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England and Wales High Court (Patents Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Patents Court) Decisions >> Kennametal Inc v Pramet Tools SRO & Anor  EWHC 565 (Pat) (05 March 2014)
Cite as:  EWHC 565 (Pat),  RPC 2
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Fetter Lane, London, EC4A 1NL
B e f o r e :
(Sitting as a Deputy Judge of the High Court)
|PRAMET TOOLS SRO|
|ASSOCIATED PRODUCTION TOOLS LTD||Defendants|
Iain Purvis QC & Kathryn Pickard instructed by Charles Russell LLP for the Defendants
Hearing dates: 28, 29, 30 January and 3 February 2014
Crown Copyright ©
|The expert witnesses||11|
|Common general knowledge||22|
|Indexable cutting inserts||24|
|Positively-held cutting inserts||25|
|The 643 Patent||32|
|Claim 1 of the 643 Patent||37|
|Substantially straight cutting edge region (integer 15)||40|
|Secondary conical clearance surface (integer 14)||50|
|The consequences of my construction of Claim 1||55|
|Is there a substantially straight cutting edge region of 0.2mm in the Pramet inserts?||58|
|The Defendants' design drawings||59|
|The Wendt grinding machine||60|
|Mr Palmer's experiments||66|
|Original CMM results||68|
|The Zoller tests||69|
|Mr Palmer's milling tests||70|
|Professor Axinte's experiments||74|
|The microscopic photographs of the workpieces||74|
|The CMM tests carried out by NPL||75|
|The surface texture scans||78|
|Conclusion in relation to the alleged substantially straight region of 0.2mm||82|
|Infringement secondary conical clearance surface||83|
|Additional defences to infringement||84|
|Section 60 (2) - "when he knows or it is obvious to a reasonable person in the circumstances"||84|
|No supply of ZDCW inserts||96|
|Squeeze between construction and infringement||97|
|Free standing invalidity case||104|
|Figure 21 of Nagashima||104|
|Figures 7 and 8 of Nagashima||112|
The alleged infringements
The skilled addressee of the 643 Patent
The expert witnesses
"Q. Obviously, therefore, you are very keen that your company should win this case.
A. Yes, I would say so" [T/2/226 lines 22-24]
"Q. So I am right, that it is hard to imagine anyone less independent than you as an expert in this case.
A. In the way you put it, yes."
"The parts that stay in my mind is when we talk about something, you need to stay on focus on your subject, not try to talks (sic) about changing your point of view, specifically this."
Common general knowledge
Indexable cutting inserts
Positively-held cutting inserts
The 643 Patent
"In certain face milling applications as shown in Figure 8 the straight cutting edge 29 may be perpendicular to the cutting axis 46 to guarantee good surface finish on the machined surface."
Claim 1 of the 643 Patent
(1) A milling cutter tool comprising:
(2) A cutter body including at least one cutting insert pocket; and
(3) At least one cutting insert positioned in the cutting insert pocket, the cutting insert comprising:
(4) A top surface comprising:
(5) Four identical convex cutting edges; and
(6) Four identical nose corners connecting the convex cutting edges, wherein
(7) Each convex cutting edge includes a curved cutting edge region and a first substantially straight cutting edge region adjacent the curved cutting edge region and wherein
(8) A radius of each curved cutting edge region is greater than or equal to 2x the radius of the largest circle that may be inscribed on the top surface
(9) A bottom surface comprising a bottom edge; and
(10) Four identical side surfaces each side surface extending between a convex cutting edge and the bottom edge
Characterised in that:
(11) Each side surface comprises:
(12) A primary conical clearance surface extending from a curved cutting edge region toward the bottom edge; and
(13) A first planar facet extending from a first substantially straight cutting edge region toward the bottom edge; and
(14) A secondary conical clearance surface extending from each nose corner toward the bottom edge;
(15) Wherein when the cutting insert is mounted in the cutting insert pocket of the milling cutter a first substantially straight cutting edge region of the cutting insert extends in a direction substantially perpendicular to a cutting axis of the cutter body.
Substantially straight cutting edge region (integer 15)
"A. But for me if I look at those figures I see the possibility of three events. Either a circle or a flat, and the circles could be both directions here depending on how you interpret the data. So it is subjective.
Q. Yes. So you cannot actually draw any conclusions from this data that support your hypothesis that it is a straight line, correct?
A. My view is still the same.
Q. But you have just told us that you can draw any number of hypotheses on this data.
Q. So why is your view still the same on this data?
A. My view is that there is a straight line.
Q. This is an article of faith, is it not, Mr Palmer?
Secondary conical clearance surface (integer 14)
The consequences of my construction of Claim 1
"Q. The fact is that over this distance, this short, at the tangent point, scientifically you just cannot say from this data whether you are looking at something that is an arc or a straight line because the unevenness of the surface is sufficient to swamp any distinction between the two. Correct?
A. That is exactly what you said, yes.
Q. That is true, is it not?
Is there a substantially straight cutting edge region of 0.2mm in the Pramet inserts?
