Vodacom was warned in May 2015 it was making a “catastrophic and strategic miscalculation” in the Please Call Me case, which has put it at risk of paying out R10 billion in damages.
In April, Nkosana Makate, who claims to have invented the Please Call Me, won a prolonged legal battle against Vodacom.
The Constitutional Court recently ordered Vodacom to negotiate with Makate “in good faith” to determine “reasonable compensation” for his idea.
Makate said he is asking for 15c of every rand of revenue that Please Call Me generated – which amounts to around R10.5 billion.
Vodacom warned about catastrophic miscalculation
In May 2015, Ari Kahn, the inventor of record for the Please Call Me service, warned Vodacom it was making a catastrophic and strategic miscalculation.
In a letter to Vodacom CEO Shameel Joosub, Kahn told him that Vodacom’s legal team was making a mistake in trying to convince the court of “deficiencies in contract”.
Kahn advised Vodacom to focus on the “irrefutable intellectual property rights to the Call Me Service”.
“This case hinges entirely on intellectual property law – on who owns the creation and who has the right to compensation,” Kahn told Joosub.
While contract law is open to interpretation, patent law is cast in proverbial black and white, said Kahn.
The inventor is “whoever publicly discloses first”, and rights are conferred upon whoever files for protection under the sovereignty of IPR law.
“The irrefutable fact is the Call Me technology was created by me in 2000 during my tenure at MTN as lead R&D consultant,” said Kahn.
“It was disclosed to the SA Patent office on 22 January 2001, which granted the patent and recognized me as inventor.”
Makate has no rights to the service: Kahn
Kahn said Makate has no rights to the Please Call Me service and no rights to compensation, “since the Kahn/MTN patent constitutes Prior Art”.
Kahn warned that focusing on the “contract” – despite urging Vodacom’s counsel to bring “the patent front and centre to the court” – has put Vodacom at risk of losing R10 billion.
“The patent is your silver bullet. Presented properly and competently, it guarantees that you and justice will prevail.”
“Victory is instant and assured, since patent law is what governs the rights to this service.”
Vodacom was asked for comment regarding the issue, but the company did not respond by the time of publication.