Saab Seaeye Ltd v Atlas Elektronik GmbH & Anor

In a patent action, obviousness is assessed by asking whether the claimed invention, viewed without hindsight, was obvious to the skilled but unimaginative addressee at the priority date. The structured Pozzoli approach is useful but does not replace that statutory question. A chain of successive modifications may improperly reconstruct the invention after it has been made. A claim requiring detachable connection may require more than a surface which is merely gripped, although the precise meaning depends on the claim and its context. A claim to simultaneous attachment and detachment is not obvious where the prior art leaves release to an operator and supplies no adequate motivation for automatic release. A patent is not insufficient for ambiguity merely because practical variables affect the scope of a term such as neutral buoyancy, where the skilled team can design around those variables.

Saab sought revocation of two patents owned by Atlas Elektronik GmbH and ECS Special Projects Ltd. The patents concerned underwater mine-clearance appliances delivered by remotely operated vehicles, including detachable connections, neutral buoyancy, nail-gun attachment, spoofing devices and impact-initiated attachment mechanisms.

The pleaded grounds were lack of novelty, obviousness and, for the 576 patent, insufficiency. The defendants counterclaimed for infringement. They unconditionally sought amendment of the 576 patent and did not defend it in unamended form. The central questions were whether the amended claims were valid, whether the prior art disclosed or made obvious their integers, whether the 576 patent was insufficient, and whether Saab’s Ballista product infringed.

1. Disposition. Claims 1 and 2 of the 576 patent were revoked. The remaining revocation claims failed. The infringement claims succeeded to the extent stated, and Ballista infringed claim 9 of the 576 patent. The court allowed the proposed amendment to the 576 patent, subject to validity, and directed that further relief be addressed separately.
2. Construction. In claim 1 of the 576 patent, “means for detachable connection” did not require an active element on the clearance appliance. Passive means could suffice, but a mere gripping area was not a detachable connection because the language required some degree of attachment or interlinking. In claim 9, and consequently claim 10, the means had to include an active element on the appliance capable of being operated to release the connection. In the 861 patent, a “trigger mechanism” meant a mechanical rather than an electronic, hydraulic or other non-mechanical mechanism.
3. Validity. Applying Medimmune v Novartis [2012] EWCA Civ 1234 and the structured approach in Pozzoli v BDMO SA [2007] EWCA Civ 588, the statutory question remained whether the invention was obvious at the priority date. The court rejected hindsight-based chains of supposition. BAe made claim 1 obvious once the detachable-connection integer was properly understood, and claims 2 and 5 were respectively obvious and not obvious. Claims 9 and 10 were not obvious. The corresponding 861 claims were not shown to be obvious, save that repositioning the trigger to the front of the housing was obvious.
4. Insufficiency and infringement. “Neutral buoyancy” was sufficiently intelligible. Minor variation from absolute neutrality did not create ambiguity-insufficiency, and variations in water density or the delivery ROV could be accommodated by the skilled team. Ballista’s silver rod formed part of the claim 9 connection means; its retreat operated the means and released the device, so claim 9 was infringed.