A Victory for Cats (and anonymity) at the UK-IPO

As a cat, I feel it is my right to be able to catch, kill and eat birds as I see fit. Bird tables are usually good places to do this, as humans often use them to attract birds with food. I was therefore startled and disturbed, not to say quite angry (see picture, left, of me looking less than pleased) to see that someone had filed a request for an opinion on a GB patent (GB2339667) titled "Cat Free Extended Feed Bird Table". The patent claimed the following:

"A bird feeding table having more than one feeding container or tray each being supported centrally on a pole, each container or tray being at a different level on the pole, there being at the lowest level, a plastics tray having an upstanding peripheral lip, the plastics tray having a horizontal area larger than the horizontal area(s) of the or each tray or container above."

The bird tables described in the patent (see example, right) emphasised that the purpose of the plastics tray with the upstanding peripheral lip was for "making it impossible for cats to jump on to the table, or see birds that are feeding from within the base lid". Now, of course, if that were to be the case, I would be very unimpressed by such a bird table being placed in my garden.

The requester and patent owner, a Mr John Hadleigh, was alleging that his patent was infringed by products alleged to have been imported into the UK and sold by HHS Trading (UK) Ltd (see picture, below right).

To my eyes, it looked like a fairly easy job to get birds from these allegedly infringing tables. From my feline perspective, if I was standing next to this table I would definitely be able to see the bird standing on the rim and, if feeling energetic enough, would be able to at least make an attempt to get it. Whether I got the bird or not would be a factor of my agility and the bird's fleetness, but not to do with the bird table preventing me.

Obviously, I could not stand idly by while such a patent was being used in this way, largely because I would much prefer to see bird tables of the HHS sort than the ones made by Mr Hadleigh, even if Mr Hadleigh's tables didn't work as advertised (as, I suspect, would be the case).

So, within the 4 week time limit specified by Rule 77F of the Patents Rules 1995 (this was before the new rules came into force, but the new ones are just the same in substance), I filed some observations on the request. I first wondered whether I would be allowed, since Rule 77F specifies that "any person" may file observations. Thinking about it for a little while, I proposed to the examiner the following:

"According to rule 77F, “any person may, before the end of the relevant period, file observations on any issue raised by the request”. I submit that the term “any person” must also include cats, not least because the question of whether the articles submitted by the requester infringe the patent is clearly of vital relevance to animals of the species felis sylvestris.

Furthermore, since my paws are unable to operate keyboards effectively, I have delegated the responsibility of preparing and filing these observations to my servant and amanuensis, who wishes to remain anonymous. On a plain interpretation of rule 77F, the observations have been filed by a person, if this is construed to mean a human [Tufty comment: the observations were filed by email]. To construe otherwise would be to confer digital manipulation skills that I do not possess.

If the examiner maintains the latter interpretation (i.e. that observations must be filed by a human person), I further contend that there is no reason why anonymous (or pseudonymous) observations should not be taken into account, not least because there are no provisions within section 74A or the associated rules 77A to 77K to prevent this."

I then went on to point out to the examiner that, on a normal construction of the patent claim in line with Kirin Amgen, the claimed bird table would need to have at least an element of being “cat-free”, i.e. constructed such that cats could not easily access birds feeding on the table, even though the claim did not literally specify this. The alleged infringement would clearly not be cat free, particularly if I had anything to do with it. Although this should have been enough to dispose of the matter, I also made the point that the alleged infringement did not have the "upstanding peripheral lip" required by the patent, and even if it could be termed to be upstanding it would not serve the purpose of the lip of the patent claim, which was to prevent cats from jumping up and from seeing birds on the table.

After the usual two month wait, the UK-IPO examiner then issued his opinion (now published as Opinion 24/07), and kindly sent me a copy. The most significant comment came in first, with the examiner saying:

"Observations were filed by an unidentified third party, which asserted that neither of the products infringed the patent. No observations were received from HHS Trading (UK) Limited.

Observations in reply have also been received from the requester. Whilst the requester disagreed with the observer’s conclusions, he supported the right of the third party to file observations anonymously. There are no provisions in section 74A nor rule 96 (formerly rule 77F) that prohibit anonymous observations. Accordingly, I intend to fully consider the observer’s comments in this opinion."

Following the usual Kirin Amgen approach, the examiner then assessed what the skilled person would understand the patentee to mean by the claimed invention, the skilled person in this case being a "manufacturer or vendor of structural garden products used in the care of animal wildlife".

The examiner did not agree with me that the claimed invention should be construed specifically as a “cat-free bird feeding table”, since in his view it would be unrealistic to expect the protection to be absolute (although this was not what I had actually stated). The examiner further stated,

"Like all animals, cats can vary significantly in size and may even use garden or topographical features, such as a fence or elevated ground, to assist in their efforts to reach birds feeding at the table. I agree with the requester, therefore, that the claim should not be construed in the narrow fashion proposed by the observer."

The examiner did, however, agree with me that the "upstanding lip" of the lowest plastics tray should be substantially vertically disposed with respect to a planar base. This was sufficient in itself to rule out the HHS bird table from being an infringement, the examiner agreeing with me that the lower receptacle of the HHS bird table did not comprise an upstanding peripheral lip when the claim was properly construed. A second, slightly different, alleged infringing article was also ruled out of being an infringement on the same claim construction.

Although I am a little upset that the examiner did not choose to recognise my feline rights to file observations, and that he did not in my view get the construction right, the correct result appears to have been arrived at. Probably of more interest to the general patent practitioner is that there is apparently no reason why observations cannot be filed anonymously. For other cats out there, you now know what to do to assert your feline rights.