Case No: CC12P03112
Neutral Citation Number: [2013] EWPCC 32
IN THE PATENTS COUNTY COURT

Rolls Building
7 Rolls Buildings
Fetter Lane
London EC4A 1NL

Date: 16th July 2013 

Before :

MR RECORDER ALASTAIR WILSON QC
(Sitting as a judge of the Patents County Court)

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Between :

	SCOPEMA SARL	Claimants	
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	SCOT SEAT DIRECT LIMITED	Defendants	

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GEOFFREY PRITCHARD instructed by Geldards LLP for the Claimant
DUNCAN CURLEY of Innovate Legal for the Defendant

Hearing date: 4th July 2013
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Judgment
 Mr. Recorder Alastair Wilson QC: 
1.	This is an action for infringement of European Patent number 2 121 377, entitled (in translation from the original French): “Tilting device for a seat back”. 
2.	There is no attack on the validity of the Patent: the only question is whether the Defendants’ product infringes.
3.	The Patent was originally filed in French. I have been supplied with a certified translation of the specification, though comparing it with the original French did suggest to me that there were at least one point at which the translation diverged from what was intended by the original. I will deal with that point when I get to it.
4.	The Patent is concerned with what might be described as a folding mounting bracket for fitting to the backrest of a seat (typically a vehicle seat). The use of the patented brackets enables the backrest to be easily moved between its usual generally vertical position and a horizontal position, where it can form, for example, part of a bed.
5.	The Defendants manufacture devices of a generally similar nature, also for the backrests of vehicle seats which are to be folded to the horizontal, but they contend that for three reasons the products in suit are outside the scope of Claim 1 (and therefore all subsequent claims) of the Patent. This case accordingly depends upon the construction of Claim 1. 
6.	I was reminded of all the usual authorities, and of the Protocol on the Interpretation of Article 69 of the EPC. I do not think it necessary to burden this judgment with extensive quotations from the decided cases, but in what follows I have sought to give effect to the principles stated in them, and in particular to the useful summary of those principles to be found in Virgin Atlantic v Premium Aircraft [2009] EWCA Civ 1092.
7.	The specification describes the need for the hinge devices to be capable of absorbing large forces, because it is desirable to fit a seat belt to the top of a reclining backrest, which, particularly in the case of an accident, could impose huge forces on the brackets holding the backrest. In addition to the safety considerations, it is desirable for the device to be both easily operable (for practical reasons) and capable of being concealed (for æsthetic reasons).
8.	The specific embodiment described in the Patent is a simple enough mechanical device, though as commonly happens in mechanical device cases difficult issues of construction arise as to the precise scope of the monopoly claimed. 
9.	Claim 1 of the Patent reads as follows
Device for tilting the backrest (8) of a vehicle seat from a first position of the seat, referred to as the “sitting position”, to a second position of said seat, referred to as the “reclining position”, the said device comprising a tilting component (17) which is fixed to the backrest and is mounted for pivoting about a shaft (18) which is integral with a fixed support (2), the said tilting component being held in the first position by an immobilising component (9), one end (21) of the said tilting component (17) being provided with a housing (22) for receiving a rod (13) belonging to the immobilising component (9), one surface (23) of the housing (22) being adapted to bear against a complementary surface (24) of the rod (13) belonging to the immobilising component (9), the said receiving housing being a notch (22) which is arranged on one edge of the said end (21) and is configured so as to cap, over part of its circumference, the rod (13) of the immobilising component (9), that edge of the end (21) on which the notch (22) is arranged being selected in such a way that pulling on the backrest in the sitting position increases the bearing of the end (21) against the said rod (13) of the immobilising component (9) and that the geometry of the end (21) allows it, when the backrest (8) passes (F4) from its second position to its first position, to unlock the immobilising component (9).

10.	The numbers are no more than aids to following the structure of the claim: they link the words of the claim to components of the specific embodiment, but they must not be taken as limiting the actual words of the claim to the particular example which is indicated by the reference numbers. As Jacob LJ observed when the same point was raised in Virgin Atlantic v Premium Aircraft [2009] EWCA Civ 1092:
“Once one comes to construe the claim, it must be construed as if the numbers were not part of it. To give an analogy, the numbers help you get the map the right way up, they do not help you to read it to find out exactly where you are.”

