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Intellectual Property Enterprise Court
You are here: BAILII >> Databases >> Intellectual Property Enterprise Court >> Adolf Nissen Elektrobau GmbH & Co KG v Horizont Group GmbH  EWHC 3522 (IPEC) (18 December 2019)
Cite as:  EWHC 3522 (IPEC)
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BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
INTELLECTUAL PROPERTY ENTERPRISE COURT
Fetter Lane, London, EC4A 1NL
B e f o r e :
| ADOLF NISSEN ELEKTROBAU GMBH & CO KG
|- and -
|HORIZONT GROUP GMBH
Maxwell Keay (instructed by M.J.P. Deans) for the Defendant
Hearing dates: 5-6 November 2019
Crown Copyright ©
Judge Hacon :
The skilled person
"In line with traffic regulations, all these patterns are generated in one single colour and as flashing lights. The main colour used is yellow."
"The individual spotlights that are configured as flashing lights can be halogen lights or LED lights. There are two different designs. The individual LEDs can be furnished with yellow lenses, but they can also emit a yellow light and have transparent, clear lenses."
"The warning cross is shown in an additional colour to the flashing directional arrows, and shines constantly."
"A mobile warning device will cause an increased level of attention when implemented in this way, because it has an unusual – and thus unexpected – form and colour. This is due to the fact that the (preferably red) warning crosses in constant light have not been mounted on vehicles. If a warning cross shining in an unfamiliar colour now appears on a construction vehicle, trailer or a similar vehicle, it will warn the road user of a particularly dangerous situation, namely of the closing off of a lane or carriageway, in a very emphatic way."
" … an additional spotlight attached next to each end point of the cross and these four additional spotlights emit a flashing red light by pairs upon activation of the red warning cross."
"The red diagonal cross in connection with the fourfold intermittent flashing system is already familiar to the road users from sign gantries. Usually, it indicates the closing of a lane. When using these signals for mobile warning devices, at first an unfamiliar effect is created that particularly increases the attention level of the road users. At the same time, they receive information which they are familiar with, because the diagonal red cross with the additional flashing lights is a system that is already know from stationary arrangements."
1. A mobile warning device for road traffic with a board to be mounted on a vehicle on which strobe lights and warning lights are arranged in a flat pattern and which can be switched on in groups so that they selectively form an illuminated pattern in the form of flashing directional arrows or, alternatively, warning crosses or similar patterns, characterized in that an illuminated warning cross can be optically produced in constant light that differs in colour from the flashing directional arrows.
4. A mobile warning device according to Claim 3, characterized in that an additional spotlight is placed next to each end point of the cross, whereby those four additional spotlights, upon activation of the warning cross that shines in red, emit in pairs a red flashing light, achieved by activating both lamps to the left of the warning cross and both lamps to the right of the warning cross in sequence.
5. A mobile warning device according to Claim 4, characterized in that the additional spotlights allocated to the upper end points of the cross are individually attached to the upper edge of the board, outside the board surface.
6. A mobile warning device according to any one of preceding Claims, characterized in that the warning lights include lights for the emission of both constant light and flashing light configured as LED spotlights with separate LED arrays for permanent light and flashing light respectively.
A mobile warning device
" [The skilled person] would know that a MWD is necessarily mobile. It will be mounted on a trailer for a work vehicle itself so that it can serve its warning purpose while actually being driven slowly along a live lane of carriageway …"
The grounds of alleged invalidity
(1) German Utility Model No. DE 297 06 007 ('DE007') (all argument was conducted by reference to an agreed translation);
(2) United States Patent No. 6,590,502 ('Pederson'); and
(3) The advertisement, offer for sale and sale of the Nissen Fahrbare Vorwarntafeln mit LED-Wechselverkehrzeichen product No. 129-265 ('the Nissen Board').
"It seems to me, therefore, that obstacles to regulatory approval of pharmaceutical products are not relevant obstacles to an obviousness attack. It is also worth drawing attention to the clear distinction drawn by Aldous LJ between obstacles to manufacture on the one hand, and obstacles to lawful sale on the other. Obstacles to lawful sale are not relevant to obviousness."
"I accept that the skilled person must be deemed to consider any piece of prior art properly and in that sense with interest. This emerges clearly from the decision of the Court of Appeal in Asahi Medical Co Ltd v Macopharma (UK) Ltd  EWCA Civ 466 and is necessary to prevent a patent from depriving the public of their right or make or do anything which is merely an obvious modification of what has been done or published before. But the law does not deem the skilled person to assume the prior art has any relevance to the problem he is addressing or require him to take it forward. Having considered it, he may conclude that it is simply not a worthwhile starting point and so put it to one side."
Common general knowledge
"The invention relates to a transportable signboard for barriers, warning signs, or traffic signs, henceforth simply 'signboard', in particular for use at work sites on roads and expressways, and to a mobile signboard device having such a signboard."
"Moreover, it is possible for the signboards on the transport vehicle to be driven behind a mobile work site."
"On the top panel part 1, there are two flashing warning lights 11 as well as several flashing lights 12, which can be interconnected to represent a leftward or rightward pointing arrow or a diagonal cross."
The Nissen Board