Bapco Closures Research Ltd & Anor v Selpac Europe Ltd

Patent claims must be construed purposively through the eyes of the skilled reader. Where a pre-characterising clause is based on identified prior art, it will normally be read as describing that art unless the claim clearly excludes it. A “spout” requires more than an opening: it is a pipe or similar conduit through which liquid flows and is discharged. A “frangible region” may consist solely of foil if that foil provides the breakable connection between the removable plastics part and the spout. A “peninsula” is an isolated portion of the removable part, distinguished from the remainder so as to limit the arc over which pulling force is applied. Applying those constructions, the closures lacked a spout and did not infringe.

The claimants, the patent proprietor and its exclusive licensee, alleged that eight foil closures supplied by the defendant infringed claims 1 and 14 of European Patent (UK) No. 1 656 306. Validity was not disputed. The trial therefore concerned construction of the independent claims, particularly “spout”, “frangible region” and “peninsula”, and their application to the defendant’s products.

The court also considered whether the foil could constitute the frangible region and, for claim 14, whether the products contained a device applying a pushing force. No expert evidence was available. The central questions were the proper construction of the claim integers and whether any of the eight closures fell within either claim.

1. Construction principles. The court directed itself by the principles in Virgin Atlantic Airways v Premium Aircraft Interiors [2009] EWCA Civ 1062. A pre-characterising clause based on identified prior art will generally be read as describing that prior art, subject to the claim’s clear meaning. Reference to prosecution history would be permitted only in an exceptional case, having regard to the applicable cost-benefit approach.

2. “Spout”. The term meant a pipe or similar conduit through which liquid flows and is discharged. It did not merely define an opening, since that would make every hole a spout. The defendant’s essentially flat closures, less than approximately 1 mm high, did not contain such a conduit. The spout integer was therefore absent.

3. “Frangible region”. The term meant a breakable connection. It was wide enough to cover bridges together with foil, or foil alone. The defendant’s inner and outer rings were wholly severed during manufacture, so no plastics connection existed. However, the foil itself could constitute the frangible region, and the products satisfied this integer on that alternative analysis. The late construction argument was admitted because it had been sufficiently brought to the defendant’s attention and caused no identified prejudice, applying Glass v Freyssinet [2015] EWHC 2972 (IPEC).

4. “Peninsula”. The term did not require protrusion. It meant an isolated portion of the removable part, distinguished from the remainder, for example by a protrusion, slit or corner. The structure had to limit the arc of the frangible region to which pulling force was applied and thereby increase tearing pressure. The defendant’s closures contained such a corner and satisfied this integer.

5. Claim 14 and disposition. Claim 14 additionally required a device mounted on the spout which applied a pushing force to a peninsula. The defendant’s closures involved pulling forces only and contained no such device. None of the eight closures fell within claim 1 or claim 14. The claimants’ infringement claim failed.