11.	There is a further feature of Claim 1, namely the unfamiliar, at least to me, note “(F4)”. This appears to refer to an arrow in Figure 5: Figure 5 depicts the specific described embodiment of the invention in its reclining position, and indicates by means of the arrow F4 its direction of movement when rising to the sitting position. (In use, of course, the base of the device is fixed to the floor, and the component 17 is fixed to the backrest of a seat.)

12.	Figure 4 also helps to understand the manner in which, in the specific embodiment, “the geometry of the end (21)” cams the locking pin (or “rod (13)”) out of the way as the backrest is lifted, ready for the locking pin to click into position in what is described – and claimed – variously as a “housing (22)” or “notch (22)”. 

13.	The “tilting component (17)” pivots about the shaft 18. The top end of it can be attached to the backrest, and the bottom is profiled with various features which enable it to lock properly in its vertical position. The three circles near the bottom of the diagram indicate:
a.	in the middle, a pivot or shaft 10 for the whole locking mechanism. It holds what looks in cross-section like a dog leg, (though it is actually made of more than one component locked onto the shaft 10). The dog leg holds: 
b.	on the left, the end of the locking pin 13 (which in due course when the backrest is raised clicks into the notch 22), and
c.	on the right a handle, in the form of a rod 15. This is springloaded downwards, so that, as seen in figure 4, the locking pin 13 is urged upwardly against what amounts to a cam surface at the bottom of the tilting component 17. The handle can be lifted (against the force of the spring – not shown in figure 4) to move the locking pin 13 out of engagement with the notch 22, which allows the backrest to be lowered.
14.	When the backrest is rotated in the opposite direction from the arrow F, the locking pin rides along the cam surface until it is free to click upwards into the notch 22, thereby locking the backrest from moving back again in the direction F. The backrest is prevented from moving any further in the opposite direction by a different mechanism: a protrusion 210 from the cam surface comes up against the pivot pin 10, which acts as a stop to prevent the backrest moving any further in that direction. Curiously enough none of the claims contains any provision for restraining the backrest from movement of the kind which in the specific embodiment is prevented by the protrusion 210. 
Construction of Claim 1
15.	Although in principle, as has been often said, it is necessary to construe the claims of a patent independently of any alleged infringement, it is a waste of effort to contemplate the precise construction of all the integers which have not been put in issue. Even those integers which are in issue may be difficult to construe in the abstract; it is often only by looking at the alleged infringement that one can appreciate the construction issues that actually arise. The real point is that you should not allow the fact that the Defendant is doing something in a particular way to influence you in deciding whether the claim on its true construction covers that or not.
16.	There are nevertheless some important general points to be made about Claim 1 in this case.
17.	Claim 1 is not on its face a claim to a seat embodying the relevant bracket. It appears to be a claim to the device alone, without the backrest. Nor is there any express mention of the spring which, in the specific embodiment, plays an important role in urging the locking pin into its notch when the backrest is upright. The Defendants contended that the various references in Claim 1 to the backrest required me to read the claim as a claim to the combination of device and seat. Mr. Curley particularly relied on the reference in Claim 1 to “selecting” the position of the notch 22 by reference to “pulling” the backrest. I reject this construction. As Mr. Pritchard pointed out, not only is Claim 1 on its face a claim to the device alone, but Claim 9 is claim to a vehicle seat incorporating a device as claimed in any previous claim. As I read Claim 1, the references to the backrest merely indicate what the bracket per se is destined to be fitted to, and that the “selection” of the position of the notch 22 depends on the direction in which the backrest is ultimately destined to fold: it is only in that direction that the locking mechanism has any role to play. Rotation in the opposite direction is, in the specific embodiment, prevented in the manner described above, though it could obviously be achieved by any kind of end stop mechanism, which could be part of the bracket, but would not necessarily be.
18.	Similarly, I do not find in Claim 1 any reference to the spring (or any other means) which, in the specific embodiment, urges the locking pin 11 into engagement with the cam surface at the bottom of the tilting component 17, and ultimately causes the pin to click into place in its notch 
19.	The Defendants also invited me notionally to divide the integers of the claim into features which related respectively to the advantages sought by the invention, namely “safety”, “ease of operation” and “ease of adaptation”.
20.	Although I do agree that the advantages sought by the invention may provide guidance as to the meaning of particular features of the claim (if there is otherwise any doubt), it does not seem to me helpful to divide the features up in this way. In any case, all the features of the claim inter-relate to provide one composite device, and most of them contribute, to a greater or lesser extent, to all its advantages.
21.	The Claimants also invited me to take as an “overarching point” the fact that the Defendants’ bracket bears more than a passing resemblance to the Claimants’. I disagree. This is a patent case, not a copyright case. If the product falls within Claim 1 of the Patent, it infringes. If it does not, it does not. No amount of superficial resemblance can alter that.
22.	I turn now to the specific non-infringement points relied on by the Defendants.
The “notch” point
