Monday, 16 August 2010

Cups and saucers, Patent Office opinons, and costs, in Manchester

I have been reading the report of a case before the Hearing Officer called Wragg v Donnelly, involving a claim for a declaration of non-infringement and arguments about validity based on obviousness. The technology concerns a device for allowing steam to escape from a boiler and be safely conveyed to the outside world. This is technology that I can understand.
The clever thing here is that the steam does not just blast straight out from the outlet pipe, which might remove the skin of anyone unfortunate enough to be passing. Nor does it resort to the rather primitive solution of a Yorkshire Bend, or a Y-joint, directing the steam back towards the wall. A Yorkshire Bend appears to be a simple length of copper pipe with a 90 degree bend in it, and therefore not very exciting - not even something that merits a fancy name.
The invention replaced whatever was used to direct the emission back on itself with a "substantially cup-shaped" cap to catch whatever came out of the pipe. The use of a cup-shaped device to reverse the flow of fluids was known in other fields of plumbing - and I imagine, though it isn't mentioned in the decision, jet engines.
The case provides a nice example of how contributory infringement may be important. The claim (there being a single independent one) required a conduit that would be attached to the boiler's pressure relief valve and pass through a wall to the outside world, then an attachment on the end of conduit to reverse the flow safely. The alleged infringement provided a cowl (and tellingly the manufacturer was a maker or chimney cowls) to reverse the flow, but not the conduit. The cowl was saucer-shaped rather than cup-shaped, did not present a concave inner surface to the stream of fluid (it was flat, which is not uncommon in the centre of a saucer) and lacked an end open to the environment, as the fluid was allowed to escape through holes.
Is a saucer substantially cup-shaped? The inclusion of the word "substantially" probably doesn't qualify to be referred to as inspired - but it certainly makes a big difference. Perhaps the drafter of the specification is in the habit of drinking his or her tea out of the saucer ... and perhaps the Hearing Officer was, too, because applying a purposive construction to the words he declined to make a declaration of non-infringement.
He also declined to award costs greater than those provided for in the published scale. The patentee's costs were said to be in the order of £10,000, and as there had been two opinions from the Patent Office both of which had gone against him, his counsel (Jane Lambert) argued that the defendant should not have to bear the brunt of the costs. The opinions should be regarded as a form of alternative dispute resolution, which the parties are generally obliged to try, she argued: but the Hearing Officer preferred the view put by Alistair Wilson, QC, for the claimant - that if costs were awarded in this way parties would be deterred from exploring the issues in a manner simply not possible as part of the opinion process, with cross examination and all the other trappings of a hearing.
Most important of all, perhaps, is that the hearing was conducted in Manchester, the first time this has happened as far as I know. Perhaps in due course there will even be hearings in the North!


Peter Groves said...

One other point I would add - the proof-reading of this opinion leaves a great deal to be desired. (Before casting asperstions I have made sure I checked my own posting.) A couple of places where extraneous words meant that the language just didn't make sense; typos; lost possessive apostrophes, and the wrong sort of apostrophes for abbreviated patent numbers. Not impressive - though I have just finished reading the latest Alexander McCall Smith, and noticed that the proof-reading disease has spread to his publisher too.

Peter Groves said...

Great! I must check my comments more carefully too! I do know how to spell "aspersions", I assure you ...


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