Fresh on BAILII today is the Court of Appeal's decision in Ultraframe (UK) Ltd v Eurocell Building Plastics Ltd and another [2005] EWCA Civ 761. This was an appeal from Mr Justice Lewison, one of the Patents Court's more recently-appointed judges and a Chancery cross-over judge who did not come through the ranks of the Patent Bar.

Ultraframe and Eurocell both made and sold kits of parts for making low pitch conservatory lean-to roof assemblies. Those assemblies were made from long, hollow UPVC panels. Ultraframe said Eurocell's ‘Pinnacle 500’ kit infringed its own ‘Ultraframe 500’, suing for infringement of its patent in the product kit itself and its unregistered design right in the panels and complete assembly. Eurocell counterclaimed for revocation of the patent.

Eurocell's product

Ultraframe stated that the object of its invention was to provide an improved building structure. Claim 1 of the patent provided for "… elements further comprising integral coupling members on opposite sides, wherein lower coupling members comprise formations that interengage with formations of neighbouring elements and were held together by a stiffening member between the elements". This required only that, in the completed structure, parts on the lower sides of the panels should "interengage" so that that whole structure was held together by the stiffening member. This was an improvement on the prior art, where the parts were linked before insertion of the stiffening member. In the claimed invention, this stiffening member served two functions: it both locked the parts together and provided rigidity. Eurocell said the claim was narrower: "interengage" required more than that the two panels abutted each other. Instead there had to be some sort of interlocking or partial restraint of movement between the panels.

At trial Lewison J concluded that the patent, though valid, had not been infringed. However, in his opinion it did infringe design right. After judgment, Eurocell offered an undertaking under s. 239 of the Copyright, Designs and Patents Act 1988, with a view to limiting the damages Ultraframe could recover for infringement of design right. Ultraframe said Eurocell couldn't do this since the design had already expired.

* On the patent infringement issue Jacob and Mummery LJJ allowed the appeal (Neuberger LJ dissenting): since the patent was both valid and infringed, Ultraframe's appeal against would be allowed. According to the majority, tThe key principle in fixing the extent of a patent monopoly is simply one of construction of the claim, read in the context of the description and the drawings. Applying the Kirin-Amgen Inc v Hoescht Marion Roussel Ltd test, there was just one question had to be asked: what did the skilled man think the patentee meant when he used the language of the claim. In this case the skilled man would view the panels as described as actually being used. To him, the description of how the structure of the invention was put together would be a revelation. This being so, Eurocell's Pinnacle 500 panels infringed.

* On the design argument Mummery and Neuberger LJJ, dismissing the appeal, agreed that Lewison J was correct to find there had been infringement.

Ultraframe's product

* On the licence of right issue, all three appellate titans agreed that Lewison J had reached the right conclusion on that issue and that he had been entitled to accept the undertaking offered by Eurocell.

The IPKat notes that the Kirin-Amgen test of non-identical infringement and claim construction, which generated so much surprise and comment when the House of Lords sprung it on the UK patent community last year, is fast becoming a test fit for routine application -- at least in low-tech cases in which the pre-Amgen Improver test applied so well. Merpel says, "zzzzzzzzzzzzzzzzzzzzz ..."

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