Posted: March 31st, 2010
Schütz (UK) Limited v. Werit UK Limited and Protechna SA, High Court of Justice, Chancery Division, Patents Court, London, UK, 31 March 2010, Case No.  EWHC 660 (Pat), with thanks to Stephen Bennett, Lovells
Today, the approved judgment in of Mr Justice Floyd has been published in relation to three patents held by Schütz, relating to intermediate bulk containers (IBCs) for transporting liquids and powders. There are three remarkable features of the action. Werit's infringement is alleged to consist of supplying its own plastic bottles to be retrofitted by a third party, Delta Containers Limited, into second hand Schütz cages. This is alleged to amount to contributory infringement within section 60(2) of the Act. The issues of whether the alleged infringements fall within the scope of the claims thus turn on whether Schütz's cage falls within its own patents. Secondly, Werit maintain that Delta's acts of primary infringement relied on are not infringements because they do not amount to 'making' the patented product. Thirdly there is a special, partial defence to damages which arises out of an agreement made between Protechna and Schütz, which is said to contravene section 44 of the Act.
Schütz abandoned one of the three patents in suit shortly before trial. In relation to the remaining two, Floyd J held that neither patent was infringed as Delta's activities do not amount to making the patented product. He found both patents valid. One was not infringed for the further reason that the Schütz IBCs do not fall within the claim. The section 44 defence failed.
Read the judgment (in English) here.