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Nampak Plastics Europe Limited v. Alpla UK Limited, High Court of Justice, London, UK, 3 July 2014, Case No [2014] EWHC 2196 (Pat)

Nampak is the proprietor of GB 2 494 349 entitled “Plastic Container”. This judgment arises from Alpla’s application for summary judgment under CPR Part 24 on its claim for a declaration of non-infringement in respect of its “ECO2” milk container. There are still ongoing infringement proceedings between the parties concerning Alpla’s plastic milk container “ECO1”, due to be heard in January 2015.

Mr Justice Birss summarised the authorities which set out the relevant principles to be applied when the court considers a summary judgment application. He noted statements that the court should hesitate before making a final decision on an issue without a full trial, and agreed with Arnold J's recent sentiments that summary judgment is often difficult in patent cases, owing to the fact that expert evidence is often required to assist the court in ruling on issues of claim construction and infringement (Starsight v Virgin [2014] EWHC 8 (Pat)).

However, Birss J repeated Jacob LJ’s statement that in cases where the technology is relatively simple “there is really no good reason why summary procedure cannot be invoked” (Virgin v Delta [2011] RPC 18) and also made clear that a party could not resist an application for summary judgment by just making vague, unspecified statements that they intended to rely on expert evidence at trial.

Alpla claimed its case was simple and turned on a point of construction of the patent which the court did not need the benefit of expert evidence to decide. Mr Justice Birss acknowledged that a patent should always be considered as it would be read by a person skilled in the art with their common general knowledge (here, in blow moulded plastics and construction of milk containers).

However, the pertinent point on claim construction for the purpose of the present application was whether the relevant sides of the claimed container may have a slight curve or whether they had to be straight. Given that the specification expressly described that the sides may be slightly curved and that there had been no suggestion that the common general knowledge of the skilled person would alter that view, Birss J had no trouble in construing claim 1 such that the sides of the container referred to could indeed be slightly curved.

Birss J then had to decide whether Alpla's ECO2 product infringed the claim as so construed. This turned on whether the length of the relevant opposing sides (top and bottom in the diagram below) was less than the diameter of the pouring aperture:

  Nampak v Alpla













Nampak contended that in order to resolve the question expert evidence was required to properly characterise the ECO2 product – for example how such bottles abutted each other on a packing line.

Birss J dismissed these submissions because Nampak were not able to explain exactly what evidence was needed or why such expert evidence was required to determine the issue. Nampak also submitted that exact measurements of the ECO2 bottle needed to be made during litigation experiments. Again, Birss J was unimpressed, stating that this was "a simple patent with a simple claim and the shape of the ECO2 could readily be understood". Consequently, Birss J held that the court was in a good position to decide the issues of infringement.

It was Nampak’s case that the relevant opposite "sides" consisted of regions 1 and 7 only, the “truncated corners” being regions 2+3, 5+6, 8+9 and 11+12. It argued that the sides were therefore shorter in length than the diameter of the pouring aperture and infringed the relevant integer of the claim. Alpla contented that the sides in question incorporated the slightly curved regions 12,1,2 and 8,7,6 making the length of those sides much greater than the pouring aperture.

Nampak argued that if it was possible for it to identify sides that satisfy the claim, then the bottle infringed (or at least summary judgment was not appropriate). Birss J rejected Nampak's argument. He noted that if both Nampak’s and Alpla’s approaches were proper and the skilled person did not know which to take, the result would be non-infringement (Milliken v Walk Off Mats [1996] FSR 292).

Furthermore, Birss J held that Nampak’s submission that a side or truncated corner can be identified by comparing the shape with a notional rectangle was not a legitimate approach when the patent itself taught that sides could have a slight curve. He held the skilled person would view the shape in plain view, just as depicted in the figures in the patent. Considering the shape of ECO2 in this way, Birss J found that the length of the first pair of opposing sides is greater than the diameter of the pouring aperture and therefore did not satisfy the claim. 

Consequently, Alpla’s application for summary judgment was allowed, and the requested declaration of non-infringement was made.

Read the judgment here.

Head note: Gillian Johnson