Cloud Cycle Limited v Verifi LLC & Anor

For infringement under the doctrine of equivalents, the court must first identify the claim’s inventive core. That core is derived from the claim, read in the light of the patent, while disregarding features that do not contribute to the invention. The court then applies the three Actavis questions.

A system that uses all measurements regardless of whether speed and pressure are stable does not achieve substantially the same result in substantially the same way as a patented system requiring stable measurements before calculation. The doctrine of equivalents therefore does not extend protection to materially different processing methods merely because they may sometimes use data collected over a similar period.

Cloud Cycle sought a declaration of non-infringement concerning EP (UK) 1 720 689, a patent for calculating and reporting concrete slump in a delivery truck. Verifi, the proprietor and exclusive licensee, alleged infringement only under the doctrine of equivalents.

The disputed system measured drum speed and hydraulic pressure, filtered and averaged the data, and used a cloud-based regression model. The court had to identify the inventive concept of claim 1 and determine whether the system achieved substantially the same result in substantially the same way, whether that way would have been obvious to the skilled person, and whether strict compliance with the claim was intended.

1. Outcome. The claim did not infringe claim 1 under the doctrine of equivalents. The court granted Cloud Cycle the declaration sought.
2. Inventive concept. The claim was construed without reference to the alleged infringement. The inventive core was identified from the claim and the patent’s teaching. It required comparing current pressure and speed measurements with stored measurements, determining stability, declining to use unstable stored measurements, storing current measurements, repeating the process until sufficient stability had been achieved, and calculating slump from the stored measurements.
3. The requirement to erase unstable stored measurements was not itself part of the inventive concept. Nor was storage for a full drum rotation essential. The relevant concept required sufficient stability for long enough to permit calculation. The patent continued to rely on empirical data, as did the prior art.
4. First Actavis question. The Cloud Cycle System used all speed and pressure measurements, irrespective of stability or the duration of stability. It therefore did not achieve substantially the same result in substantially the same way as the inventive concept. The infringement case consequently failed at the first question.
5. Further questions. Although unnecessary, the court held that, if the first question had been answered affirmatively, the second would also have been answered affirmatively. The third would have been answered negatively. The evidence did not establish insufficiency, and the prosecution-history letter relied upon was not fairly usable without its context.
6. The conclusion was confirmed by the Protocol on the Interpretation of Article 69 of the European Patent Convention. Extending protection as Verifi proposed would exceed fair protection and fail to provide reasonable certainty for third parties.

First-instance decision. No earlier appellate decision is stated in the judgment.