Skip to content

Nampak Plastics Europe Limited v Alpla UK Limited, UK Court of Appeal, 9 October 2014 (Briggs LJ, Floyd LJ, Macur LJ), Case No. [2014] EWCA Civ 1293

In the past applications for summary judgment in UK patent cases have rarely met with success: the Court must adopt the role of the ordinary skilled person to interpret the claims, common general knowledge and prior art, all of which requires expert evidence. However, in a recent judgment the UK Court of Appeal has issued a decision which is likely to make it easier to obtain summary judgment in certain patent cases.

Nampak is the proprietor of GB 2 494 394 which related to a design of a plastic milk container. Nampak commenced infringement proceedings in respect of Alpla’s “ECO 1” design. Alpla denied infringement and sought a declaration of non-infringement in respect of a proposed second design of the bottle, “ECO 2”. Nampak declined to give the declaration of non-infringement, and Alpla applied for summary judgment under CPR Part 24. In July 2014, the first instance judge (Birss J) allowed Alpla’s application and Nampak appealed, arguing that the judge was wrong to grant summary judgment without hearing expert evidence which would assist in determining issues of construction and infringement.



The leading judgment was given by Floyd LJ (an experienced patents judge), who noted that while the fact that a dispute relates to a patent does not automatically render it unsuitable for summary judgment, caution must be exercised. The Court cannot simply decide what the words of the patent mean – it must consider what the ordinary skilled person would understand them to mean.

The key issue on claim construction related to whether the sides of the container had to be straight, or whether they could have a slight curve. At first instance, Birss J held that a side does not cease to be a side merely because it is not geometrically straight. On appeal, Nampak argued that the judge purported to characterise the ECO 2 design through the eyes of the skilled person which he could not do without expert evidence as to the characteristics of that skilled person. Floyd LJ noted that this was not a complicated case, with a simple patent and as such the warnings in the authorities regarding the dangers of summary judgment in patent cases do not apply with such force. That said, there could be reasonable grounds for allowing a fuller investigation at trial even in very simple cases. Each application will therefore be assessed on the specific facts of the case. It was in this case for Nampak to show why there would be expert evidence that required full investigation at trial.

Based on the descriptions and information contained within the specification, Floyd LJ reached his conclusions on claim construction and agreed with Birss J’s findings. He said that he could not see how such a construction was going to be shown to be erroneous by subsequent expert evidence. The appeal was therefore dismissed and summary judgment was given in Alpla’s favour.

Decisions relating to applications for summary judgment will clearly be based on the specific facts of the case. As acknowledged by Floyd LJ, even technically simple cases may benefit from expert evidence. However, this case demonstrates that expert evidence is not always necessary and, in such cases, it should now be easier to obtain summary judgment.

Read the decision here.

Head note: Sarah Routledge, Marks & Clerk Solicitors LLP