23.	Claim 1 of the Patent requires that the “surface (23) of the housing (22) [is] adapted to bear against a complementary surface (24) of the rod (13)”. The Defendants contended that the natural meaning of the word “complementary” in Claim 1 is that the two shapes should be essentially identical. This natural meaning is illustrated by the specific embodiment, where the surface of the rod 13 has a round surface which matches and bears against the round surface of the housing or notch 22. 
24.	The Claimants contended that the word “complements” in Claim 1 was not intended to have anything at all to do with the relationship between the surfaces of the locking pin and the notch. They relied on a passage in the translation of the specification which says: “This notch 22 comprises a surface 23 that is adapted to come into contact with the surface 24 that complements the rod 13.” Thus, they said, there is no requirement that the surface of the notch should be complementary to the surface of the rod 23, merely that the surface 24 of the rod should be in some way complementary to the rod itself. The notion of the surface of an object being complementary to the object itself does not, however, make sense, either inside or outside the context of the Patent. The corresponding French text says: “cette encoche 22 comprend une surface 23 adaptée pour venir en appui contre une surface 24 complémentaire de la tige 13.“ This makes much more sense: the surface 24 of the rod is evidently here described as being complementary to the internal surface 23 of the notch, which is essentially the same as the most natural reading of the relevant passage in Claim 1. 
25.	In my view, therefore, there is nothing in the description which supports the Claimants’ unnatural approach to the grammar of Claim 1: the surface 23 (of the rod) is to be complementary to the surface 24 (of the notch). What is meant by the word “complementary” remains, however, to be considered. 
26.	Clearly the word “complementary” is a word which is capable of embracing a case (such as the specific embodiment) where the two surfaces are essentially mating surfaces, like (to use an analogy mentioned at the trial) a cross-section of a skull cap on a man’s head or a hip joint in its socket. This is indeed probably the more natural meaning of the word “complementary” in Claim 1, but could it in the context of this Patent also cover a case in which the notch merely touches the rod at two points, like a dunce’s cap on a boy’s head? (Of course in reality there is line contact between the locking rod and the whole thickness of the steel of the tilting component, but since we are looking at views of the device it is convenient to talk about contact at a point.)
27.	The Defendants further rely in support of their narrow construction on the requirement further on in the claim that the notch must “cap, over part of its circumference, the rod (13)”. They say that this further points in the direction of complete contact between notch and rod, rather than mere two point contact.
28.	The Claimants, on the other hand, contend that the normal meaning of the word “notch” is a rectangular or triangular slot cut into a surface, and that the claim should not exclude this usual meaning, (even though it does of course also cover a notch of the kind in the specific embodiment, shaped as a circular segment matching the round shape of the locking rod 13). In effect they say that a head can be capped as well by a dunce’s cap as by a skull cap.
29.	 The choice between these two possible approaches must be made by asking what the notional skilled man would have understood the patentee to have been using the relevant words to mean. In answering this question it is particularly important to see what the specification says about the purpose of the feature. 
30.	Clearly the primary purpose of the notch is to hold the backrest in its upright position, by its contact with the locking pin. But this can be achieved by any kind of interference between pin and notch, whatever their respective shapes. The specification provides some further elaboration, however, saying: “… the ‘bucket’ shape of the notch 22 promotes the bearing of the tilting component 17 against the rod 13. In other words the greater the pull on the backrest 8 the greater the bearing of the of the tilting component against the rod 13… Such a configuration makes it possible to achieve an immobilisation that is directly proportional to the tilting force of the backrest 8 when the immobilising component 9 is in place.” It is not at first easy to see how the forces involved are in any way influenced by the nature of the contact between rod and notch, because they depend only on what Archimedes said about levers. Trying my best to make sense of this passage, however, it seems to me that it would inform the notional skilled man that the patentee considered it important that the rod should be located in some sort of recess, in such a way that the more force is applied to the backrest, the more firmly the locking pin sits in its recess. This has the effect of positively preventing the pin from riding out along the surface of the tilting component until the tilting component is suddenly freed from its restraint, allowing it (and thus the backrest) unexpectedly to fall towards the reclining position. 
31.	Two consequences flow from this:
a.	First, any shape of recess will do the job. It is not necessary for the notch to match the shape of the rod around a section of its circumference for it to exercise its restraining effect on the rod.
b.	Secondly, however, the notch must have a positive retaining effect on the locking rod; otherwise the application of greater force on the backrest could lead not to greater force retaining the pin in its recess, but to the locking pin slipping from the locking position. In the specific embodiment, for example, it can be seen from the figures that the lower edge of the surface 23 is angled in a direction which tends to urge the rod upwards towards the other edge of the recess. This ensures that however great the force which is exerted on the pin by pulling on the backrest, the pin is positively retained in its recess, and the backrest prevented from falling.
In my judgment, the word “notch” must be construed in such a way that it meets these two requirements.
32.	Turning now to the Defendants’ product, the figure below is an illustration of the Defendants’ equivalent of the tilting component 17:

