Strand, London, WC2A 2LL
B e f o r e :
| Schütz (U.K.) Limited
|- and -
|(1) Werit UK Limited
(2) Protechna SA
Simon Thorley QC and Thomas Mitcheson (instructed by Lovells) for the First Defendant
Hearing dates: 3-5 and 8-9 and 11-12 March 2010
Crown Copyright ©
Mr Justice Floyd :
|IBCs and their regulation||7-11|
|The market in IBCs and the activities of Delta||12-14|
|The patents in suit|
|The skilled addressee||34-38|
|Common general knowledge||39-53|
|Types of IBC||40|
|The 4-point weld||49-50|
|Issues of construction||54-78|
|"build-up of metal corresponding to four times.."||57-63|
|"common tangential planes"||64-70|
|"quadruple lattice bar wall thickness"||73|
|"central raised part…"||74|
|307 infringement – claim features||80-94|
|"four times.." and "double walled"||80-82|
|"common tangential planes"||83-94|
|967 infringement – claim features||95-102|
|"quadruple lattice bar wall thickness"||95|
|"central raised portion…"||96-97|
|Validity of 307||103-142|
|Lack of inventive step of 307||104-105|
|Disclosure of Schneider||106-111|
|Disclosure of the ARO Brochure||112-115|
|Werit's obviousness attacks||116-138|
|From the Ve-We||132-138|
|Insufficiency of 307||139- 142|
|Validity of 967||143-169|
|Insufficiency of 967 and infringement of Integer F||144-161|
|Werit's FEA experiment||150-156|
|Schütz's DIC experiment||157-161|
|Conclusion on insufficiency of 967||162|
|Lack of inventive step of 967||163-164|
|Added Matter 967||165-169|
|Has Delta "made" the alleged infringements of 307 and 967?||170-208|
|Conclusion on "making"||206-208|
|Is the bottle essential means of either patent?||209|
|Has Schütz exhausted its rights, or impliedly licensed Delta?||210|
|Does Werit have a defence under section 44 of the Act?||211-224|
"The ship wherein Theseus and the youth of Athens returned [from Crete] … was preserved by the Athenians down even to the time of Demetrius Phalereus, for they took away the old planks as they decayed, putting in new and stronger timber in their place, insomuch that this ship became a standing example among the philosophers, for the logical question of things that grow; one side holding that the ship remained the same, and the other contending that it was not the same."
IBCs and their regulation
The market in IBCs and the activities of Delta
i) are the Patents valid?
ii) do Schütz's IBCs cross-bottled with Werit bottles fall within the scope of the Patents?
iii) is cross-bottling "making" the patented product of either patent?
iv) is supplying the Werit bottle for cross-bottling the supply of a means essential within section 60(2) of the Act?
v) Does Schütz exhaust its rights under the Patents or grant an implied licence when it first sells the IBCs which are re-conditioned;
vi) Does the Protechna Agreement mean that Schütz cannot enforce its rights in the Patents for the relevant period?
The patents in suit
i) Lighter and more stable than IBCs with solid rod cages;
ii) The particular form of the crossover connections between the tubes gives an optimum connection by resistance pressure welding in the context of mass production;
iii) The cage so constructed has high resistance to external and internal forces.
[A] A pallet container, with a flat pallet, an interchangeable inner container of plastics material with an upper filling opening and a lower emptying device, as well as an outer cage surrounding the inner container and formed of a grid structure with vertical and horizontal metal grid rods,
[B] characterised in that the outer cage is formed by grid rods formed as tubes, which lie closely against the outer wall of the inner container of plastics material,
[C] in that the vertical and horizontal grid rods are drawn in at the crossover points to form trough-like, double-walled indentations extending in the longitudinal direction,
[D] in such a manner that the two curved longitudinal edges of the wall of the indentations of each grid rod extend between a tangential plane and a parallel intersecting plane of the grid rod
[E] and, at each crossover point between the longitudinal edges of the indentations of two grid rods lying one over the other at right angles, there result four contact locations disposed in a plane, each with a build-up of metal corresponding to four times the grid rod wall thickness,
[F] and in that the grid rods are so connected together by resistance pressure welding of the four contact locations at each crossover point that the rods have common tangential planes inside and outside.
