generated by the receipt of a PCM message,” said Elsdon.