LB Europe Ltd v Smurfit Bag In Box SA

In construing a patent claim, a term without a technical meaning is given its proper ordinary meaning as a matter for the court. A device does not satisfy a claim integer merely because its feature performs a similar mechanical function to the feature described in the claim. A slightly tapered or conical inner surface was not a projection where the claim required a projection on the inside of a plug. The device therefore fell outside the claim and the appeal was dismissed.

Smurfit’s European Patent (UK) 432,070 concerned a tap and plug arrangement for securing a liquid container. The High Court held the patent valid but found that Du Pont’s Liqui-Save product did not infringe. The appeal concerned only that finding of non-infringement, specifically whether the product satisfied the claim requirement for engagement means including a projection on the inside surface of the plug. The central issue was whether the product’s slightly tapered inner surface could properly be construed as such a projection.

1. Appeal dismissed. The Court of Appeal agreed with the Deputy Judge that the Liqui-Save product did not fall within Claim 1.
2. The established principles of patent claim construction were not in dispute. The relevant question was the meaning of the claim term projection in integer (m). The term had no suggested technical meaning, so its meaning was a matter of construction for the court.
3. The product’s engagement mechanism operated by elastic deformation. Its plug had a cut-away wider portion and was slightly tapered, while the tap barrel had ribs. As the barrel was pushed in, the ribs caused tightening and, after the last rib passed into the cut-away portion, the material sprang back and held the barrel in place.
4. That mechanical operation did not satisfy the claim. The mere fact that the inside of the plug was conical or gradually tapered did not make it a projection. The court was not required to identify the precise point at which a short projection ceased to be one. On the facts, the inner surface had no projection of the kind required by the claim.
5. Since integer (m) was absent, the product did not fall within the claim. It was unnecessary to consider the respondent’s alternative contentions concerning other parts of the claim. Lord Justice Ward and Lord Justice Mummery agreed with Lord Justice Jacob.

• Court of Appeal (Civil Division): Appeal from the High Court was dismissed. The court upheld the finding that the Liqui-Save product did not infringe Claim 1.
• High Court of Justice, Chancery Division, Patents Court: The patent was held valid, but the product was held not to infringe: [2007] EWHC 510 (Pat).