7 Rolls Buildings
London EC4A 1NL
B e f o r e :
| ENVIRONMENTAL RECYCLING TECHNOLOGIES PLC
|- and -
|UPCYCLE HOLDINGS LIMITED
Martin Howe QC (instructed by Bird & Bird) for the Defendant
Hearing dates: 5th, 6th December 2012
Crown Copyright ©
His Honour Judge Birss QC :
|The Contour prior use||10|
|The person skilled in the art||17|
|Common general knowledge||19|
|The application to amend the patent||50|
|Discretion – claim 2||67|
|Application to the facts||83|
|Heating and cooling channels||92|
i) Whether the amendments are allowable. ERT contends new claim 1 would add matter and the amendment therefore should not be permitted. ERT also takes the omnibus claim point on new claim 2.
ii) Whether new claim 1 is obvious over two items of prior art: Aylmore (published PCT application PCT/GB2006/001541 published as WO 2006/114632 on 2 November 2006) and a prior use known as "Contour". This was a powder impression moulding process for making shower trays at a factory in Bedwas, Caerphilly, South Wales. The shower trays were for Contour Showers Limited.
i) ERT called Mr Colin Williamson. He has been working in the plastics industry since the late 1960s. Since 1987 Mr Williamson has been a consultant specialising in technical aspects of plastics and other industries. He has a particular interest and knowledge of plastics recycling, plastics raw materials and additives, plastics processing and plastics conservation. He also has a particular interest in the history of plastics and polymer technology and maintains a library on the subject. He is the owner of a plastics recycling company (Smile Plastics Ltd). In 2011 he received a Lifetime Achievement Award for his contribution to the plastics industry because of his work in recycling.
ii) Upcycle called Dr Andrew Peter Cox. He has worked in polymer processing for over 35 years in a variety of roles. His undergraduate degree was in mechanical engineering from Imperial College and his PhD related to creep properties of a nickel alloy. After a period at Rolls Royce in the 1970s working on the failure of gas turbine blades and a short period in the early 1980s working on computer modelling, since then Dr Cox's work has been very practically based. In the mid 1980s he worked on rubber hoses for the offshore oil industry and from 1987 Dr Cox was a Senior Engineer in the Plastics Section of the Metal Box Research and Design Centre in Wantage. His primary focus was on developing a production process for a stretch blow moulded multilayer structure. In 2001 he set up Peter Cox Associates, a consultancy firm dealing with polymer processing.
The Contour prior use
The person skilled in the art
Common general knowledge
(i) A process for moulding a plastic article using a machine comprising
(ii) a pair of moulds each defining a mould cavity, the moulds being connected to each other by at least one hinge about which the moulds are pivotable and movable between an open position in which the mould cavities are open and a closed position in which the moulds co-operate to define a completely closed mould cavity,
(iii) and means to heat and cool the moulds by pumping heated or cooling fluid through channels formed in the moulds;
(iv) the process comprising the steps of
(v) placing the moulds in the open position,
(vi) heating the moulds by conduction to a temperature above the melting point of a given plastic material,
(vii) placing the plastic material in particulate form into the moulds,
(viii) whereupon the plastic forms a skin lining each mould,
(ix) wherein the step of forming a plastic skin in one of the moulds comprises
(x) placing a former in the mould cavity so as to leave a gap between the former and the side walls of the cavity,
(xi) placing plastic material into the gap to form a plastic skin lining the side walls of the cavity,
(xii) removing the former and
(xiii) placing further plastic material on the bottom of the mould cavity to form a plastic skin lining the bottom of the mould and integral with the plastic skin lining the side walls,
(xiv) placing expandable filler material in the plastic skin formed in one mould,
(xv) closing the moulds to create a completely closed mould cavity,
(xvi) whereupon the plastic skins in the moulds bond to each other to form a continuous plastic shell which completely encases the filler material,
(xvii) cooling the moulds and opening the moulds to remove the moulded article,
(xviii) wherein the process further comprises providing a reinforcement structure to resist buckling of the moulds and to act as a support for the moulds.
A process for moulding plastic articles substantially and hereinbefore described and with reference to the accompanying drawings.
The application to amend the patent
Discretion - claim 2
(1) (a) Identify the notional person skilled in the art;
(b) Identify the relevant common general knowledge of that person;
(2) Identify the inventive concept of the claim in question or if that cannot readily be done, construe it;
(3) Identify what, if any, differences exist between the matter cited as forming part of the "state of the art" and the inventive concept of the claim or the claim as construed;
(4) Viewed without any knowledge of the alleged invention as claimed, do those differences constitute steps which would have been obvious to the person skilled in the art or do they require any degree of invention?
"The question of obviousness must be considered on the facts of each case. The court must consider the weight to be attached to any particular factor in the light of all the relevant circumstances. These may include such matters as the motive to find a solution to the problem the patent addresses, the number and extent of the possible avenues of research, the effort involved in pursuing them and the expectation of success."
Application to the facts
Identify differences and ask if the invention is obvious
i) In Aylmore the moulds are not connected by a hinge (cf claim 1 step (ii));
ii) In Aylmore the method of heating and cooling is not stated. To be exact there is no mention of active cooling in Aylmore at all. (cf claim 1 step (iii) which requires heating and cooling by pumping fluid in mould channels);
iii) No former or method of using it is mentioned in Aylmore (cf claim 1 steps (ix) to (xiii));
iv) No reinforcing structure is mentioned in Aylmore (cf claim 1 steps (xviii)).
i) The use of the former requires the skin to be formed in two stages and the use of heating channels in the mould enables temperature to be maintained at a controlled level in a way not possible with conventional heating;
ii) The use of heating and cooling channels in the mould means that the mould does not have to be moved between separate stations, as does the use of the former to make the side walls, and the combination of these features enables a 'one stop shop' operation where there is no need to use cranes conveyors etc to move the mould;
iii) The use of these channels assists in the problems of even heat distribution caused by the use of external reinforcement ribs;
iv) The use of separate heating/cooling channels in the mould allows differential temperature control which helps with the two-stage formation the plastic skin with the aid of the former.
Heating and cooling channels
i) an "open mould" process - figure 1a-1c;
ii) a double skinned structure - fig 2a-2b;
iii) a method of making a double skinned article with male and female moulds - fig 3a-3c;
iv) a method of making an article consisting of varying materials – fig 4
v) the basic process for making a pick up truck bed box - fig 5 (and figs 6 to 11);
vi) a test tool for the truck bed - fig 12 to 18; and
vii) various articles which might be made - figs 19 to 23.