From the productive pen of occasional guest Paul England (Taylor Wessing LLP) comes the following note on Nampak Plastics Europe Ltd v Alpla UK Ltd, in which the Court of Appeal for England and Wales upheld a ruling by Mr Justice Birss.
[for an explanation of which, click here or here] are a rarity. This is because of judicial reluctance to make decisions about infringement and validity in the absence of expert evidence, particularly on the skilled person's understanding of the claim at issue, the common general knowledge and the prior art. However, the rare case came in Nampak Plastics Europe Ltd v Alpla UK Ltd  EWHC 2196 (Pat), in which Birss J held that the proprietor of United Kingdom patent no 2494349 for a plastic milk bottle could not resist an application for summary judgment on non-infringement in respect of the claimant's bottle design, known as ECO2. Here, the patentee had simply advanced unspecific assertions about the need for expert evidence to be heard at a full trial. But, the judge held, it is necessary to explain with at least some specificity what fact, expert evidence or common general knowledge is to be relied on. Further, the patent was a simple one with a simple claim, and the shape of the competitor's (claimant's) product could readily be understood. Moreover, nothing had been put before the court which explained how the outcome of any infringement analysis would depend on the results of detailed measurement experiments as proposed to be conducted by the patentee.Things to do with repurposed plastic milk bottles here, here and here
The Court of Appeal (Lords Justices Briggs and Floyd and Lady Justice Macur) at  EWCA Civ 1293, has now upheld the decision of Birss J, Said the Court, because it is not a complicated case the warnings in the authorities about the dangers of summary judgment in patent cases do not apply with such force. Like the first instance judge, Floyd LJ was able to draw the necessary conclusions about the construction of the claim on the basis of the specification of the patent. And he was unable to see how these, or the conclusion relating to infringement, could be shown to be erroneous by subsequent evidence. It was for Nampak to show that there was at least some basis for supposing the contrary to be the case, but it did not do so".
To a true patent lawyer, this
is what a milk bottle looks like