England and Wales Patents County Court

IN THE PATENTS COUNTY COURT

		Rolls Building 7 Rolls Buildings London EC4A 1NL
		25/05/2012

His Honour Judge Birss QC :

Contents:

Section	Para
1 Introduction	1
2 The witnesses	6
3.1 The person skilled in the art	13
3.2 The common general knowledge	19
4.1 The patents	27
4.2 The claims	43
4.3 Construction	49
5 Novelty	84
5.1 US 5,884,808	86
5.1(a) Novelty of claim 1 of 169 over US 808	89
5.1(b) Novelty of claim 1 of 547 over US 808	91
5.2 US 4,272,019	94
5.2(a) Novelty of claim 1 of 169 over US 019	96
6 Inventive Step	100
6.1 Inventive Step of 169	108
6.1(a) Inventive step of claim 2 of 169 over US 808	111
6.1(b) Inventive step of claim 2 of 169 over US 019	120
6.1(c) Inventive step of claim 2 of 169 over JP 059 (below)	122
6.2 Inventive Step of 547	123
6.2(a) Inventive step of claims 1 and 15 of 547 over US 808	124
Inventive step of claim 5 of 547 over US 808	138
Inventive step of claim 6 of 547 over US 808	146
Inventive step of claim 19 of 547 over US 808	147
Inventive step of claim 26 of 547 over US 808	148
Inventive step of claim 33 of 547 over US 808	151
6.2(b) JP 10-328059	156
Inventive step of claim 1 of 547 over JP 059	161
Inventive step of claim 5 of 547 over JP 059	177
Inventive step of claim 2 of 169 over JP 059	179
Inventive step of claim 6 of 547 over JP 059	180
Inventive step of claim 15 of 547 over JP 059	181
Inventive step of claim 19 of 547 over JP 059	183
Inventive step of claim 26 of 547 over JP 059	184
Inventive step of claim 33 of 547 over JP 059	185
6.2(c) Inventive step of claim 1 of 547 over US 019	186
7 Conclusion	189

1. Introduction

1. In this action the claimant Unilever Plc applies to revoke two patents held by the defendant S.C. Johnson & Son Inc. The patents are GB 2 389 547 and GB 2 403 169. They are both entitled "Automated cleansing sprayer". The 169 patent was divided out from the application which led to the 547 patent.
2. The patents relate to the cleaning of bath and shower enclosures which have become mildewed or coated with soap, hard water scale and the like. Normally removing these deposits requires a human being to do the job. The invention is a device for automatically spraying the walls of the enclosure with cleanser. When a user is about to leave the shower, they press a button on the device (which is probably hanging from the shower head) and then leave, closing the shower door or curtain behind them. The device counts down for (say) 20 seconds and then sprays the walls with cleanser, stopping automatically after a period. The device can work with commercially available bottles of cleanser and obviates the need for a person to remember to spray the shower after use.
3. Unilever contends that the patents lack novelty and/or are obvious over three items of prior art, all of which were published before the priority date, which is 13^th April 2001. The prior art relied on is US 5,884,808, US 4,272,019 and JP 10-328059. SC Johnson contends that claim 1 of each patent is valid. Additional claims said to be independently valid are claim 2 of 169 and claims 5, 6, 15, 19, 26 and 33 of 547. No other grounds for invalidity are advanced by Unilever and there is no application to amend either patent by SC Johnson.
4. The action was commenced in the Patents County Court on 27^th July 2011 and has been conducted under the PCC rules. One might ask whether a case between two multinational corporations is suitable for the PCC. Since neither side suggested the matter should be transferred, the question did not arise. I can say this much. In terms of the issues to be decided, the case is clearly suitable for the PCC. There has been no disclosure and the evidence consists only of reports from in-house experts on both sides. The legal representation consisted of junior intellectual property counsel (Andrew Norris and Simon Malynicz) instructed by firms of patent attorneys (Potter Clarkson and Carpmaels & Ransford) for Unilever and SC Johnson respectively. The trial took 1 ½ days. As far as I can tell it has been run expeditiously and without major cost.
5. There had been a debate at the CMC about whether Unilever had articulated its case on obviousness in sufficient detail at the pleading stage. Instead of ordering further rounds of pleadings, I directed that the parties' expert's reports be served sequentially; with Unilever's report coming first so that SC Johnson could understand the case it had to meet. That is how the matter proceeded to trial.

2. The witnesses

6. Unilever called evidence from Mr Guy Thompson. He has an undergraduate degree in industrial design and has spent 25 years working in the design and development of products in the so called fast moving consumer goods or "FMCG" field. He was employed by SC Johnson Wax (i.e. the same group as the defendant) between 1988 and 1998 at their European R&D centre followed by 14 years at Unilever, where he still works today in global R&D. In his career Mr Thompson has worked on the design and development of household care products including bathroom and kitchen care, air freshening and deodorant applicators. The products have included spray dispensing products such as aerosols and those using other delivery technologies. He is the named inventor on a number of granted patents.
7. Mr Malynicz submitted that Mr Thompson had a particular focus on spray technology. His current job title is "Future Sprays Capability Leader" and his work includes looking for "disruptive" spray technology. In this context disruptive technology means new and perhaps surprising technical developments which can cause large changes to a given established field. I agree that Mr Thompson has a particular interest in and knowledge of spray technology. However in my judgment since the patents are concerned with spraying devices in the household care market, Mr Thompson is well qualified to assist the court in that regard.
8. Mr Malynicz also submitted that Mr Thompson was a highly innovative person and therefore not representative of the person of ordinary skill in this art. I agree that Mr Thompson is a highly innovative and experienced product designer however that does not disqualify him from assisting the court. It is trite but worth repeating that the reasons an expert gives for his opinion are what counts much more than the fact he may have the view that a particular step is obvious. I will deal with the characteristics of the notional person skilled in the art below.
9. SC Johnson called evidence from Mr Thomas Jaworski. He is a mechanical engineer and industrial designer with 23 years experience in product design and development. He has Bachelor of Science degrees in both mechanical engineering and industrial design. After 9 years with Delco Electronics Corp. in Kokomo Indiana Mr Jaworksi moved to SC Johnson and has worked there ever since in the R&D function. He has worked on the design and development of household consumer products in several SC Johnson divisions including home cleaning, insect control and air care. His primary focus has been on electrical device based delivery systems including plug-in air fresheners, plug-in foggers, piezo-electric atomizers, electric trigger sprayers and automatic aerosol dispensers.
10. Mr Norris submitted that Mr Jaworksi had a particular focus on the electrical and electronic side of product development whereas this case is concerned with spraying rather then electronics. While it is fair to say that the patents are concerned with sprayers, the inventions claimed also incorporate electrical and electronic components and in my judgment Mr Jaworksi is well placed to assist the court on the issues I have to decide.
11. Mr Norris also submitted that Mr Jaworksi's knowledge of spraying, nozzles and the like, which was undoubtedly less detailed than the knowledge of Mr Thompson, was less than that of the person skilled in the art. It is not the role of experts to be precisely the same as the skilled person, indeed it is plainly impossible for that ever to happen in practice for all sorts of reasons. The skilled person is a legal idealisation not a real human being. In my judgment Mr Jaworksi was well able to assist the court on the sprays and spraying issues.
12. Both Mr Thompson and Mr Jaworksi gave their evidence fairly. Neither counsel criticised the individuals as witnesses and rightly so. They were both good witnesses.