The Defendants' design drawings
The Wendt grinding machine
Mr Palmer's experiments
Original CMM results
The Zoller tests
Mr Palmer's milling tests
"Q. So your evidence is, you would not rely on the milling test to provide any useful information in this case. Is that right?
Professor Axinte's experiments
The microscopic photographs of the workpieces
The CMM tests carried out by NPL
The surface texture scans
0.6mm feed overlapped (GF-3 page 6):
"We do not know what we have exactly on the profile of the Pramet insert."
Therefore the evidence of M. Festeau did not support the case put to Professor Axinte (a) there was a 0.2mm repeating flat portion on the traces or (b) that this showed that there was a 0.2mm "wiper" on the Pramet inserts.
Conclusion in relation to the alleged substantially straight region of 0.2mm
Infringement secondary conical clearance surface
Additional defences to infringement
Section 60 (2) - "when he knows or it is obvious to a reasonable person in the circumstances"
"supplies or offers to supply in the United Kingdom a person other than a licensee or other person entitled to work the invention with any of the means, relating to an essential element of an invention, for putting the invention into effect when he knows or, or it is obvious to a reasonable person in the circumstances that those means are suitable for putting, and are intended to put, the invention into effect in the United Kingdom."
"Advocates should recognise that where a point of patent law of general importance, such as the construction of a provision which by Treaty (either the EPC or the Community Patent Convention) is to be implemented by states parties to those conventions, has been decided by a court, particularly a higher court, of another member state, the decision matters here. For, despite the fact that there is no common ultimate patent court for Europe, it is of obvious importance to all the countries of the European Patent Union or the parties to the Community Patent Convention ("the CPC") that as far as possible the same legal rules apply across all the countries where the provisions of the conventions have been implemented. An important decision in one member state may well be of strong persuasive value in all the others, particularly where the judgment contains clear reasoning on the point."
"It is not necessary, however, for a person to know he is infringing a patent, only that the means may be used for putting the invention into effect. Accordingly, even if the supplier believed the supply was lawful and non-infringing this is no defence."
"I do, however, reject Nokia's "too complicated for us to know we infringe" point. It does not seem to me that the subsection is at all concerned with how difficult it is on the facts known to the alleged infringer to determine that he infringes. The sub-section is concerned and concerned only with whether he knows sufficient facts about what is to be done with the means supplied. If facts material to the allegation that the means are to be put to infringing use are hidden from him, then he will not infringe. But if the facts are known or obvious to him in the circumstances, their complexity does not afford a defence. Otherwise complicated inventions are less well protected than simple ones, which would not be a rational policy." (emphasis added).
No supply of ZDCW inserts
Squeeze between construction and infringement
Fig. 7 Nagashima:
Fig. 11 Dijet:
"Q. So if your evidence that the Pramet inserts fall within the claim of the Patent is correct, Nagashima's figure 7 will equally fall within the claim of the Patent, correct?
Q. You agree with that?
A. I agree with that"
"Q. Therefore, just as on the same basis that I asked you about Nagashima, if you are right and the straightness that you observed in the Pramet insert is sufficient to bring it within the claim then Dijet is also within the claim of the patent
A. I am not sure that it is used in the same context, but I understand the logic behind it yes.
Q. It is right it is not the logic?
A. The logic is there."
"Q So your evidence taken as a whole is that the risk of producing a flat area of this tiny amount of 0.3mm or whatever it is would exist for anyone who was making an insert where they were merging two radii together.
Free standing invalidity case
Figure 21 of Nagashima
"Q. If one looks at figure 21, we can see exactly the same thing, can we not, except here, instead of purely straight lines, he has introduced a radius as well.
Q. The point to the left of point 7 is again a straight line.
A. It appears to be
Q. Any skilled person who was asked to implement figure 21, his natural reaction would be to implement it with a straight portion to the left of point 7 before the corner of the tool.
A. It could be.
Q. I suggest that is exactly what he would do.
A. Figure 21, figure 22, figure 23, for me is looking at the conventional machine that we would do with perhaps a straight edge, a 90 degree tool, as against using it like this
Q. Sorry, figure 21 and 22, you were looking at a slow pass tool. Is that right?
Q. The tool is trying to explain about how the feed rate is achieving and finishing rather than anything else. He is looking at the feed rate. I look at this always to the right of figure 7, not to the left.
A. But you agree that if a skilled person was asked to actually implement figure 21, his natural first reaction would be to use a flat portion to the left of point 7.
A. Possibly, yes."
"Q. But you agree that if a skilled person was asked to actually implement 21, his natural first reaction would be to use a flat portion to the left of point 7.
A. Possibly, yes.
Q. Just looking at the corners, the actual corners shown on figure 21, which I think you have pointed out in your report are shown to be sharp, the skilled person would realise that you could simply chamfer a small radius into those corners.
A. Yes, I understand.
Q. Yes, you agree?
A. To take the corners off, yes the sharp corners."
Figures 7 and 8 of Nagashima
(2) Had I accepted the Claimant's construction of claim 1 of the 643 Patent, I would have concluded that it was anticipated by and obvious in the light of Nagashima and Dijet.
(3) On the construction of claim 1 that I have arrived at, the 643 Patent is obvious and lacks any inventive step in the light of Nagashima.