Nampak Plastics Europe Ltd v Alpla UK Ltd

Patent disputes may be determined by summary judgment where the court can confidently construe the claim and decide the issue without a trial. The need to adopt the perspective of the skilled person requires caution, particularly in technically complex cases. A party seeking a trial must identify proposed evidence of common general knowledge and explain how it could realistically affect construction or infringement.

In construing a claim, the specification and stated embodiments may assist, but do not override the skilled person's common-sense understanding. Where a claim permits slightly curved sides and curved truncated corners, a notional geometric rectangle is not a reliable means of defining their boundary.

Nampak, the patentee, alleged that Alpla's plastic milk bottles infringed its United Kingdom patent. Alpla sought a declaration that its proposed ECO 2 bottle did not infringe. Birss J granted summary judgment for Alpla, holding that the ECO 2 did not satisfy claim 1's requirement that the relevant opposing sides be shorter than the pouring aperture.

Nampak appealed. It contended that expert evidence was needed to construe the claim and to decide whether curved portions formed part of the sides or the truncated corners. The central issue was whether that contention had a realistic prospect of affecting the infringement conclusion.

1. Appeal dismissed. Floyd LJ, with whom Macur and Briggs LJJ agreed, held that CPR Part 24 applies to patent disputes. The availability of summary judgment depends on the nature of the dispute. A technically complex patent may require expert evidence, but there is no such general requirement in a straightforward case. A party asserting that the court lacks the necessary material must identify the proposed common-general-knowledge evidence and explain why it could realistically affect construction. Mere hope that evidence may emerge does not suffice.

2. Patent construction asks what the claim would convey to the skilled person, not what its words mean to the court in isolation: [2004] UKHL 46. Expert evidence may establish the skilled person's knowledge and assumptions, but the court determines the meaning of ordinary English words without a special technical meaning.

3. The claim required two orthogonal pairs of sides. Neither pair had to be straight; either could be slightly curved. The relevant sides were bounded by the truncated corners, although the transition could be smooth rather than geometrically distinct. A notional rectangle superimposed on the footprint was inconsistent with the permitted curvature and could wrongly eliminate sides from a rounded embodiment. Specific embodiments could assist construction, but were not an inflexible canon: one described embodiment was plainly outside the claims because its relevant sides were longer, rather than shorter, than the aperture.

4. On the ECO 2 footprint, the perimeter had not departed sufficiently from the perpendicular at the points where it passed the aperture's extremities to become part of a truncated corner. The relevant sides therefore exceeded the aperture diameter and feature K was absent. Proposed expert evidence about bottle production or filling lines could not affect that conclusion. There was no purpose in sending the issue to trial. The respondent's notice did not require determination.

• Court of Appeal (Civil Division): By [2014] EWCA Civ 1293 , dismissed Nampak's appeal and upheld summary judgment declaring that the proposed ECO 2 bottle did not infringe.
• High Court of Justice, Chancery Division: Birss J, on 3 July 2014, granted Alpla summary judgment in its action for a declaration of non-infringement.