[A] Pallet container for the transporting and storing of liquids, having a flat pallet, an exchangeable inner container made of plastic material with an upper, closeable filler opening and a lower emptying device and also, surrounding the inner container, one outer sleeve which consists of vertical and horizontal lattice bars made of metal which support the plastic inner container filled with liquid,
[B] the lattice bars which are configured as tubes being indented at the intersection points to form trough-like, double-walled recesses extending in the longitudinal direction of the lattice bars
[C] in such a manner that at each intersection point between the longitudinal edges of the recesses of two lattice bars lying perpendicularly one above the other there arise four contact points with a material accumulation respectively corresponding to the quadruple lattice bar wall thickness, and the four contact points of the two lattice bars being welded together at the intersection points
[D] characterised in that the trough-like recesses of the vertical and horizontal lattice bars have a central raised part extending across the cross-section of the recesses,
[E] two lattice bars respectively lying one above the other at the intersection points are welded together at the four contact points of these raised parts and the incisions of the recesses of the lattice bars adjacent on both sides to the raised part
[F] with the contact and weld points form restrictedly elastic bending points with a reduced bending resistance moment relative to the raised part for relieving the weld joints at the intersection points upon application of static and/or dynamic pressure on the lattice sleeve.
i) Mr Bert Langford as their expert in packaging technology. Bert Langford joined Tanks and Drums Limited ("T&D"), a company concerned at the time mainly with the manufacture of cylindrical drums, in 1968. T&D moved into the market for IBCs in the 1980s. Mr Langford rose to the position of Managing Director (1987) and Chairman (1994) of T&D. During that time he acquired his experience of IBC design and welding techniques. He retired in 1998. Mr Langford appeared to me to be an intensely practical man, far more at ease with a physical design project than with wrestling with the words of expert reports or patent specifications.
ii) Mr Patrick Van Rymenant as their welding expert. Mr Rymenant is an academic lecturer in the field of welding, with extensive practical experience by way of consultancy. He was particularly knowledgeable in the field of resistance welding.
iii) Professor Dirk Vandepitte as their expert in FEA. Professor Vandepitte is a full time professor at the University of Leuven in the field of structural analysis and a leading expert in FEA.
i) Dietmar Przytulla as their packaging expert. Mr Przytulla spent his entire career (1959 onwards) working for the industrial packaging company, Mauser until he retired in 2009. He is now a consultant in industrial packaging. He is the inventor of a number of patents in the field of IBCs.
ii) John Begg as their welding expert. Mr Begg worked for many years (1966 onwards) for AI Welders Limited who specialise in the manufacture of metal joining machinery. His approach was more practical and less academic than that of Mr Van Rymenant. On the other hand his practical experience was clearly extensive.
iii) Dr Daniel Balint as their expert in FEA and strain analysis. Dr Balint is a lecturer at Imperial College in the Department of Mechanical Engineering. His research focuses primarily on metals forming and materials modelling problems. He was more familiar with the actual use of FEA than he was with DIC.
The skilled addressee
Common general knowledge
Types of IBC
The 4-point weld
Issues of construction
"build-up of metal corresponding to four times the grid rod wall thickness"
"At the crossover points 15, the vertical and horizontal grid rods 4, 5 are drawn in to form trough-like, double-walled indentations 16 extending in the longitudinal direction of the rods, such that the two curved longitudinal edges 18, 19 of the wall 17 of the indentations 16 in the tubular rods 4, 5 run between a tangential plane 20-20 and a parallel intersecting plane 21-21 of the grid rods (Figure 9). This formation of the grid rods 4, 5 has the result that, at each crossover point 15, four contact locations 22 result, each with a build-up of material corresponding to a fourfold wall thickness 23 of the grid rods 4,5 (Figures 10 to 12), between the longitudinal edges 18, 19, of the indentations 16 of two grid rods lying over each other at right angles, the said contact locations 22 lying in one plane, namely the intersecting plane 21-21."
"The build-up of material to four times the grid rod wall thickness 23 at each of the four contact locations 22 at all crossover points 15 of the vertical and horizontal grid rods 4, 5 of the outer cage 3 has the result that, with suitable control of the welding current and the pressure of the welding press, a current flows through the contact locations 22, which creates uniform weld pools restricted to the contact locations, these pools ensuring homogenous welded joints at the crossover points 15 between the grid rods 4, 5."
"common tangential planes"
"quadruple lattice bar wall thickness"
"a central raised part extending across the cross-section of the recesses"
307 infringement – claim features
"four times the grid rod wall thickness" and "trough-like double-walled indentations"
"common tangential planes"
"Q. You make the point, and what I am trying to get at, you say at the top of that page, the end of paragraph 52: "Moreover, provided the tubes are indented sufficiently, the design also avoids the problem of climbing". What I am trying to get at is, was that something that you remember recalling when you first looked at this product or is it something that you are saying now you are involved in this litigation and considering the question of climbing?"