33.	As illustrated, the Defendants’ tilting component is in its upright position. The crucial part for present purposes is the little lug protruding from the bottom of it. The left hand side of this lug has the function of completely preventing the tilting component from moving in a clockwise direction; it bears against the hinge pin of a locking device (not shown) in much the same way as the Claimants’ protrusion 210 bears against the hinge pin 10. It is the right hand side of the lug which can prevent or permit rotation of the tilting component into its reclining position: the Defendants’ bracket has a locking device with a locking rod (like the Claimants’ rod 13) which can be swung into engagement with the right hand side of the lug. This restrains anti-clockwise movement of the tilting component, but when the locking rod is swung out of the way, the tilting component is free to rotate anti-clockwise into its reclining position.
34.	Thus the Defendants’ device locks the backrest against unwanted rotation to the reclining position by means of the contact between the locking rod and the more or less flat right hand face of the lug. The Claimants contend that it also contacts the bottom of the tilting component, so that the round locking rod touches the tilting component at two points, though not at any points between them, like a boy’s head in a dunce’s cap. The Claimants contend that the Defendants’ locking pin is thus held in a “notch” of the kind claimed in Claim 1. 
35.	Looking carefully after the trial at the sample bracket handed up in the course of the trial, however, I noticed that the Defendants’ locking pin can not actually be lifted far enough to touch the bottom of the tilting component. The reason for this appears to be that the width of the lug increases the closer it is to the bottom of the tilting component, to the point where the lug completely fills the gap between the locking pin and the pivot pin of the locking mechanism, and the locking mechanism can rise no further along the lug. It is in my judgment clear that in the case of brackets where this is so, there cannot be said in any sense to be a “notch”: the locking pin bears only against the flat edge of the lug, and against nothing else. This is a point which was not addressed at the trial, and I had no opportunity of looking to see whether the same is true of the brackets on the two seats I was shown. The parties probably did not have this point in mind when it was agreed that so far as the metal work was concerned the specimen bracket was substantially identical to those on the seats, and if either party wished to address me further (preferably in writing) on either the fact or the conclusion I have arrived at as a result, I am willing to hear further submissions on it.
36.	In any case where the locking pin does contact both the side of the lug and the bottom of the locking pin, and given my view that the shape of the “notch” required by Claim 1 need not precisely match the shape of the corresponding part of the locking rod, the Defendants’ device would meet the first requirement set out in paragraph 30 above. 
37.	As to the second requirement, however, it can be seen from the diagram above that the bearing face of the lug is angled in such a way that it tends to urge the locking pin outwardly, away from the axis of the tilting component. Thus an increase in the force applied to the backrest will not have the effect of more positively locating the pin in what the Claimants regard as the notch. In practice, it may be that even large forces applied to the backrest would fail to dislodge the locking pin, due to the effect of the spring which pushes the locking pin in the opposite direction, coupled with the angle of friction between the steel pin and the edge of the lug. In my view, however, this is not enough to satisfy the requirement in Claim 1 for a positive engagement between lug and notch which itself prevents the locking pin from slipping off the lug.
38.	In my judgment, therefore, even if the locking pin did contact both the side of the lug and the bottom of the locking pin, the Defendants’ device would lack a notch of the kind required by Claim 1, and for that reason it would not infringe. 
The direction of rotation point
39.	The specification of the Patent rather obscurely says of the specific embodiment: “Notably, this device is independent of the kinematics of the squab of the seat for achieving a reclining action.” The parties were agreed that this means that the specific embodiment is installed in a seat so that the backrest drops to the horizontal in a backwardly direction, which means that there is no need to move the seat squab out of the way. (It also means that in an accident the backrest is positively prevented from falling forward by the interference between the protrusion 210 and the hinge pin of the locking mechanism rather than by relying on the engagement between locking pin and notch.) 
