Environmental Defence Systems Ltd v Synergy Health Plc & Ors
2014
INTELLECTUAL PROPERTY ENTERPRISE COURT
United Kingdom
CORAM
- HIS HONOUR JUDGE HACON
Areas of Law
- Intellectual Property Law
2014
INTELLECTUAL PROPERTY ENTERPRISE COURT
United Kingdom
CORAM
AI Generated Summary
EDS alleged that Synergy and Gravitas infringed their patent on method of manufacturing barrage units by making absorbent pads. The court evaluated if using the known method to manufacture pads included an inventive step. It held there was no inventive step in claims 1, 6, and 9. Major legal principles discussed were the identification and roles of a person skilled in the art.
Judgment
Judge Hacon :
Introduction
This is the trial of a preliminary issue in an action for patent infringement. European Patent No. 2 393 989 (“the Patent”) claims a method of manufacturing barrage units, which are used for flood defences in a similar way to sandbags. In broad terms the method of the invention is to make water absorbent pads and then arrange them within a porous bag or sack, forming the barrage unit.
The Claimant (“EDS”) is the owner of the Patent and sells its patented barrage units under the name ‘Blastsax’ and ‘Floodsax’.
The First and Second Defendants, who need not be distinguished and whom I will collectively call ‘Synergy’, are manufacturers and suppliers of healthcare products. On 1 July 2008 EDS and Synergy entered into an agreement by which Blastsax and Floodsax barrage units were manufactured by Synergy and supplied to EDS. That agreement came to an end in June 2011.
It is common ground that since about 1994 Synergy has been making absorbent pads according to the method for making such pads described in the Patent, using what was referred to as the ‘Sanpro’ machine. At least until 2007 these were used solely for healthcare purposes, in particular as incontinence pads.
The Third Defendant is a manufacturer and supplier of flood defence products including substitutes for sandbags. The Fourth and Fifth Defendants are officers of the Third Defendant. I will refer to them collectively as ‘Gravitas’. Gravitas sells sandbag substitutes for use in flood defences and for non-flood purposes such as stabilising temporary traffic signs. They are sold under the trade names ‘HydroSack’, ‘HydroSnake’, ‘ TrafficSack’ and ‘Hydro-pad’. It is common ground that these were made using absorbent pads supplied to Gravitas by Synergy and that the absorbent pads were made according to the method described in the Patent. EDS claims that in consequence both Synergy and Gravitas have infringed the Patent.
One of the matters raised by Synergy in its Defence is that from about 2007, before the priority date of the Patent (19 November 2009), they had not merely been making absorbent pads as described in the Patent, they had been taking the further step of sewing the absorbent pads into bags and thus performing the totality of the claimed invention. This led to points pleaded in relation to s. 64 of the Patents Act 1977 (right to continue an act done before the priority date) and s.72(1)(b) (a patent granted to a person who was not entitled to it).