A. When I first saw the product it had a different geometry on it as far as the indentation was concerned and it struck me at that time. What I have done since is I have checked in my own way, and bear in mind my resources are limited these days to do so, that the sort of impressions I had at the time in fact stood up to reasoning.
Q. So what was the different geometry that you recall seeing?
A. Well, the different geometry was the tube, first of all, was not singularly indented.
Q. I see, you are talking about the weld shape.
A. The geometry of the tubes, yes.
Q. But we are talking here about offsets. Offsets ----
A. I could not possibly say at that stage that they were absolutely flush or they were not flush or whatever. All I could see was a very good exterior construction that would do a lot of things, climbing being one of them, or the avoidance of climbing."
"Q. Sorry, you tell me what you were trying to say so I can understand what you are saying.
A. First of all, yes, I believe that -- I mean, we are comparing two different things here, but, first of all, I would say that the smaller diameter wire which in terms of its geometry protruded further, quite a long way out, and more than half, as opposed to a tube of a greater diameter where there is the ability of one to slide over the other, but that is not what I was comparing. What I was trying to compare was a tube which was indented and another tube that was indented and their faces were, as near as I can recall, pretty flush to the whole outer cage.
Q. Right. OK, now I understand what you are saying.
A. But I would add to that, that even if it had stood out by some distance, my view would still be the same, that it would be easier to slide over it and it would also act as a barrier between the two pallets, more so than a 7 mm diameter wire.
Q. It all depends on the size, does it not?
A. The size of?
Q. The offset.
A. Yes. Yes, of course."
"Anything that has a ledge on it is likely to snag".
967 infringement – claim features
"quadruple lattice bar wall thickness"
"central raised part extending across the cross-section"
Validity of 307
Lack of inventive step of 307
"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."
Disclosure of Schneider
Disclosure of the ARO Brochure
Resistance Welding of Mild Steel Tubes
Mild steel tubes and particularly thin wall tubing, as used by locksmiths and ancillary trades are easily resistance welded either tube on tube, or tube on sheet, wire, bar stock, angle, etc., either by straight or spot welding, projection welding or by using various types of junction pieces.
These trades use mild steel tubes:
Metal furniture: tables, chairs, bar stools, shelving, display stands;
Hospital equipment: beds, tables, trolleys;
Camping material: tent poles, folding tables and chairs, beds;
School furniture: tables, benches, drawing boards, cupboards;
Motor and bicycle industry: seats, arm rests, roof racks, accessories;
Toys: skates, tricyc1es, scooters.
Other uses: ladders. ironing boards, prams, light fittings, pedestals for machinery, point of sale advertising stands, building components, wheelbarrows.
"Very good results can be obtained, but before welding, each tube has to be shaped at the weld area. Through "dishing" (pressing inwards) each tube at the weld area, 4 contact points are obtained, which produce four spots during welding and consequently a strong assembly."
Werit's obviousness attacks
i) There is no grid structure of vertical and horizontal tubular grid rods as called for in Features A and B;
ii) There are no double-walled, indented crossover welds of the kind called for in Features C, D, E and F.
"There is one other matter it is convenient to mention at this stage. Scinopharm's case depends, in part, upon reading various items of prior art together. It contends it is permissible to do this if they are in the same technical field. I do not agree. In my judgment it is only permissible to read two documents together if it is obvious to do so, as the Court of Appeal made clear in Smithkline Beecham v Apotex Europe  FSR 23 at :
"96. I think the Judge erred in principle here. The skilled man has his common general knowledge — the mental tools of his trade — but no more. The law of obviousness supposes that he can be given any individual piece of prior art and read it with that knowledge. The piece of prior art forms part of the "state of the art". What he cannot do is to just link one piece of prior art with another, unless so to do would itself be uninventive. No-one disputes what Lord Reid said in Technograph v Mills & Rockley  RPC 346 at page 355:
"In dealing with obviousness, unlike novelty, it is permissible to make a 'mosaic' out of the relevant documents, but it must be a mosaic which can be put together by an unimaginative man with no inventive capacity.""
The question whether it is obvious to read two documents together is one to be considered in the light of the particular circumstances of each case. Relevant factors may include whether one document refers to the other or whether one or both documents would be found on a literature search of the kind the skilled person would routinely carry out before attempting to find a solution to the problem the patent addresses.
