Thursday, 11 December 2008

Three cyclones or two?

I thought cyclones were dangerous things, until Sir James Dyson (as he now is) tamed them and applied them to the tricky business of extracting foreign bodies from carpets. Perhaps that opened up a new set of dangers: one friend needed a replacement power cable for his Dyson vacuum cleaner, and was horrified at the price and the fact that the spare part was an integrated assembly comprising much more than just the cable.

Dyson (the company as well as the man) have been generous to anyone presenting courses on intellectual property. The Hoover patent infringement litigation is based on a relatively easy-to-understand patent, the infringement is fairly clear-cut, and the issue of inventiveness demonstrates how there is nearly always some scope for challenging a patent. The designs case against Qualtex rehearses all those old points about spare parts, and there is trade mark litigation to which an audience of lay people can relate. Now we have an instance of the boot being on the other foot: Dyson is challenging the patentability of Samsung's "triple cyclone" design. Dyson's counsel, Piers Acland, told the court that Samsung's claims were "largely verbiage" (a criticism that could perhaps be levelled against nearly all patent claims) and (deconstructing the report in The Daily Telegraph, which talks rather more about "trademarks" than one would normally expect in a story about a patent case) argued that adding a third cyclone to the two in the Dyson patent did not amount to an inventive step.

It sounds as if the contribution to the art is at best small. If two cyclones do the job, why not three? This might be another illustration of the unhealthy and anticompetitive trend of large businesses who can afford the bills collecting more and more marginal, borderline invalid, pieces of intellectual property to extend their competitive advantage. Thank goodness that there is a comparatively resourceful challenger in this case.

Perhaps I'll have a nice new case on obviousness to refer to when next year's training course season comes around.

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