No Climb Products Limited v Gas Safe Europe Limited

A patent claim requiring a spacer to move between a position convenient for carrying or storage and a position determining a minimum distance does not, without express limitation, require the spacer to be telescopically compressible or permanently fixed to the container. Dependent claims may confirm that those features are not required by the broader claim.

For contributory infringement under section 60(2) of the Patent Act 1977, the supplier must know, or it must be obvious to a reasonable person, that the supplied means are suitable and intended to put the invention into effect. The staple commercial product exception is unavailable where the product has a single intended use, even if it may have other possible uses or resembles prior art.

No Climb Products Limited owned European Patent (UK) No. 2 265 516 B1 for testing apparatus for gas or smoke detectors. It alleged that Gas Safe Europe Limited infringed the patent by marketing the DetectaReach apparatus and replacement DetectaSmoke aerosol containers.

The principal issues were the construction of claim 1, infringement of claims 1, 8 and 9, contributory infringement under section 60(2) of the Patent Act 1977, the staple commercial product defence under section 60(3), and alleged lack of novelty and inventive step over Ackerman, Wantz and Spohn.

1. Construction. Claim 1 did not require the spacer to be telescopically compressible. Claim 5, which expressly required telescopic extension, strongly supported that construction. Claim 1 also did not require the spacer to be permanently fixed to the container. Claim 2 and the embodiments in Figures 7 and 8 supported that conclusion.
2. Infringement. DetectaReach fell within claim 1. Its wider and narrower housing parts were sections for the purposes of claims 8 and 9; those claims did not require telescopic sections or two sections movable relative to one another to expose the aperture. Claim 8 was infringed because access to activation of the valve was inhibited in the first position. Claim 9 was also infringed because the requirements in integers 9.2 and 9.3 were alternatives, and integer 9.3 was satisfied in the second position.
3. DetectaSmoke. The requirements of section 60(2) were satisfied. The containers were means relating to an essential element of the invention, were suitable for putting it into effect, and the supplier knew, or it was obvious to a reasonable person, that they were intended for that use. The court relied on the formulation summarised in Jeff Gosling Limited v Autochair Limited [2025] EWHC 1687 (IPEC), drawing on the authorities cited there.
4. Staple commercial product defence. Applying Nestec SA v Dualit Ltd [2013] EWHC 923, DetectaSmoke containers were not staple commercial products. Their single intended use was testing gas or smoke detectors. The possibility that containers of that type could be filled with other materials, or used in a prior-art arrangement, did not establish the defence.
5. Validity. Claim 1 was novel over Ackerman and Spohn because those references disclosed enclosed delivery systems without a spacer. Wantz disclosed a spacer but did not clearly disclose a first position convenient for carriage or storage. The same distinctions meant that claim 1 involved an inventive step over each reference.
6. Order. The patent was valid. Claims 1, 8 and 9 were infringed by the marketing of both DetectaReach and DetectaSmoke.