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England and Wales High Court (Patents Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Patents Court) Decisions >> Nampak Cartons Ltd v Rapid Action Packaging Ltd [2010] EWHC 1458 (Pat) (18 June 2010) URL: http://www.bailii.org/ew/cases/EWHC/Patents/2010/1458.html Cite as: [2010] EWHC 1458 (Pat) |
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CHANCERY DIVISION
PATENTS COURT
ON APPEAL FROM THE UK INTELLECTUAL PROPERTY OFFICE
Strand, London, WC2A 2LL |
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B e f o r e :
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NAMPAK CARTONS LIMITED |
Appellant |
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- and - |
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RAPID ACTION PACKAGING LIMITED |
Respondent |
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John Baldwin QC (instructed by Boult Wade Tennant) for the Respondent
Hearing date: 14th and 15th June 2010
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Crown Copyright ©
Mr Justice Floyd :
"A carton for a diagonally cut sandwich or like foodstuff formed from a blank of card and having triangular end walls connected by rectangular sidewalls to form a triangular prism-shaped container, one side wall of the container being hinged to another wall of the container to provide an opening for insertion/ removal of foodstuff and to form a lid for closing the opening, the edges of the opening having out-turned flanges, and the periphery of the lid overlying the out-turned flanges encircling the opening when the lid is in the closed position whereby the lid can be bonded to the flanges to close the carton; wherein the carton is formed from a card which is heat sealable on the surface which forms the inner side of the container, the periphery of the lid of the container being bonded by heat sealing to the out-turned flanges encircling the opening of the container to seal the contents of the container and wherein the bonded lid/flanges are adapted to be torn apart to open the container for access to the sandwich therein by dual parallel lines of partial cut along the flanges, one being at the junction between the flange and the wall adjacent to the inside face of the lid and the other being part way across and on the other side of the flange so that the flanges can split to allow the lid to be opened."
i) US Patent Specification 4930639 ("Rigby");
ii) US Patent Specification 4183458 ("Meyers"); and
iii) GB Patent Specification 2349634 ("Spiral Packs").
Approach on appeal
"Where the application of a legal standard such as negligence or obviousness involves no question of principle but is simply a matter of degree, an appellate court should be very cautious in differing from the judge's evaluation."
The grounds of Appeal
Ground 1: failure to have regard to expert evidence
"Both parties filed evidence in the form of witness statements from expert witnesses. Mr Riley was the applicant's expert; Mr Clough was the patentee's expert. There is no doubt that both Mr Riley and Mr Clough are rightly described as experts; both men have had many years of experience in the food packaging industry. The gist of Mr Riley's evidence was that the invention was obvious; the gist of Mr Clough's evidence was that it was not obvious. Both experts were cross-examined at length during the hearing, and neither expert changed his mind to any material extent. I formed the impression that Mr Riley knew more about patent law than Mr Clough, and he also seemed to have more experience of being cross-examined. Nevertheless, both men came across as honest witnesses who were doing their best to assist the tribunal.
Although the fundamental difference of opinion between the experts meant that their evidence was not directly helpful to me in deciding this case, it was useful in as much as they agreed on the identity of the notional person (or team) skilled in the art they were also able to help me determine what would be the common general knowledge of that person (or team)."
"Ultimately, the experts, Messrs Riley and Clough, were unable to help me with this question because their evidence was not conclusive."
"The arrangement in Meyers, with a single micro-cut along the side edges, appears to work well enough without the extra micro-cut. At the hearing, it was suggested that it would be obvious to add the second micro-cut in order to make it easier to open the package – i.e. because there would be less material to tear. But it seems more likely to me that if one wanted to modify Meyers to make it easier to tear the lid off, one would be more likely to make the flanges narrower."
"Because the expert's conclusion … as such … is of little value it does not really matter what the actual attributes of the real expert witness are. What matters are the reasons for his or her opinion.""
"I had never come across putting lines of weakness in the flanges to cause the flanges to split and it would never have occurred to me to do so as no-one would want to weaken the flanges".
Ground 2 and 3: Failure to construe the teaching of Spiral Packs and failure to deal with obviousness in the light of common general knowledge
"a removable strip of paperboard material provided by two pairs of micro-cuts - one pair on either side of the strip - an arrangement that I referred to during the hearing is "double Concora"."
Ground 4: Failure to follow Pozzoli
"The majority of the features in claim 1 were already well known to a skilled worker. Having read the submissions of the parties, and having also read the patent and the evidence in this case, I conclude that the inventive concept is a cardboard sandwich carton with dual parallel lines of partial cut along the flanges, one being at the junction between the flange and the wall adjacent the inside face of the lid and the other being partway across and on the other side of the flange so that the flanges can split (i.e. delaminate between the cuts) to allow the lid to be opened."
Conclusion