Fresh on BAILII today is the Court of Appeal's determination inwards Ultraframe (UK) Ltd v Eurocell Building Plastics Ltd together with roughly other [2005] EWCA Civ 761. This was an appeal from Mr Justice Lewison, ane of the Patents Court's to a greater extent than recently-appointed judges together with a Chancery cross-over approximate who did non come upwardly through the ranks of the Patent Bar.
Ultraframe together with Eurocell both made together with sold kits of parts for making depression pitch conservatory lean-to roof assemblies. Those assemblies were made from long, hollow UPVC panels. Ultraframe said Eurocell's ‘Pinnacle 500’ kit infringed its ain ‘Ultraframe 500’, suing for infringement of its patent inwards the production kit itself together with its unregistered blueprint right inwards the panels together with consummate assembly. Eurocell counterclaimed for revocation of the patent.
Eurocell's product
Ultraframe stated that the object of its innovation was to furnish an improved edifice structure. Claim 1 of the patent provided for "… elements farther comprising integral coupling members on contrary sides, wherein lower coupling members incorporate formations that interengage alongside formations of neighbouring elements together with were held together yesteryear a stiffening fellow member betwixt the elements". This required solely that, inwards the completed structure, parts on the lower sides of the panels should "interengage" then that that whole construction was held together yesteryear the stiffening member. This was an improvement on the prior art, where the parts were linked earlier insertion of the stiffening member. In the claimed invention, this stiffening fellow member served ii functions: it both locked the parts together together with provided rigidity. Eurocell said the claim was narrower: "interengage" required to a greater extent than than that the ii panels abutted each other. Instead at that topographic point had to live roughly course of report of interlocking or partial restraint of drive betwixt the panels.
At trial Lewison J concluded that the patent, though valid, had non been infringed. However, inwards his thought it did infringe blueprint right. After judgment, Eurocell offered an project nether s. 239 of the Copyright, Designs together with Patents Act 1988, alongside a regard to limiting the damages Ultraframe could recover for infringement of blueprint right. Ultraframe said Eurocell couldn't produce this since the blueprint had already expired.
* On the patent infringement lawsuit Jacob together with Mummery LJJ allowed the appeal (Neuberger LJ dissenting): since the patent was both valid together with infringed, Ultraframe's appeal against would live allowed. According to the majority, tThe primal regulation inwards fixing the extent of a patent monopoly is but ane of construction of the claim, read inwards the context of the description together with the drawings. Applying the Kirin-Amgen Inc v Hoescht Marion Roussel Ltd test, at that topographic point was exactly ane inquiry had to live asked: what did the skilled human being retrieve the patentee meant when he used the linguistic communication of the claim. In this example the skilled human being would regard the panels equally described equally truly beingness used. To him, the description of how the construction of the innovation was lay together would live a revelation. This beingness so, Eurocell's Pinnacle 500 panels infringed.
* On the blueprint argument Mummery together with Neuberger LJJ, dismissing the appeal, agreed that Lewison J was right to notice at that topographic point had been infringement.
Ultraframe's product
* On the licence of right issue, all 3 appellate titans agreed that Lewison J had reached the right conclusion on that lawsuit together with that he had been entitled to convey the project offered yesteryear Eurocell.
notes that the Kirin-Amgen test of non-identical infringement together with claim construction, which generated then much surprise together with comment when the House of Lords sprung it on the Great Britain patent community final year, is fast becoming a exam tally for routine application -- at to the lowest degree inwards low-tech cases inwards which the pre-Amgen Improver test applied then well. Merpel says, "zzzzzzzzzzzzzzzzzzzzz ..."
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