"The skilled person would know that the diameter of the vertical tubes used is important for obtaining sufficient rigidity. Decreasing that diameter may allow him to increase the volume available for the inner bottle, or have a less complicated inner bottle. However, they would also have known that thinner tubes alone are more likely to bend out so the packaging engineer would compensate this by putting in either a wire mesh or horizontals (tubes or rods) to remedy this. Of these options, adding wire mesh to support the vertical tubes would reduce bulging but it would also add weight and cost and would involve a difficult welding process, whereas using tubing for both may provide a lower weight alternative."
From the Ve-We
Insufficiency of 307
Validity of 967
Insufficiency of 967 and infringement of Integer F
i) Integer F: Werit contend that the specification does not teach how to achieve the claimed effect, because some or all embodiments otherwise falling within the claim do not achieve it. Alternatively the meaning of Integer F is unclear.
ii) To the extent that the grid cage of a Schütz IBC when fitted with a Werit bottle infringes claim 1, the specification is insufficient as it does not teach how to relieve "the weld joints at the intersection points upon application of static and/or dynamic pressure on the lattice sleeve".
i) Schütz's simple mechanical analysis. Schütz rely on the evidence of Mr Van Rymenant to establish that the theory of weld relief advanced in the patent is, on the face of it, likely to work. He draws an analogy with a ruler bent over a pair of pencils and pressed down at the end. If one introduces a more flexible part into the end portions of the ruler, then the amount of bending between the pencils (representing the weld) will be less. Dr Balint did not believe that such a mechanical analogy was appropriate.
ii) Werit's experiments based on finite element analysis. These purported to show that, if anything, the double dimple geometry made stress at the weld worse rather than better. The experiments were the subject of a head-on attack by Schütz. They were defended by Dr Balint, although it was not Dr Balint who set them up or carried them out.
iii) Schütz's DIC experiments which purported to show in a qualitative way that stress relief was occurring. They are attacked by Werit on a number of grounds.
Werit's FEA experiment
"This approach to the preparation of experimental evidence consisting, as it does, of presenting to the expert a fait accompli in the form of a completed experimental protocol is in my view always subject to the risk that it will be unhelpful, both in the general case and certainly in any case where anticipation by inevitable result is alleged. Indeed, it is difficult to conceive of any more effective way of leading an expert witness than to place in front of him a protocol for the performance of an experiment and ask a question of the form: 'That is all right, is it not?'"
Schütz's DIC experiment
Conclusion on insufficiency of 967
Lack of inventive step of 967
Added Matter 967
"If the specification discloses distinct sub-classes of the overall inventive concept, then it should be possible to amend down to one or other of those sub-classes, whether or not they are presented as inventively distinct in the specification before amendment. The difficulty comes when it is sought to take features which are only disclosed in a particular context and which are not disclosed as having any inventive significance and introduce them into the claim deprived of that context. This is a process sometimes called 'intermediate generalisation."
Has Delta "made" the alleged infringements of 307 and 967?
"(a) where the invention is a product, he makes, disposes of, offers to dispose of, uses or imports the product or keeps it whether for disposal or otherwise. "
"It is therefore better to consider whether the acts of a defendant amount to manufacture of the product rather than whether they can be called repair, particularly as what could be said to be repair can depend on the perception of the person asking the question. Even so, when deciding whether there has been manufacture of the product of the invention, it will be necessary to take into account the nature of the invention as claimed and what was done by the defendant."
"where however it is alleged that the defendant has infringed by making the patented product, the concept of an implied licence or exhaustion of rights can have no part to play. The sale of a patented product cannot confer an implied licence to make another or exhaust the right of the patentee to prevent others from being made. A repair of the patented product is by definition an act which does not amount to making it: as Lord Halsbury L.C. said of the old law in Sirdar Rubber Co. Ltd v Wallington, Weston & Co (1907) 24 RPC 539 at page 543:
"you may prolong the life of a licensed article but you must not make a new one under the cover of repair."
Repair is one of the concepts (like modifying or adapting) which shares a boundary with "making" but does not trespass upon its territory. I therefore agree with the Court of Appeal that in an action for infringement by making, the notion of an implied licence to repair is superfluous and possibly even confusing. It distracts attention from the question raised by section 60 (1) (a), which is whether the defendant has made the patented product. As a matter of ordinary language, the notions of making and repair may well overlap. But for the purposes of the statute, they are mutually exclusive. The owner's right to repair is not an independent right conferred upon him by licence, express or implied. It is [a] residual right, forming part of the right to do whatever does not amount to making the product.