3.1 The person skilled in the art

13. Paragraph 9 of Unilever's Particulars of Claim summed up its position on the person skilled in the art and SC Johnson admitted this in its Defence. The paragraph states:

The 169 and the 547 patents are concerned with cleaners suitable for cleansing the walls of enclosures, particularly for baths and showers. The skilled person would know about the development of cleansers, including automated cleansers, in bathrooms but also in other environments. The skilled person would have at least several years' practical experience in this field and would have technical qualifications such as at degree level or above.

14. I accept that formulation as a convenient starting point. The person skilled in the art in this case will be someone (possibly a small team) working in the field of consumer products for household care. They are the kind of person working in the groups from which Mr Thompson and Mr Jaworksi come but they may not be working in an organisation quite as large and well resourced as Unilever or SC Johnson.
15. They would have experience of bathroom care products and also related products like cleaning products, air fresheners, household pest control products and fragrances. They would have a general knowledge over a broad range of the technologies needed to develop mass produced cleaning appliances incorporating electronic controls. That will include general knowledge of spraying, pumps, vents, seals, electronic controls, batteries and materials selection.
16. In my judgment they will not have the same degree of specialisation in spraying as Mr Thompson nor the same degree of expertise in electronics as Mr Jaworksi but they will have a significant familiarity with both fields from the point of view of household care products. They will be sufficiently familiar with both in order to design a product which sprays fluid under automatic control.
17. In the real world I strongly suspect that the people working in household care in FMCG companies are highly innovative and are paid to invent and innovate. However I remind myself that the legal construct – the person skilled in the art – has no inventive faculty. He never misses the obvious and always misses the inventive step.
18. The disputes about the person skilled in the art were really arguments about common general knowledge and I will deal with it in that context.

3.2 The common general knowledge

19. A major issue between the parties was concerned with knowledge of spraying and in particular about a textbook called Lefebvre. This book was published in 1988 under the title Atomization and Sprays. Its author, Arthur Lefebvre, was clearly one of the world's leading experts in such technology. He died in 2003 and is honoured each year at the International Conference on Liquid Atomisation and Spray Systems (ICLASS) with a lecture named after him. The textbook is and was at the material time (2001) one of the leading textbooks on spraying technology.
20. Mr Thompson's opinion was that Lefebvre was common general knowledge. He said it was an example of the type of reference the skilled person would be familiar with and in the R&D department where he works there are four copies of the book. Mr Jaworksi was not familiar with the book and while he accepted that Lefebvre was a leading textbook on spraying, he did not accept it represented common general knowledge. In his opinion the skilled person's knowledge of spraying was at a higher level of generality than that contended for by Mr Thompson and represented by Lefebvre. In cross-examination Mr Jaworksi was asked if the book was in SC Johnson's library. It was not.
21. Mr Malynicz emphasised that Lefebvre came from a series of books concerned with combustion and was a highly detailed text which mentioned many applications of spraying technology including spray combustion in furnaces, gas turbines, diesel engines and rockets as well as in spray drying, evaporative cooling, powder metallurgy, spray painting, agriculture, medicine and meteorology. That is all true but I accept Mr Norris's submission that in this art, as Mr Jaworksi accepted, the important thing for a skilled person is not the particular application of a given technical expedient which matters, but the technical expedient itself. That was exemplified by the contents page of an SC Johnson aerosol technology manual which Mr Jaworksi exhibited to his report. It showed that the manual included detailed expositions of formulations, possible propellants, valves and the like irrespective of their particular application. Thus the fact that Lefebvre is concerned with numerous applications a long way from household care products does not determine the issue.
22. Mr Malynicz reminded me of some of the leading authorities on common general knowledge (Beloit v Valmet [1997] RPC 489, the passage from the judgment of Luxmore J in British Acoustic Films (1936) 53 RPC 221 cited in General Tire [1972] RPC 457, and what was said by Kitchen J (as he then was) at first instance and Jacob LJ on appeal in Generics v Daiichi [2009] RPC 4 and [2009] RPC 23.) Bearing these in mind, in my judgment the Lefebvre textbook itself was not common general knowledge. The fact it was not in the library of a major FMCG company like SC Johnson really settles the matter. If anything I would expect the libraries of companies like the parties in this case to have vastly more in them than would represent the common general knowledge of household care product designers.
23. Although that is the end of the Lefebvre book point as far as common general knowledge is concerned that does not mean the textbook is irrelevant in this case. I do not believe the contents of Lefebvre would inform or guide a skilled person from the outset nor would the skilled person bring it to bear on reading a particular piece of prior art. On the other hand as a leading textbook on spraying, it seems to me that the text is representative of the kind of technical resource a skilled person would know existed and which would be consulted if they had already decided to look seriously at options in spraying technology.
24. A small point was whether the JP 059 patent itself was part of the common general knowledge. I do not accept that. There was no evidence it was known by anyone. Mr Thompson thought it would come up on a literature search which the skilled person would always carry out but I am not satisfied that is correct and even if it is I am not satisfied that that reaches the standard for common general knowledge.
25. Finally in relation to common general knowledge I need to deal with the knowledge of automatic sprayers and such like. The parties agreed definition of the skilled person includes a statement that this person would know about the development of cleansers including automated cleansers in bathrooms and also other environments. However Mr Jaworksi's evidence was that while hand-held sprayers for spraying the walls of shower enclosure were well known, automatic sprayers for that task were not common general knowledge at the relevant date.
26. While it is clear that hand held sprayers of "no scrub" cleanser for a shower were common general knowledge, I will not assume that that the idea of an automated shower sprayer was in that category. There is really no evidence that it was. However it is clear that in the FMCG field the idea of making portable automatic devices for dispensing household care products in general was well established at the relevant date. Mr Jaworksi's evidence was that the common general knowledge in the household consumer products field would include knowledge of automated products designed to minimise the time and effort of the users including plug in air fresheners, battery operated and plug in pest control devices, toilet rim blocks and toilet tank installed cleaners such as Vanish hang ins. Mr Thompson also gave examples of battery powered household devices including air fresheners and exhibited a picture of an automated fragrance spray device for bathrooms from SC Johnson called "Good Sense". I accept this evidence from both experts. I find that, as part of their common general knowledge, the skilled people in this art are well aware of the idea of making smaller portable automated dispensing products for household care. These products are designed to save their users' time and effort. Part of the function of those skilled in the art in this field involves making such devices.