40.	The Defendants install their devices in their seats so that the backrest falls forwardly: the seat squab has to be slid out of the way first. (Any tendency of the locking pin to slide off the retaining lug in an accident is prevented by a locking mechanism related to the seat squab sliding mechanism: when the seat squab is pushed back into the seating position, part of its steel framework moves into a position where it holds the handle of the locking mechanism in the locked position, and thus prevents the locking pin from being pushed out of the way of the lug.) The Defendants contend that this difference is a further basis for a finding of non-infringement.
41.	To this the Claimants have two answers:
a.	First they say, rightly in my judgment, that whatever may be said in the specification about the kinematics of the seat squab, there is no counterpart for that in Claim 1, which is throughout indifferent as to the direction in which the backrest drops to the reclining position. The Defendants sought to read into the claim a requirement that the device itself could only be used in the manner illustrated in the Patent, by relying on the various references in the claim to the backrest itself, but none seemed to me conclusive on this issue. Even the words “that edge of the end (21) on which the notch (22) is arranged being selected in such a way that pulling on the backrest in the sitting position increases the bearing of the end (21) against the said rod (13)” do not presuppose that that the backrest is pulled backwards rather than forwards: the claim merely provides (hardly surprisingly) that the locking/unlocking mechanism is to be provided on the side appropriate to the direction in which the backrest will fall. 
b.	Secondly the Claimants point out, again in my judgment rightly, that Claim 1 covers the device per se, irrespective of the manner in which it is actually built into a seat. Thus even if the Defendants intend their device to be used for swinging forwards, it is suitable for fitting to a seat which swings in the opposite direction.
42.	I therefore reject the Defendants’ second non-infringement point. 
The geometry point
43.	The Defendants’ final non-infringement point stems from the final integer of Claim 1, namely that “the geometry of the end (21) allows it, when the backrest (8) passes (F4) from its second position to its first position, to unlock the immobilising component (9)”.
44.	The word “unlock” is not the happiest of words to use in this context, because the device is already unlocked when the backrest is being raised. But in the context of the specification its intended meaning is clear. In the specific embodiment, it can be seen that as the backrest is lifted, the curve at the bottom of the tilting component acts like a cam on the locking pin, pushing it out of the way until the moment comes when it clicks over the end of the curve, whereupon it locks into the notch discussed at such length above. By that time the backrest is in its upright position, and it is the geometry of the “end (21)” which stops it getting getting caught by the locking mechanism on the way. Likewise in Claim 1 the word “unlock” must be taken to mean that the locking mechanism is prevented from locking the backrest while it is being returned to the upright position.
45.	The question therefore is whether the Defendants’ devices likewise allow their seatbacks to be lifted without interruption from the locking mechanism. This gave rise to a dispute about a  fundamental fact. 
46.	Before this action started, the Claimants had purchased a vehicle seat which embodied the Defendants’ device. The Claimants’ Patent Agent has recently made a witness statement (which I entirely accept) in which he says that he examined this seat shortly after it was purchased, and satisfied himself that the backrest could be readily raised from the reclining to the sitting position without using the handle (i.e. without the locking mechanism preventing it from doing so). 
47.	The Particulars of Claim did not say that this particular seat was the item which would be relied on at the trial to establish infringement; it was said in general terms only that the Claimants relied on the Defendants’ seats as promoted on their website. (There was also a reference to photographs, which presumably were photographs of the seat in question, but they revealed nothing of the workings of the seat which is relevant to the present point.)
48.	At a CMC on 22 March 2013, His Honour Judge Birss (as he then was) ordered the parties to identify by agreement “genuine and representative samples of the Defendant’s tilting mechanisms”. 
