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LB and Smurfit both made and sold flexible 'bag-in-box' liquid packages containing tap units made up of a tap and a plug into which it was fitted; these bags-in-boxes were used mainly for wine. A second defendant sold the tap units separately. Each bag was made from an aluminium molecular foil deposit. The products were disposable and the tap mechanism had to be as cheap and leakproof as possible.
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Left: so long as the picture on the label isn't indicative of the taste of the contents ...
In 2004, after LB supplied an example of its product to Smurfit, a dispute arose between them and LB sought (i) an injunction to restrain unjustifiable threats of patent infringement, (ii) a declaration of non-infringement (iii) and revocation of the patent. Smurfit counterclaimed for infringement. In these proceedings, which dealt with the validity of the patent, LB submitted that the tearable taxing means and the engagement device were obvious in the light of the prior art, which consisted of two French patent applications and an existing product that enjoyed around 95% of the European market when Smurfit's patent application was filed. Smurfit contended that the patent was valid and infringed.
Roger Wyand QC agreed with Smurfit that the patent was valid but, siding with LB, ruled that it had not been infringed.
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The IPKat wishes that the tamper-evident seal was there to protect the consumer against deterioration of the quality of the wine, rather than loss of tax revenue to the State. Merpel says, if you don't have opposable thumbs it doesn't much matter whether the vino's in a box or a bottle ...* LB failed to show that the tearable taxing device within the tap construction was obvious in the light of the prior art. The fact that the means of incorporating the tearable taxing device was "elegantly simple" was not obvious and was therefore inventive.
Right: what cats would do if they only had opposable thumbs - clever visuals by imgag.com (click on image for full effect)
* On the evidence and employing normal principles of patent claim construction, Smurfit couldn't show that LB's engagement mechanism and plug contained the features described in Claim 1 of the patent.
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Ancient joke: how do you make a Swiss Roll? Answer (and recipe) here
Smurfit, tight fit and pat lit; Swiss on a roll with expedited trade mark applications
Reviewed by Jeremy
on
Tuesday, March 20, 2007
Rating:
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