4.1 The patents

27. The parties approached this case on the basis that the specification and figures of the two patents are identical and the only difference is in the claims. Thus I only need to consider one specification. I will use the 547 specification for convenience.
28. The patent explains the background in paragraph 3 to 9. The invention relates to apparatus for cleaning bath and shower enclosures. The problems of mildew, soap, hard water and mineral deposits on the walls and doors of bath and shower enclosures after extended periods of use are described. There are cleansers available which are sprayed on, wiped or scrubbed off and then rinsed with water to remove the dirt. There are also so called "no scrub" cleansers available which can remove the deposits without the need to scrub the walls. One technique is to keep a pump spray bottle of cleanser near the shower and spray down the walls after showering. However this requires the consumer to spend time and effort in order to spray the walls. A number of prior art patents are mentioned, including at least one automatic device, which have the drawbacks referred to (paragraphs 7 and 8). None of these are the cited prior art in this case. Paragraph 9 describes the need which exists for an improved system for automatically spraying down a bath or shower enclosure.
29. The next section (paragraphs 10 to 35) is entitled "Summary of the invention" and describes the invention as a device for automatically spraying the walls of a bath and shower enclosure with shower cleaner. Various aspects are mentioned and it is not necessary to set them all out here.
30. The device has a container containing cleanser and a metering system for controlling the flow to a spray head for spraying the cleanser in a spray cycle initiated by the user via a control. It automatically turns itself off. The timer has a delay to countdown before coming on so as to let the user leave the shower enclosure, as well as audible and visible alarms.
31. The automatic sprayer can have a variety of metering valves and spray heads. There could be a single motorised head including a dispensing cup which spins, spraying fluid in all directions. Some arrangements are suitable when the cleanser container is not pressurised and some can be used when the container is a pressurised vessel such as an aerosol can.
32. The device has various optional features like an adjustable hanger to hang it from the shower head, a partial shield to prevent spraying in particular portions of the 360° arc which may have sensitive features and a motion sensor to stop the device if a person gets in the shower.
33. The point is made that another aspect of the invention is a method of automatically spraying a shower enclosure by activating a timer, spraying after a first countdown (to let the user leave), continuing to spray for a period and then automatically stopping.
34. The next section in the patent provides a detailed description with drawings of various embodiments. A number of embodiments are described. The first is in Figures 1 to 7 and paragraphs 73 to 86. They describe a device which hangs from the shower and uses a rotating cup to spray cleanser from a container in all directions. It can be exemplified by figure 5:

35. The device hangs from a shower head 40 via a hanger 34. The cleanser is in a bottle 48 and flows down into a spray cup 94. The control circuitry 76 can be actuated by a button 86 and controls a motor 28. When the control system decides to spray cleanser the motor turns on, spinning the cup and causing fluid to spray out sideways in a circular pattern. Gravity allows the fluid to flow out of the bottle until the level in the cup reaches the bottom of the guide tube 56. At that point no more air could flow in to join the air trapped above the fluid in the bottle 108 and so the fluid stops flowing out.
36. Next, the text sets out various alternative metering and spray mechanisms which can be used to practice the invention (paragraph 87). This section runs from paragraph 87 to 101. Figures 8 and 9 (paragraphs 88 - 92) show alternative spray cup arrangements with different ball valves to control the flow. Figures 10 and 11 (paragraph 93) show a spray disk in which the cleanser sprays out through outlet ports as the disk spins to form a circular pinwheel type pattern. Figure 12 (paragraphs 94 - 95) shows a mechanism using a fluidic oscillator. These are devices which provide an oscillating spray. The fluidic oscillator can be rotated about the axis by a motor so as to provide a circular pattern. Figure 13 (paragraph 96) shows another disk shaped spray head mounted on a motor. Figure 14 (paragraph 97) shows a spray head rather like a rotating lawn sprinkler which can act as an impeller rotating under the force of pressurised cleanser (if that is used) or could be motorised.
37. Figures 15 and 16 (paragraphs 98 – 101) relate to an embodiment with an inverted spray can of cleanser. The figures are:

38. When the cleanser is to be dispensed, the solenoid valve 212 is energised and presses the valve on the spray can to release cleanser. The fluid passes down to the spray head 230 and out of the nozzle(s) 232. The nozzles 232 can be spaced around the spray head to provide a circular spray pattern (for example four nozzles spaced apart 90 degrees) or to one side as shown in figure 16 to provide a focused spray.
39. What the specification describes as the most preferred embodiment is shown in figures 17 to 28 (paragraphs 102 - 108). Figures 17 and 23 are:

40. The device hangs from a shower head. The fluid is stored in a bottle 301. The spray head is a spinnable dish 305 which is on a shaft rotated by a motor and pulley system inside the housing. The fluid flows down a full tube 303 into the dish.
41. The remainder of the description (paragraphs 109 – 116) mentions some alternative arrangements such as fibres to aid dispersal (fig 30), catch areas to help stop spilling if the device is removed from the wall after use (fig 31), a way of preventing re-filling of bottles by making them break when removed (figs 32-35), a vent to prevent glugging (fig 36), and a soap dish on what ends up being the top of the bottle in use (fig 37).
42. At the end, as well as making general statements about variations, paragraph 117 makes a specific suggestion that the electronic timer, motor and user notification system could be replaced by corresponding mechanical, wind up, systems known in the art.

