Nampak Plastics Europe Ltd v Alpla UK Ltd

Summary judgment may be granted in a patent case where the court can confidently construe the claim and resolve the issue on the material before it. The general difficulty of patent cases does not permit a patentee to resist the application through general assertions that expert evidence, measurements or experiments may be needed. The patentee must identify with some specificity the factual, expert or common-general-knowledge evidence said to affect the result.

Where a patent expressly permits sides to have slight curves, claim construction should not treat geometrical straightness as decisive. The skilled person should identify sides and truncated corners by the natural characterisation of the overall shape, read in the context of the specification. A speculative alternative characterisation is insufficient to establish a realistic prospect of success.

The claimant owned a patent for a blow-moulded plastic milk container. The defendant sought a declaration under section 71 of the Patents Act 1977 that its proposed ECO 2 bottle did not infringe.

The defendant applied for summary judgment under CPR Part 24. The claimant initially pleaded no positive case on infringement, but advanced at the hearing a case that the ECO 2 design satisfied the claim’s requirements concerning truncated corners and the relative length of opposing sides. The central issues were whether further evidence was required and how the relevant sides and corners should be identified.

1. Summary judgment. The application was allowed and a declaration made that the ECO 2 product, as depicted in the application, did not infringe. The claimant’s pleaded position was inadequate, but the application was determined on its merits rather than by holding the claimant to that position.
2. The test under CPR Part 24 is whether the defendant has a real, rather than fanciful, prospect of success. The applicant bears the evidential burden. The court must not conduct a mini-trial, but it may analyse assertions and consider evidence reasonably expected to be available at trial.
3. Summary judgment is often difficult in patent cases because the court may need expert evidence about the common general knowledge and must adopt the mantle of the skilled person. That is not an automatic bar. A party resisting summary judgment on that basis must identify with some specificity the evidence, factual issue or common general knowledge said to affect the outcome. General assertions about expert evidence, measurements or experiments were insufficient here.
4. Reading the patent as a whole, claim 1 was not confined to geometrically straight sides. The specification expressly contemplated slight curvature. The issue was therefore not whether a particular region was mathematically straight, but how the skilled person would identify the sides and truncated corners in the overall plan-view shape.
5. The claimant’s notional-rectangle analysis was rejected. It ignored the teaching that sides might be slightly curved and could produce the absurd result that an entirely curved footprint had no sides. The natural characterisation of the ECO 2 was a broadly rectangular shape with four generally triangular truncated corners, two pairs of opposing sides, and a slightly curved pair of sides generally perpendicular to the part line. Those sides were longer than the pouring aperture’s diameter, so feature K was not satisfied and the product did not infringe.