EPLAW PATENT BLOG

UK – Bapco v. Selpac

Posted: March 31st, 2016

(1) Bapco Closures Research Limited (2) Aptargroup, Inc. and Aptargroup Inc. v Selpac Europe Limited, High Court of England and Wales, Intellectual Property Enterprise Court (Douglas Campbell QC Deputy Judge) 18 March 2016, neutral citation No. [2016] EWHC 550 (IPEC).

The specialist Intellectual Property Enterprise Court (IPEC) in London had to consider whether a word appearing in the pre-characterizing clause or preamble can have a different meaning as it did in the prior art on which the wording of the pre-characterizing clause or preamble was based.

The patent in suit was EP (UK) 1 656 306. It concerns devices that use a ring pull or tab to tear a foil seal in a closure for a container.

Claim 1 started with the words “A closure comprising a spout defining an opening …”. Those words were stated in the patent to be part of the disclosure of the prior art.

One of the issues in the case was the construction or interpretation of the word “spout”. It emerged in pre-trial procedures that the word “spout” did not have any special meaning in the art. Neither side was allowed to adduce expert evidence on the point. In the simplified IPEC procedures, the judge is very selective as to what expert evidence will be allowed at trial.

In the absence of testimony from experts, each side put forward its own arguments as to the meaning of the word “spout”, but the judge turned first to the Shorter Oxford Dictionary. He thought the most relevant meaning there was “a pipe or similar conduit through which water or other similar liquid flows and is discharged”.

The Claimants did not accept this definition, for reasons associated with the issue of infringement. They said that the spout merely defines the opening through which the contents exit the container. The judge therefore had to look at the prior art on which the pre-characterizing clause or preamble was based. Neither of the two relevant prior art documents actually defined the word “spout” but they did give various examples of what the patentee must have regarded as a spout. In one of them, the dispensing aid was referred to as a “spout or funnel” or as a “nozzle or funnel”.

Having looked at these prior art documents in some detail the judge came to a decision as to the meaning of spout”. He did not accept the Claimants’ definition of something that merely defined an opening, since on that view anything with a hole would have a spout. He came back to his own dictionary definition with which, in his view, the prior art documents were consistent. And the patent itself expressly stated that the prior art documents disclosed a closure having a spout. “Spout” in the patent had the same meaning as in the prior art on which the wording of the pre-characterizing clause was based

This finding was fatal to the Claimants’ case on infringement. The Defendant’s closure was essentially flat, less then 1mm. All the other features of the claim were present, but there was no spout. After the ring pull in the Defendant’s device has been pulled in order to tear the foil, the resultant arrangement could not be described as being a pipe or conduit as in the dictionary definition. It was just an opening. The 1mm height of the closure itself was held to be de minimis.

A copy of the judgment can be found here.

Head note : Gregor Grant, Marks & Clerk Solicitors LLP

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