MANUALLY OPERATED MACHINE "NOT AN INFRINGEMENT"

In Agilent Technologies Deutschland GmbH v Waters Corp and another (spotted by LexisNexis' subscription-only All England Direct service) [2004] EWHC 2992 (Ch) Mr Justice Pumfrey, sitting in the Patents Court, dismissed what looked like a pretty far-out patent infringement claim. Agilent owned a patent for to pumping apparatus for the delivery of liquid at high pressure which could be used in high pressure liquid chromatography columns. Following unreported proceedings in which the Court of Appeal ([2002] All ER (D) 152 (May)) held the patent valid and infringed, Agilent sued again, alleging that another Waters' pump system infringed. This machine operated in ‘manual mode’,the operator selecting pump volume from four pre-selectable volumes and separately specifying the flow rate of solvent delivered by the machine. This machine informed the operator if it could not deliver the specified flow rate at the volume specified but did not automatically change the range. Waters maintained that automatic operation was essential to the patent, while Agilent said the claim specified an apparatus which was capable of performing the required adjustment.

Agilent: are they trying to invent a machine for pumping out patent infringement claims?

Mr Justice Pumfrey dismissed the claim, holding that the patent was not infringed. On its true construction, the characterising portion of the patent could only be read as conferring a monopoly on apparatus capable of operating automatically in the manner described at length in the specification. The learned judge expressed the view that it was astonishing that a patent which was based upon a description which only contemplated automatic tracking of the desired flow rate should be capable of covering a device in which there was no such automatic tracking. The IPKat agrees with him. Whether you use the old Catnic/Improver test of non-exact infringement or the more sophisticated Kirin-Amgen approach, there's no scope for stretching this patent's claims to cover Waters' invention.

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