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05 Aug 2019

Quinn Packaging Limited v Linpac Packing Limited & R.Faerch Plast A/S [2019] EWHC 2119 (IPEC)

Quinn Packaging Limited (Quinn) sought to revoke two patents owned by Linpac Packaging Limited (Linpac) and R.Faerch Plast A/S (Faerch) relating to transparent trays with lids for the storage of fruit, fish or meat. Hacon HHJ held that both patents were invalid for lack of inventive step.

Linpac patent
Claim 1 of the Linpac patent related to a container made from polyethylene terephthalate (PET) with a peripheral flange around the upper periphery of the container. Claim 5 related to the thickness of an adhesive layer applied to the flange. Claims 6 and 7 related to denesting recesses in the container to allow for easy separation when containers are stacked.

Faerch patent
Claim 1 of the Faerch patent related to a container made from at least 85% of amorphous polyethylene terephthalate (APET) (a type of PET) with a flange described as a ‘peripheral sealing rim’. Claim 7 related to an adhesive comprising of an ethylene copolymer. In contrast to the Linpac patent, the Faerch patent required the material used in the construction of the container to comprise of two layers of APET rather than a single layer of PET.

Inventive Step
The primary issue in this case related to inventive step. A single item of prior art, an Australian Patent (Ono), was cited against both the Linpac and Faerch patents. Ono disclosed a method for manufacturing containers with a peelable cover, sealed by thermoweldable beads injected on to the edge surrounding the container (a flange).
The argument over inventive step largely came down to a single point: would a skilled person who read Ono in January 2010 and/or November 2011, knowing of the need for a better sealing solution for plastic food trays, have recognised that Ono provided the answer: the idea of creating a flange around the top periphery of the container and putting a suitable adhesive on it?

Linpac and Faerch’s case was that the long felt want proved just how clever the idea of the peripheral flange was in 2010 and 2011 and that Ono would have led the skilled person away from it. Quinn argued that the skilled person, fully aware of the gap in the market, would have grasped immediately that Ono provided the answer.

The Court dismissed arguments from Linpac and Faerch seeking to limit the teaching of Ono. The Defendants argued that the Ono patent contained a list of “must have” attributes which all containers made according to the invention are bound to have, the Court held that these qualities were not characteristics of every embodiment.
The judge did not accept arguments that the use of the beads meant that Ono taught away from applying the adhesive with a roller as described in the Linpac and Faerch patents, holding that the shape of the bead was irrelevant and the skilled person would understand the bead to become a layer when the lid was applied.

Linpac patent
On the basis of the above conclusions, the judge held that Claim 1 of the Linpac patent lacked inventive step. He held that the details of the thickness of adhesive in Claim 5 was ‘parametritis’ (stipulating that a feature of the alleged invention must be present within a stated range, where the range is entirely arbitrary) and thus also lacked inventive step.

When considering claims 6 and 7, Linpac admitted that the proposed amendment to claim 6 was not entitled to the priority dates of the Linpac patent. Therefore, Quinn relied upon the Linpac priority filings as prior art. Despite changing the position of the denesting area, the judge held that moving this area would have been obvious. Therefore claims 6 and 7 were obvious.

Faerch patent
The judge held, for the same reasons and noting that there was no technical connection between the peripheral flange and the multi-layered APET as described in the Faerch patent, that Claim 1 lacked inventive step. He also held that, at the priority date, it was not inventive to use ethylene copolymer with wax as an adhesive, concluding that claim 7 lacked inventive step.

Amendments, Extended Protection and Added Matter
The judge considered arguments regarding an application to amend the Linpac patent and arguments by Quinn that such amendments would extend patent protection and lead to added matter concerns. Although, the judge did not agree with Quinn that all amendments added matter, he held that the amendments would also lack inventive step and thus were not permitted.

On considering Quinn’s arguments on extended protection, the judge held that further submissions would have been required to resolve the issue. However, given his conclusions on inventive step, he considered that Quinn’s arguments regarding added matter fell away.

A copy of this judgment can be found here.

Headnote: Jonathan Solomon, Marks & Clerk Law LLP