4.2 The claims

43. The relevant claims are claims 1 and 2 of 169 and claims 1, 5, 6, 15, 19, 26 and 33 of 547.
44. Claims 1 and 2 of 169 are:

1. An automated sprayer

for spraying the walls of an enclosure with a cleanser,

comprising:

a container containing a cleanser;

a metering system for controlling flow of the cleanser;

a spray head for spraying cleanser during a spray cycle; and

a control for automatically controlling spraying of the cleanser out of the sprayer;

wherein the sprayer is configured so as to be mountable wholly within the enclosure,

and when so mounted can spray the cleanser even when the sprayer does not receive water from a water supply of a building in which the enclosure is located.

2. The sprayer of claim 1, wherein the sprayer is suitable to be hung from a shower head and operates using battery power.

45. Claim 1 of 547 provides:

1. A stand alone automated sprayer for spraying the walls of an enclosure with a cleanser, comprising:

a metering system for controlling flow of the cleanser;

a motorized spray head for spraying cleanser during a spray cycle; and

a control for initiating the spray cycle and automatically terminating it.

46. Claim 5 of 547, along with claims 2 and 3 upon which it depends, provide:

2. A sprayer as claimed in claim 1, further comprising a container containing the cleanser.

3. A sprayer as claimed in claim 2, wherein the sprayer has a tray sized to receive the container in an inverted fashion.

5. A sprayer as claimed in claim 3, further comprising a hanger hook for mounting the sprayer on a shower spout.

47. Claims 6, 15, 19 and 26 of 547 provide:

6. A sprayer as claimed in claim 5, further comprising a suction cup for securing the sprayer to a wall of the enclosure.

15. A sprayer as claimed in claim 2, wherein the metering system and spray head are provided by a rotatable dispensing cup disposed about a longitudinal axis and covered by an annular lid with an axial opening through which a tube extends for passage of the cleanser into the cup, the lid being attached to the cup at points spaced about the rim of the cup.

19. A sprayer as claimed in claim 2, wherein the spray head is defined by an annular disk having a central opening with a seam between the cup and the disk.

26. A sprayer as claimed in claim 2, wherein the spray head is a rotatable fluidic oscillator.

48. Finally claim 33 of 547 provides:

33. A method of operating a stand alone automated sprayer for spraying a shower enclosure with a liquid cleanser, the method comprising:

obtaining a sprayer as claimed in any preceding claim;

activating a timer on the sprayer to initiate a first countdown;

at the expiration of the first countdown, automatically spraying cleanser at side walls of the enclosure; and

automatically terminating the spray cycle at the expiration of a second countdown following the first countdown.

4.3 Construction

The law

49. The legal approach to patent construction is well established and there was no dispute on it before me. The leading authority is Kirin Amgen v TKT [2005] RPC 9. The key point is that construction is concerned with what a reasonable person would understand the author to be using the words to mean. Mr Malynicz emphasised the words of Lord Hoffmann at paragraph 33, that patents are read on the assumption that the purpose of the specification is both to describe and demarcate an invention – a practical idea which the patentee has had for a new product or process – and not a textbook in mathematics or chemistry. Guidelines on the general approach were given by the Court of Appeal in Virgin Atlantic v Premium Aircraft [2010] FSR 10. I remind myself that claims are not construed alone or in the abstract but in their context in the specification; that purposive construction is vital (there may be several purposes and several embodiments) and that one is in the end concerned with the meaning of the language used. Meticulous verbal analysis is eschewed.
50. The expert's reports from both sides included statements by Mr Thompson and Mr Jaworksi about their understanding of the meaning of the claims. Experts generally need to explain what they understand the words to mean in order to articulate their opinions. There is nothing controversial about that. However this is not a case in which the patents use difficult technical language or terms of art which could not be understood by anyone. In my judgment the opinions of Mr Thompson and Mr Jaworksi are not admissible evidence as to the true construction of the claims in this case. Neither side sought to contend otherwise and I will not take the experts' views on claim construction into account.