"whether, having regard to the nature of the patented article, the defendant could be said to have made it."
"It is quite true that the defendants prolonged the useful life of the frame. It would otherwise presumably have been scrapped. But the screen was the combination of frame and meshes pre-tensioned by attachment with adhesive according to the invention. That product ceased to exist when the meshes were removed and the frame stripped down to the bare metal. What remained at that stage was merely an important component, a skeleton or chassis, from which a new screen could be made."
"the grant of a patent for a product rewards the inventiveness of a patentee by giving him, for the term of the patent, a monopoly right to exploit the patented product which he has invented. The product entitled to protection is that specified in the claim of the patent as interpreted by the description and any drawings contained in the specification: Patents Act 1977, section 125. The protection is against infringement which, in the case of a product, means making, disposing or offering to dispose of, using or importing the protected product, or keeping it for disposal or otherwise, without the consent of the patentees: section 60 of the Act. In any action brought by a patentee alleging infringement the crucial underlying question must always be whether what the defendant is shown to have done has deprived the patentee of the full rights to which his patent entitled him."
"When you take that component out, the one in question, can you realistically say that what you have left behind is a meaningful product and is it the meaningful product that the patent is describing?"
"(i) It is true that the use of a patented product as intended also includes the maintenance and re-establishment of usability if the function or performance of the specific product is impaired or lost in whole or in part by wear or damage or on other grounds. However, there can no longer be a question of a re-establishment of the lost or impaired usability of a product put into circulation with the patent holder's consent if the measures taken in fact amount to making the patented product again.
(ii) Accordingly, the distinction between a (permissible) repair and a (prohibited) remaking depends on whether the measures taken maintain the identity of the specific patented product already put into circulation, or are the equivalent of the creation of a new product according to the invention. As a rule, this can only be determined in the light of the particular nature of the subject matter of the invention and a balancing of the conflicting interests.
"Accordingly, the decisive factor for the distinction between use as intended and the making of the (new) protected object is always the total combination.
On the other hand, this does not mean that quantitative criteria alone would be relevant to the question of when the replacement of parts in a device constitutes newly manufacturing the device. Instead, it is necessary, while taking into consideration the uniqueness of the patented product, to weigh the protectable interests of the patent holder in the economic exploitation of the invention on the one hand and those of the buyer in the unfettered use of the specific inventive product brought onto the market on the other (citations omitted). When the interests are weighed, increasing importance can be given to whether it would be customary to expect the relevant parts to be replaced during the service life of the device (citation omitted). But what is also relevant is the extent to which the technical effects of the invention are reflected by the replaced parts. Therefore, the replacement of a part subject to wear and tear that is usually replaced during the expected service life of the machine—sometimes repeatedly—does not usually constitute a new manufacture. The situation can be different, however, if this part in fact embodies essential elements of the inventive concept (citation omitted). When the replacement of this part again implements the technical or economic advantage of the invention, it cannot be said that the patent holder already reaped the benefits to which it is entitled from the invention when it brought the entire device into the stream of commerce for the first time (see also the question as to "whether, having regard to the nature of the patented article, the defendant could be said to have made it," which was posed by Lord Hoffmann in the case of "United Wire v. Screen Repair" [House of Lords, ENPR 2000, 324])."
"The advantages of solution according to the invention are implemented on and in the corresponding measuring capsule"
"When the interests are weighed, increasing importance can be given to whether it would be customary to expect the relevant parts to be replaced during the service life of the device. But what is also relevant is the extent to which the technical effects of the invention are reflected in the replaced parts"
"Once the protected pipette system has been brought onto the market, the Plaintiff's exclusivity right with respect to the unit brought onto the market consisting of hand pipette and syringe is exhausted even when the syringe is continually replaced – in accordance with the directions. Such replacement is in accordance with the designated use of the pipette system."
