LAW OF COLLOCATIONS DOES EXIST AFTER ALL, EVEN IF IT'S INVISIBLE

Another House of Lords decision last week was Sabaf SpA and others v MFI Furniture Centres Ltd and others.

Sabaf owned a UK patent for a burner for gas cookers and hobs. Meneghetti, an Italian company, made a similar product which it sold to MFI, a furniture retailer in the UK, arranging the transportation itself. The trial judge held that the two important features of Sabaf's burner which allegedly constituted an invention were both obvious in the light of prior art. What's more, while there was no item of prior art that taught both of those features, the "law of collocation" -- the principle that it is obvious if you stick A and B together and get A + B, but nothing else -- rendered the patent obvious. The Court of Appeal reversed the judge's finding: in its opinion the "law of collocation" (which is not mentioned anywhere in the Patents Act 1977) was an illegitimate gloss on the Patents Act 1977 s.3. However, the Court of Appeal rejected Sabaf's submission that Meneghetti had infringed the patent by importing the goods into the UK by arranging for their transportation. Meneghetti appealed against the decision that Sabaf's patent of was valid, while Sabaf cross-appealed in respect of the court's finding that Meneghetti had not infringed the patent.

The House of Lords, citing British Celanese Ltd v Courtaulds Ltd (1935) 52 R.P.C. 171, stated that the Court of Appeal's approach to the law of collocation was contrary to well-established principles, both in England and in the European Patent Office. There was no "law of collocation" in the sense of a qualification of, or gloss upon, or exception to, the test for obviousness set out in s.3 of the 1977 Act. However, before establishing whether any invention involves an inventive step, onew must decide what that invention was. In particular, it has to be decided whether one or two or more inventions are in play. Two inventions don't become one invention just because they are included in the same hardware.

As to infringement, it could not be said that, by arranging the transportation of its goods to MFI in England, Meneghetti had imported those goods into the UK. Meneghetti's customer had been the importer. The Court of Appeal was therefore right to hold that infringement had not been established.

The IPKat thinks it a real weakness that appeals from judges who real patent experts, like Sir Hugh Laddie, are allowed to be heard by such judicial babes-in-arms (from a patent point of view) as the three Court of Appeal judges in this case. Skilled patent counsel such as Simon Thorley QC must relish the opportunity to practise their persuasive arts before them. At least the House of Lords fielded a team with some patent expertise.

Cooking gas here; laughing gas here; unwanted gas here