Construction of the claims in this case

51. I will deal with the issues common to both claims 1 first.

spraying the walls of the enclosure

52. Both claims 1 use the expression "automated sprayer for spraying the walls of an enclosure with a cleanser". The main point is that SC Johnson contends that both claims require a device suitable for spraying "all the walls of the enclosure in sufficient volume to wet the surface enough to allow cleaning to take place". Unilever disagrees. It contends that there is no requirement that all the walls must be sprayed nor is there any basis to read in a requirement about volumes etc.. Unilever argues that the specification contains no teaching about what would or would not be a sufficient volume of cleanser.
53. Mr Malynicz submitted that a requirement to spray the walls of an enclosure means spraying all of them. He compared that with an instruction to paint the walls of a room. He said that if you were told to paint the walls of a room, you would understand that to mean all of the walls. So, he argued, the language itself used in the claims means spraying all of the walls. I do not accept that this argument goes as far as Mr Malynicz's submission would take it. It seems to me that the furthest it can go is to show that the words are capable of bearing the meaning contended for by SC Johnson but it does not demonstrate that they are incapable of bearing any other meaning.
54. I also note that one can employ some meticulous verbal analysis and observe that the claims use the plural and the definite article. That usage could be contrasted with a claim to a device suitable for spraying "a wall" of an enclosure.
55. On the other hand the claim can be read as requiring that one must have a device which can spray the walls but does not say how many walls and makes no assumption about the number of walls which may be present or their arrangement. The requirement to spray the walls could be read as an indication that it is the walls which must be sprayed as opposed to the ceiling or the floor.
56. In my judgment, as a matter of language, either side's construction of the words is possible. The answer must be found in the context in which the claims reside and what a skilled person would understand them to mean.
57. There was evidence that shower enclosures come in all sorts of shapes and sizes including four walled square enclosures, circular walled enclosures and spiral shapes with no door. Showers and baths can also be partly enclosed by curtains and can be partly open. I have no doubt that this would be part of a skilled person's common general knowledge on reading the patents.
58. It is clear that the specification as a whole describes embodiments which spray cleanser in a 360° pattern and which therefore will be capable of spraying all the walls of a normal sized shower enclosure. That will be true whether the enclosure could be said to have four walls in a square or one circular wall. For example the spinning cup and spinning disk arrangements will do that. However the specification explicitly mentions a partial shield (paragraph 24) to prevent spraying particular portions of the 360° arc which may have sensitive features and also describes a particular embodiment (figs 15 and 16) in which the nozzles provide a focused spray (as shown in fig 16) to one side and not a 360° spray (paragraph 99). Thus considering the specification as a whole, a skilled reader would understand that what is being described includes devices which can spray in a 360° pattern (and therefore spray all the walls of an enclosure) but also includes devices which do not do that.
59. It seems to me that the presence of devices which do not spray in all directions is decisive. There is nothing in the specification or the claims to indicate to a skilled reader that those embodiments are to be excluded from the claims. The arrangement with a focussed spray as in figure 16 is as much a device for spraying the walls of an enclosure as the spinning cup or spinning disk based devices. The context in which the claims must be read does not mandate a reading of either claim 1 as limited to the case of spraying in a 360° pattern, indeed in my judgment it mandates the opposite. I reject SC Johnson's construction.
60. I also reject SC Johnson's argument that the claim requires the spray to be in sufficient volume to wet the surface enough to allow cleaning to take place. First, to some extent it falls with the "all the walls" point since, if the claim does not demand spraying every wall, there is no reason to read in a functional limitation concerned with the amount of cleanser being delivered. Second it seems to me to be reading words into the claims which simply are not there. Obviously the skilled reader would understand that the point of spraying the walls is to help clean them but that is a long way from saying that the claim must be read as being limited in this way when the words are simply absent. Third, the words would import a vague standard into the claim which would depend on the nature of the cleanser. The patent makes it clear that cleansers vary (paragraph 5) so the amount of cleanser needed for cleaning to take place may be different for different cleansers. The claim cannot be intended to have a result that the question of whether a device infringes will depend on which sort of cleanser is put in it. Fourth it would make infringement dependent on the size of the enclosure. A device might be capable of thoroughly wetting all the walls of a small enclosure but not capable of spraying far enough to reach the far wall of a large enclosure when hanging from the shower.
61. In my judgment neither claim is concerned to impose substantial functional limitations on the capabilities of the device by using this language. The real meat of both claims 1 is concerned with the components of the automated sprayer device itself, with a metering system, a spray head and so on. The language at the start simply requires that the device is suitable for spraying the walls of an enclosure. It must be able to spray the walls but it does not matter how many walls can sprayed or how much spray is produced or how many walls the enclosure has. The claim probably does require that at least two walls can be sprayed since it uses the plural but that is simple enough since directing the spray into a corner will achieve that result.

[shower] enclosure

62. Unilever submitted that the word "enclosure" in both claims 1 referred only to a shower enclosure. For 169 Unilever pointed to claim 2 – which refers to hanging from a shower head. Similar points can be made for 547. SC Johnson did not accept this. Mr Malynicz submitted the word "enclosure" was general.
63. I reject Unilever's construction on this point. Neither claim 1 is expressly limited to shower enclosures. Paragraph 3 of the specification refers expressly to cleaning bath and shower enclosures and there is no reason to read a limitation to showers into those claims. In my judgment the language used is clear. The skilled reader would understand that the patentee used this language to avoid being limited to any particular enclosure. It could be a bath, a shower or anything else.

Stand alone (claim 1 547) and mountable wholly within the enclosure (claim 1 169)

64. Both claims 1 have similar limitations but the words used are different and I will treat them separately.
65. The parties were agreed about what a "stand alone" device was. It must have its own power source and its own source of fluid. A device which had to be connected to the electricity or water supply is not a stand alone device.
66. There were two further aspects to the scope of the term "stand alone" which were mentioned in submissions. I think it was common ground that "stand alone" required there to be a single housing and I will work on that basis without deciding the point. I am not aware that anything turns on it. The other issue was whether "stand alone" meant that the product was portable. While I can see that one reason for making a device "stand alone" could be in order to make it portable, I am not convinced that "stand alone" necessarily means portable. Since as far as I know nothing turns on it I will not decide the issue.
67. The parties were not agreed about the expression "mountable wholly within the enclosure". SC Johnson contended that it excludes a device connected to a water supply or mains electricity supply. That sort of device would not be mounted wholly within the enclosure. Unilever contended that a device which took its electrical power from the mains but was mounted in the enclosure would still satisfy this aspect of claim 1 of 169. Mr Norris referred to the example of an electric shower which takes its water and electricity from outside the bathroom but, as a physical unit, he said was mounted wholly within a shower enclosure. He contended that these showers were part of the skilled person's common general knowledge and would inform their reading of the patent. To Mr Norris's surprise, Mr Jaworksi had never seen an electric shower unit of the kind relied on in cross-examination and a debate ensued about UK vs US common general knowledge.
68. A further point relied on by Unilever was the wording at the end of claim 1 of 169. The last phrase of claim 1 provides:

wherein the sprayer is configured so as to be mountable wholly within the enclosure and when so mounted can spray the cleanser even when the sprayer does not receive water from a water supply of a building in which the enclosure is located. (emphasis added)

69. Unilever submits that the words in italics presuppose that a device mountable wholly within the enclosure could be connected to the water supply since otherwise the point being made would be redundant. If a device connected to the water supply was not one mountable wholly within the enclosure then there would be no need for the words in italics at all.
70. Although I think it is a close call, I find for SC Johnson on this point. It seems to me that the skilled reader would understand the language being used to mean that the whole device, all of it, had to be mountable within the enclosure. The draughtsman did not simply require that the automated sprayer had to be mountable within the enclosure, but wholly within the enclosure. A device like an electric shower (regardless of whether that particular thing is common general knowledge or not) can be said to be mounted within a shower enclosure but I am not convinced it would be fair to say it was mountable wholly within that enclosure if it takes a supply from outside. In any case this is not a patent for an electric shower. It is a patent for an automated gadget which may be hung from a shower head by a hook and is described with its own supply of cleanser and its own battery. In the context of the specification, I doubt a skilled reader would regard a sprayer which required power from outside and had a cable to connect to the external power supply as being the kind of thing referred to or claimed.
71. The point about the last words of claim 1 and the water supply is an impeccable piece of meticulous verbal analysis. The phrase can indeed be read in such a way that, in order for it to add a further limitation over and above the feature of being "mountable wholly within", it must follow that "mountable wholly within" necessarily admits of an external water supply. However I do not believe a skilled product designer would think like that nor do I believe they would think that the inventor thought like that either. In my judgment a fair reading is that the phrase about the water supply is simply intended to emphasise the point that the device really has to be mountable wholly within the enclosure and therefore able to work without an external water supply. The words are not mere surplus verbiage, they serve to emphasise that the whole of the automated sprayer, all of it, must be mountable within the enclosure.