49.	The Claimants, secure in their knowledge of what they had observed when they raised the backrest of the specimen in their possession, were happy to propose that as the relevant sample. 
50.	The Defendants seem to have been secure in the opposite belief, that the backrests of their seats could never rise without interruption from the locking mechanism, and were at first also content that this particular specimen should be used. Even after inspecting it, the Defendants’ advisers, remained of the view that it was necessary to operate the handle before the seat could be fully raised to the sitting position. 
51.	When it became clear to the Defendants that the Claimants were able to lift the backrest all the way without using the handle, the Defendants became concerned that their mechanism had in some way been tampered with. Clearly that issue is not one which could have been investigated at a trial set down for a half day hearing. At a CMC about a week before the trial, I therefore ordered that the issue of whether this seat was in the same state as when it left the factory should be stood over to the enquiry as to damages (should there be one), and that the current trial should decide only whether the seat in the state it is now in carries infringing brackets. At the same time I was to consider the infringement issues in relation to another of the Defendants’ seats made available for inspection, whose backrest could not be raised all the way without using the handle.
52.	The Defendants’ seat in the possession of the Claimants was made available for inspection at the trial, and it was apparent that if the seat is raised smartly from its reclining position it will indeed reach the sitting position without much difficulty. If, on the other hand, it is raised more slowly, the left hand edge of the lug at the bottom of the tilting component comes into firm contact with the right hand side of the locking pin, and at first it seems impossible to lift it further. Actually, however, by pulling quite a lot harder on the seat back, it is possible to lift the backrest further: the bevel on the front edge of the lug is angled in such a way as to urge the locking pin downwardly until the lug can pass over it. 
53.	Performing the same tests in Court on the other specimen seat, it proved impossible to open the backrest beyond the point where the left hand side of the lug fouled the right hand side of the locking pin, unless the handle was operated to swing the pin out of the way. 
54.	There was no evident difference between the steelwork of the brackets of these two seats, but the brackets on the one in the possession of the Claimants had had the brackets greased. In my judgment it must have been the presence of this grease which made all the difference. In the absence of grease, the locking pin jams against the lug and is held there by friction, but in its presence the lug was able to push the pin out of the way, albeit only if the backrest was lifted fast, or if significant extra force was applied.
55.	The Claimants contended, and I agree, that with the grease present on the mechanism, it is the “geometry” of the bottom of the tilting component which pushes the locking pin out of the way. It is true that a good deal of force is needed to achieve this, even with the grease present, but it is not so excessive an amount of force as to justify me in ignoring the point, and when such force is applied, it is undoubtedly the direction of the relevant slope of the lug (i.e. part of “the geometry of the end (21)” which causes this to occur. 
56.	If, on the other hand, the device is not greased, the geometry of the device (aided by friction) actually prevents the seatback from rising to the vertical unless the handle is used. 
57.	The Claimants nevertheless contend that the brackets infringe in both cases. They repeat the contention made in relation to the Defendants’  previous non-infringement point: Claim 1 relates to the device per se, and if it is capable of functioning in the manner claimed, it is irrelevant that it may actually be used in a different manner.
58.	I do not agree with this analysis in relation to this non-infringement point. In my view the device with grease on it is a different device from the device without grease. The one does have the characteristic required by the last integer of claim 1; the other does not. 
Summary
59.	It follows from all the above that the Defendants’ first non-infringement point succeeds in relation to all the Defendants’ devices, whether greased or not. The second fails. The third succeeds in relation to the Defendants’ devices if ungreased, but fails in relation to the devices when greased.