Appeal court shows its bottle – summary judgment on patent infringement

It is unusual for a patent infringement case to be decided without a full trial. A judge will normally want to hear evidence from experts to understand what people working in the relevant field would have known at the time when the patent was first filed. Recent examples of this kind of analysis can be found in Virgin v Rovi (discussed here) and Teva v AstraZeneca.

But occasionally the court is presented with a case that is not in a complicated field of technology and where the claims can be understood without expert help. Care is needed to ensure that the court is not missing something that someone working in the field would see, but ‘where the technology is relatively simple to understand, there really is no good reason why summary procedure cannot be invoked.' (as explained in Virgin v Delta).

The patent in Nampak v Alpla claimed plastic milk bottles made using a blow-moulding process. The idea was to produce a bottle using a minimal amount of plastic that did not suffer from excessive weakness at its thinnest points.

When the case was first considered last summer Birss J agreed with Alpla and, without a full trial, granted summary judgment – Alpla's bottle did not infringe.

Nampak appealed. It complained that the judge should not have gone ahead an given judgment on the matter without hearing from expert witnesses. Given the tight trial schedule, the question was heard by the Court of Appeal in a rush over the summer.

The appeal judge was careful to point out the areas where expert evidence is necessary. When trying to understand the meaning of patent claims, expert input is needed to understand the mindset of the relevant skilled person and whether any words used in the claims have a special or technical meaning. But where the words used are just ordinary English, interpreting them is the job of the court.

One element of the claim called for the sides of the bottle to be narrower than the top opening. To deal with this element, the court had to decide which parts of the bottle were the ‘sides' and where the boundary with the ‘truncated corners' began. The parties offered their own alternative explanations. Looking at the examples described in the patent itself and the words of the claim, the appeal judge was happy to confirm the earlier decision. The question of where the side ended and where the corner began was ‘not one on which the evidence of an expert in plastic milk bottle production could conceivably assist' and Nampak had not come up with anything to show otherwise. Alpla's bottle did not infringe.

A patent is a powerful monopoly right, but this case shows that a competitor's product can slip around the edges of the claims without the patentee even having the dignity of their expected day (or days) in court.

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