"a control" – both claims 1

72. Claim 1 of 169 calls for "a control for automatically controlling spraying of the cleanser out of the sprayer" and claim 1 of 547 calls for "a control for initiating the spray cycle and automatically terminating it". Both phrases use the term "a control". The debate was whether this involved a human operator. Unilever said it did not and SC Johnson said it did.
73. SC Johnson pointed out that paragraph 11 uses the term "a control" in a context in which it clearly refers to the button pressed by the user. I agree that in paragraph 11 the reference to "a spray cycle initiated by the user via a control" uses the term "a control" to refer to a button or such like which the user can press to tell the device to start spraying (after a delay). However in the claims themselves I reject the argument that "a control" is simply referring to a button or switch. In claim 1 of 169 the control is for automatically controlling spraying of the cleanser out of the sprayer. A button cannot do that. The claim is referring to the whole control system. That will include (if present) the circuitry on the board 76 (in fig 5). In claim 1 of 547 the control is for initiating the spray cycle and automatically terminating it. Again a button alone cannot do that. A button to stop the spray is the antithesis of automatic termination.
74. Both claims are claims to a product per se. In my judgment they do not require the presence of a human operator.

Motorised spray head – claim 1 of 547

75. Unilever contends for a broad interpretation of this phrase and SC Johnson for a narrower one. The difference can be understood by reference to the prior art. Unilever contends that a device (in the US 808 patent) in which a motor actuates a cam which presses down on the nozzle of an aerosol can so as to start the spray is a motorised spray head. In its Grounds of Invalidity Unilever had also contended that a device (in the US 019 patent) in which the spray head does not move while spraying but which has a motorised pump to blow the air which caused the spray to form at a venturi nozzle was a motorised spray head because the motor is a necessary part of the spray mechanism, although Mr Thompson had reached a different conclusion and Unilever did not argue the point at trial. SC Johnson denies either of these are motorised spray heads. SC Johnson contends that the term means a spray head that is automatically moved by a motor to extend spray coverage.
76. First, it seems to me as a matter of language that what is being referred to is a spray head which is motorised. It is not talking about a head for a motorised spray. The thing motorised is the spray head not the spray.
77. Second, read in the context of the specification, the motorised spray heads are things like the spinning cup driven by a motor, the spinning disks and the spinnable dish which is driven by a motor and pulley system in the final embodiment in the specification. Although one might have thought the "motor" had to be an electrical one, paragraph 117 expressly teaches that the motor could be replaced by a mechanical wind up system. They are all spray heads which are driven to move by the action of a motor. The motor makes the spray head move so as to move the spray itself.
78. There are examples in the specification in which the spray head is not motorised. For example the fluidic oscillator is a static object. The specification teaches that the fluidic oscillator could be mounted on a rotating member driven by a motor (paragraph 95) but it is clearly optional. There is also no motor driving the spray head in figures 15 and 16. A circular 360° spray can be achieved by mounting four nozzles spaced 90° apart (paragraph 99). The spray head stays put. There was a suggestion that the solenoid valve in that embodiment counted as a motor but I disagree.
79. In my judgment the skilled reader would understand that "motorised spray head" referred to the sorts of motor driven spray heads in the specification. The term is used to refer to a spray head which is motorised so that the spray is moved about by the action of the motor. The term would be understood by the reader as a reference to those devices. The claim is claiming those kinds of devices and deliberately excluding other embodiments in the specification in which the spray head is not motorised, such as the figure 15/16 embodiment and the (unmotorised) fluidic oscillator.
80. Reading the document as a whole, I believe a reader would understand a sprayer with a motorised spray head to be one in which the head is motorised. The reason to motorise the head is to move the spray in some way – side to side, round in a circle or whatever.
81. I have asked myself whether my views on construction in relation to the "all the walls" point are consistent with those relating to "motorised spray head". In one case ("all the walls") it seems to me that the claim should be construed to include fig 15/16 whereas in this case it seems to me the claim excludes fig 15/16. However I believe there is no inconsistency. The difference between the two issues is that on the "motorised spray head" point the reader can see that the inventor has chosen a specific term which draws a distinction between different embodiments disclosed in the specification (motorised spray head) whereas for the "all the walls" issue there is no indication in the wording of the claim that a distinction between embodiments is intended and every indication that no distinction is meant at all.
82. I reject Unilever's construction of "motorised spray head". I doubt the word "automatically", which SC Johnson contends is part of the interpretation of motorised spray head, is necessary but nothing turns on that. A motorised spray head can be said to be a spray head that is moved by a motor. It moves the spray about or, in SC Johnson's words, extends spray coverage.

Claim 19 of 547

83. A small point arose on the interpretation of claim 19. The claim requires the spray head to be defined by an annular disk having a central opening with a seam between the cup and the disk. This claim is expressed to be dependent on claim 2 only. Nowhere in claims 1 or 2 is there any reference to a cup. The rotating cup feature comes into the claims at claim 15. It is obvious to any reader that "the cup" referred to in claim 19 must be the cup defined in claim 15. There is no other possibility. It was common ground that claim 19 should be read as dependent on claim 15 rather than claim 2. In terms of claim dependencies this does not cause a problem because claim 15 is itself only dependent on claim 2.

5. Novelty

84. There was no dispute about the law of novelty (sections 1(1)(a) and 2 of the 1977 Patents Act). The leading cases are Synthon v SKB [2006] RPC 10 and General Tire [1972] RPC 457. To deprive a claim of novelty the prior art must disclose something with the claims. The test is strict.
85. Unilever contends that claim 1 of 169 lacks novelty over prior art patents US 808 and US 019. It also contends that claim 1 of 547 lacks novelty over prior art patent US 808. For novelty it is convenient to consider the prior art document and then compare its disclosure to the claims.

