Posted: December 3rd, 2015
Saab Seaeye Limited -v- Atlas Electronic GmbH and ECS Special Projects Limited and Adrian Dann and Blueprint Design Engineering Limited (t/a Blueprint Subsea) and James Barratt, High Court (Patents Court), Mr Justice Mann, 4 November 2015
The English Patents Court has partially upheld the validity of two patents, GB 2 482 576 (GB 576) and GB 2 483 861 (GB 861), owned jointly by Atlas Electronic GmbH and ECS Special Projects Limited, which relate to underwater mine clearance operations. The Court went on to hold that certain claims of both patents had been infringed by Saab Seaeye Limited (“Saab”) with its Ballista product.
Saab brought an action for revocation against the two patents. It alleged that GB 576 was invalid on the grounds that the patent lacked novelty over an earlier device in development in the early 1990s (the ‘SeaSting’) and/or GB 2 234 203 A (BAe), obvious over BAe and/or SeaSting, and that it was insufficient. The patentees made an unconditional application to amend the patent, so the invalidity case proceeded on the basis of the amended claims. The patentees alleged that claims 1 and 9 were infringed.
Saab alleged that GB 861 was invalid on the grounds that it was obvious over Bae and/or SeaSting. Claims 1 and 3 were said to be infringed.
Saab acknowledged that its historic Ballista product infringed claims 1 and 3 of GB 861 but there was a limited dispute between the parties in relation to infringement of claims 1 and 9 of GB 576.
Mr Justice Mann found that EP 576 was not anticipated: Saab failed to establish on the evidence that SeaSting disclosed a particular feature of the claims of GB 576. On obviousness, Mann J found claims 1 and 2 of GB 576 obvious over BAe, but not claims 5, 9 or 10. Claims 5, 9 and 10 were similarly not obvious over SeaSting. He also found EP 576 to be sufficient. Of the valid claims, claim 9 was found to be infringed.
The Judge found GB 861 to be valid.
An interesting question arose as to whether the SeaSting project and certain features of it would have been common general knowledge (CGK). The disclosure in relation to SeaSting took the form of presentations to naval forces, brochures, papers presented at conferences and content in a particular annual publication in the field. SeaSting had been in development around 15 – 20 years before the priority date which was in 2010, and the project was abandoned in 2000. The Judge considered that the skilled team would not look back to past publications when working at the priority date, and that the project was not sufficiently memorable that it would have been CGK for a skilled person, even if he or she had attended the original conferences.
When deciding obviousness in relation to GB 576, the Judge concluded that the key issue was not addressed at trial, and therefore requested post-trial submissions on the issue from the parties. He considered that this enabled him to deal fairly with the point.
Read the decision (in English) here.
Headnote: Amy Cullen, Bristows LLP