"The distinction between (permissible) designated use and (impermissible) new manufacture is determined by whether the actions taken preserve the identity of the specific patented product already brought onto the market or whether they are equivalent to creating a new product in accordance with the invention"
"It is not sufficient … for the assumption of a new manufacture that the "system" becomes incomplete due to the withdrawal of the syringe and therefore non-functional, nor by contrast is such an assumption refuted … by the fact that no new item is manufactured based on generally accepted standards if a new (disposable) syringe is inserted into a hand pipette device intended for long-term use".
i) The question of whether a replacement of a part is "making" is not a purely quantitative one: it always depends on looking at the combination a whole: (Impeller);
ii) At least in the context of on-site replacements, whether a replacement of a part is impermissible making or permissible repair depends on balancing the interests of the patentee against those of the user: (Impeller, Wheel Tread, Pipette System);
iii) Importance will be attached to whether the replaced part can be expected to be replaced during the working life of the product: (Impeller, Wheel Tread, Pipette System);
iv) But if the replaced part re-implements the invention (because it embodies the essential elements of the patented invention), even replacement of parts which would be expected to be exchanged can be "making": (Impeller, Wheel Tread);
v) A relevant consideration is whether the advantages of the patented solution are implemented on and in the replaced part (Impeller); or whether the technical effects of the invention are reflected in the replaced parts (Wheel Tread);
vi) It is also material to ask whether the identity of the product placed on the market is preserved: (Pipette System);
vii) The replaced part can be a feature of the claim and/or an essential means, but its replacement still not a making of a new product: (Pipette System);
viii) Mere functional interaction is not enough to make replacing the part the making of a new product: (Wheel Tread);
ix) Nor is it enough that without the replaced part the claimed system ceases to exist: (Pipette System)
"Now claims can be framed in different ways which to some extent are fortuitous. In particular a patentee may frame a claim, particularly a subsidiary claim, more narrowly than is necessary. He may do this by including extra elements not really forming part of the invention."
"As a low cost alternative to new IBCs. Delta can supply re-manufactured containers. These IBCs are manufactured with once used cages fitted with new bottles."
i) On the example in question the loops on the top of the bottle (which have a role in supporting it) have been removed. More importantly, even if they were present they would not fit the tie bars.
ii) The Werit bottle does not fit against the cage in the same way as a Schütz bottle would, because it has grooves which do not match the vertical bars on the Schütz cage. This will affect the way in which the IBC responds to vibration;
iii) The Werit bottle does not fit as well in the base or tray of the Schütz cage, resulting in less good draining.
Conclusion on "making"
Is the bottle essential means of either patent?
Has Schütz exhausted its rights, or impliedly licensed Delta?
Does Werit have a defence under section 44 of the Act?
"(1) subject to the provisions of this section, any condition or term of a contract for the supply of a patented product or of a licence to work a patented invention, or of a contract relating to any such supply or licence, shall be void insofar it purports -
(a) in the case of a contract for supply, to require the person supplied to acquire from the supplier, or his nominee, or prohibit him from acquiring from any specified person, or from acquiring except from the supplier or his nominee, anything other than the patented product;
(b) in the case of a licence to work a patented invention, to require the licensee to acquire from the licensor or his nominee, or prohibit him from acquiring from any specified person, or from acquiring except from the licence or his nominee, anything other than the product which is a patented invention or (if it is a process) other than any product obtained directly by means of the process or to which the process has been applied;
(c) in either case, to prohibit the person supplied or licensee from using articles (whether patented products or not) which are not supplied by, or any patented process which does not belong to, the supplier or licensor, or his nominee, or to restrict the right of the person supplied or licensee to use any such articles or process…
(3) in proceedings against any person for infringement of a patent it shall be a defence to prove that at the time of the infringement there was in force a contract relating to the patent made by or with the consent of the plaintiff or pursue or a licence under the patent granted by him or with his consent and containing in either case a condition or term void by virtue of this section…
(6) a condition or term of a contract or licence shall not be void by virtue of this section by reason only that it prohibits any person from selling goods other than those supplied by a specific person or, in the case of a contract for the hiring of or licence to use a patented product, that it reserves to the bailor (or, in Scotland, hirer) or licensor, or his nominee, the right to supply such new parts of the patented product as may be required to put or keep it in repair."
"to prevent a patentee abusing his monopoly by placing restrictions on the acquisition and use of products other than patented products."
"Parts" means parts for intermediate bulk containers as produced by a manufacturing licensee or by Licensor which will be purchased by Licensee for assembling and sale of the Licensed Products
"Licensed products" means intermediate bulk containers making use of the Patents and/or Know-How
" 5.2. Licensee agrees to purchase the Parts for assembling only from Licensor or from A-licensees."
i) requires the Licensee to acquire Parts from the Licensor or his nominee (i.e. the A-Licensees defined in Article 1.5.);
ii) prohibits the Licensee from acquiring Parts from anyone else;
iii) prohibits the Licensee from using Parts for assembly into Licensed Products which were not supplied by the Licensee or his nominee.