5.1 US 5,884,808

86. The US 808 patent describes an apparatus for dispensing material from a container. There is a motor for repeatedly actuating the dispensing element and a battery to provide power to the motor. There is a controller for activating the motor at predetermined time intervals and an LCD display to provide an indication of the time remaining until the container is empty. Much of the teaching is concerned with saving power in order to prolong battery life.
87. Figures 1A and 2 of US 808 are as follows:

88. The container 18 is housed in an enclosure. The container can be a pressurised aerosol type where depression of the nozzle 56 causes a predetermined amount of chemical to be dispensed. The nozzle is actuated by a hammer and cam mechanism coupled to a motor through a gearing mechanism.

5.1 (a) Novelty of claim 1 of 169 over US 808

89. As regards claim 1 of 169, SC Johnson accepted that US 808 discloses all the elements of the claim save for the requirement for a sprayer "for spraying the walls of an enclosure with a cleanser". The argument was that the US 808 device cannot spray all the walls of an enclosure because it only sprays in one direction and also that an aerosol device of the kind described will not spray fluid in sufficient volume to wet the surface enough to allow cleaning to take place.
90. As a matter of construction I have rejected SC Johnson's argument that these concepts can be read into claim 1. The US 808 device is suitable for spraying the walls of an enclosure. As Unilever pointed out, if it was pointed at a corner, two walls would be sprayed. There is no limit in the claim concerned with the amount of material to be sprayed. I find therefore that claim 1 of 169 lacks novelty over US 808.

5.1 (b) Novelty of claim 1 of 547 over US 808

91. SC Johnson takes two points on the novelty of claim 1 of 547. The first is the same point as above for claim 1 of 169, which I have rejected. The second is "motorised spray head". If I had accepted Unilever's argument on the construction of motorised spray head then that would have led to this claim lacking novelty also, but I have rejected it.
92. Unilever's argument is that the device specifically described in the US 808 patent has a motorised spray head because the nozzle is moved by the action of a motor. I have held that "motorised spray head" refers to a spray head which is motorised so that the spray is moved about by the action of the motor. Although the action of the motor in US 808 does indeed cause the nozzle to move in order to be pressed downwards and activate the aerosol can, that does not move the spray itself. There is no such teaching. This device does not have a motorised spray head as called for by claim 1 of 547. That claim is novel over US 808.
93. There are no other arguments about novelty over US 808.

5.2 US 4,272,019

94. The US 019 patent describes a fluid sprayer apparatus and method. The device is described for delivering atomised fluid in a use area such as a cattle milking barn. Such delivery or spraying can be done using automatically operated switches and timing devices. The device can have at least one and preferably at least two spray heads which can be manually adjusted to direct a stream of atomised fluid in a particular direction. The spray heads operate according to the venturi effect with an air supply from an air blower. The container of fluid, blower, heads and timing means are preferably assembled into a wall mounted case or hung from the ceiling. There is a coded fluid delivery system to make sure that only approved fluid is dispensed. Figures 1 and 2 are as follows:

95. The fluid is held in container 27. An air blower 41 is controlled by a timer and controller 45 powered by an electric cord. The spray head 7 is shown in more detail in figure 2. The air is blown along the tubular sleeve 75 and comes out the top of spray head 7. The fluid is in the tube 19. Nozzle 11 is on the end of tube 19. As air blows past the end of nozzle 11 the reduced pressure of the air flow sucks the fluid out of the tube and forms a spray. Particular examples of fluids to dispense are an insecticide or a deodorant.

5.2 (a) Novelty of claim 1 of 169 over US 019

96. Unilever contends US 019 anticipates claim 1 of 169. SC Johnson takes a number of points. The first is the "all the walls" point which I have rejected. The US 019 device could spray the walls of an enclosure.
97. The second point is that the US 019 is concerned with atomisation rather than spraying and so SC Johnson submit the expression "spray the walls of an enclosure" is not apt to describe the space filling fogging operation performed by the US 019 device. I reject that. It may be another point on construction of the claims. There is no basis to read "spraying the walls" in claim 1 as referring to any particular kind of spray so as to exclude any other kind of spray. US 019 is clearly a sprayer system albeit that it is clear that part of the objective is to create a fog (e.g. col 9 line 52 refers to "the duration of spraying or fogging" and see also the reference to a "mist fog generator" at col 10 line 44). The fact that a fog is an apt description of what the US 019 sprayer produces does not mean the teaching of the document excludes spraying the walls. Far from it. In my judgment the US 019 would be understood as aiming to spray everywhere. The range is described as being 200 feet or more in contrast to other time release aerosol devices with a range of 15 to 20 feet or 40 to 50 feet for larger units (col 10 line 43-50). In my judgment the US 019 device will spray the walls of an enclosure albeit it will also generate a fog in the spaces between the walls.
98. The third point is that the device is not mountable wholly within the enclosure as a result of the need for an external electricity supply and the cord shown in figure 1 of US 019. I have accepted SC Johnson's construction of this term and therefore US 019 does not satisfy that feature of claim 1 of 169.
99. Unilever does not contend that US 019 anticipates any other claim of either patent.

6. Inventive Step

100. Section 3 of the Patents Act 1977 Act provides that an invention shall be taken to involve an inventive step if it is not obvious to a person skilled in the art having regard to any matter which forms part of the state of the art by virtue of s2(2) of the 1977 Act. A structured approach to the assessment of obviousness was set out by the Court of Appeal in Windsurfing International Inc v Tabur Marine [1985] RPC 59 and was adjusted somewhat by Jacob LJ in Pozzoli v BDMO [2007] EWCA Civ 588, [2007] FSR 37. It is:

(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?

101. Mr Malynicz properly reminded me to guard against hindsight. He reminded me of the trap explained by Laddie J in Haberman v Jackel International [1999] FSR 683 at paragraph 29 in which he pointed out the difficulty of the court's position, looking back knowing of the patentee's development and therefore knowing it is possible and knowing what it is. As Mr Malynicz submitted, the inventions in this case are simply explained and simply understood. With the benefit of hindsight they present an attractive and neat solution to a problem. This does not mean they are obvious.
102. The person skilled in the art, and the common general knowledge, have been identified above.
103. For the latter two Pozzoli steps, each combination of patent claim and prior art must be taken separately. I will deal with the 169 patent first.
104. There was a debate between the parties about the proper starting point. Much of Unilever's case was based on an argument which goes like this. The problem solved by the invention is to make an automatic shower cleaner or perhaps a better automatic shower cleaner. The skilled person reads the relevant prior art reference with that problem or objective in mind. The solution is obvious: to make what are simple adjustments to the device described in the document in order to render it suitable for the task in hand.
105. Unilever pointed out that this approach to the starting point is consistent with the specification of the patents which states expressly at the end of the background section, following a review of the prior art, that "accordingly there exists a need in the art for an improved system of automatically spraying down a bath and shower enclosure" (paragraph 9). SC Johnson did not accept that the idea of an automated shower cleaner itself would necessarily occur to the skilled person when looking at a given item of prior art. Mr Malynicz submitted that it was not legitimate to assume without evidence that the skilled person would read the prior art with the idea of a need for an automatic shower cleaner in mind. The fact that the patent acknowledges the problem does not determine the matter. He submitted that invention may lie in the idea.
106. I will not assume that the skilled person will read a given item of prior art with the idea of looking for an improved system of automatically spraying down a bath and shower enclosure. Whether or not the skilled person does that is a matter to be decided on the facts and evidence and in particular having regard to the common general knowledge.
107. The skilled person is someone working on household care products in a company developing and selling such goods. They are looking to improve cleaning products in general. That is their job. Shower cleaning products such as hand held sprayers were part of the skilled person's common general knowledge. Thus the idea of making improved shower cleaning products was part of their common general knowledge. That is the proper context in which a skilled person considers the relevant items of cited prior art. The context does not justify approaching the case as if the skilled person reads the prior art looking to make an automatic shower cleaner.

6.1 Inventive step of 169

108. I have decided claim 1 of 169 lacks novelty so no question of inventive step arises. As regards claim 2, Unilever accepts it is novel but argues it lacks inventive step. SC Johnson maintains claim 2 is valid independently of claim 1 and so that is the issue arising now.
109. Claim 2 adds to claim 1 of 169 the requirements that the device can be hung from a shower head and operates by battery power. Unlike claim 1 of 169, which I have held is not limited to shower enclosures, claim 2 refers expressly to showers. It seems to me that this must mean that the product claimed in claim 2 is indeed a sprayer for the walls of a shower enclosure, whereas claim 1 need not be.
110. Thus overall in terms of concept the claim relates to an automatic sprayer for spraying the walls of a shower enclosure with cleanser which is mountable wholly within the enclosure, hung from a shower head and operates by battery power. The sprayer will have the detailed features set out in claim 1.

6.1 (a) Inventive step of claim 2 of 169 over US 808

111. I have summarised the disclosure of US 808 above in relation to novelty. It is a battery powered device. The differences between US 808 and claim 2 of 169 are that the sprayer must be for spraying a shower enclosure and must be suitable to be hung from a shower head.
112. In my judgment it would be obvious to a skilled person, bearing in mind their common general knowledge that I have addressed above, that this kind of free standing spray device would be suitable to be used to dispense shower cleanser by spraying the shower walls. There is no magic in the particular fluid which the US 808 device dispenses and the document specifically discloses that the product can be used for dispensing odorizing, cleaning or disinfecting material at col 2 line 46. Thus the document expressly suggests using the device to dispense cleaning material albeit there is no specific reference to the cleaning material being shower cleanser. The skilled person knows that shower cleanser fluid is to be sprayed on the walls and the US 808 device can do that.
113. The device is a small, battery powered automatic spray device. I do not think it would require an act of invention for a skilled person looking to make general improvements to cleaning products, including shower cleaning products, to think of adapting it to make an automatic shower cleaner spray. It is true that the only specific example of using the device in US 808 as a cleaner dispenser involves directing the flow of liquid directly into a toilet bowl (col 1 line 33) but that does not matter. For one thing the disclosure of US 808 is clearly not limited to that. Moreover the skilled person knows about shower cleaners already.
114. There was a point discussed at trial that the device described in the detailed specification of US 808 was designed only to dispense fluid for a very short time, less than one second (col 4 line 34). That does not seem to me to matter. It would be perfectly obvious to a skilled person that the details of how much fluid should be dispensed and for how long would depend on the particular cleanser fluid they wished to employ.
115. A further point taken by SC Johnson was that the focus of the disclosure in US 808 was concerned with power saving and energy conservation and that this would be of no interest to the skilled person in the present context. It is true that the focus of US 808 is on energy conservation in a automatic dispenser device and much of the teaching relates to the microprocessor control of the mechanism to save battery life. However that does not seem to me to matter. To a skilled person reading US 808, the key thing they will see in my judgment is that it discloses an automatic dispenser device for spraying cleaning liquid. The fact that the inventors of US 808 were concerned with improving battery life does not undermine that at all. If the skilled person thought about the battery life issue at all, if anything it would be an encouragement to consider US 808 further.
116. No doubt if the device in US 808 was to be pressed into service to spray the walls of a shower, the device would need to be waterproof but there is nothing inventive about that.
117. Would it be obvious to hang the device from a shower head? Mr Thompson's view was that hanging a shower cleaning device from the shower head was obvious given the few places in a shower enclosure which were available. As he said shower enclosures are made of materials that are difficult to attach to like ceramic tiles and glass. Drilling holes in such a surface would plainly be undesirable. He pointed out that using a hook to hang products in a shower enclosure was a common solution used before the priority date and gave Radox shower gel as a well known example dating back to the 1970s.
118. Mr Jaworksi naturally accepted that the device disclosed in US 808 could be hung from a shower head given its battery power and its size and weight. His view was that it was not obvious to do so because that might compromise the ability of the device to spray all the walls of the enclosure. However that view is only relevant if the claim requires all the walls to be sprayed – which I have rejected.
119. I find Mr Thompson's reasons persuasive and I accept them. In my judgment claim 2 of 169 is obvious over the US 808 patent.

6.1 (b) Inventive step of claim 2 of 169 over US 019

120. I have summarised the disclosure of US 019 above in relation to novelty. The device is a fairly large item with mains electric power to drive the air pump which produces the mist through the spray nozzles. I am not convinced claim 2 of 169 would be obvious over this reference since the claim requires a battery and the ability to be hung from a shower head. To go from US 019 would require the skilled person to take quite a series of steps:

i) They would have to think of using a device like US 019 to spray a shower. That alone may well be obvious but simply mounting the US 019 device in a shower would not fall within claim 2.

ii) They would have to decide to dispense with mains power and use battery power. But the sprayer in US 019 is based on an air pump which needs significant energy to drive the air to make the spray. No doubt large batteries could be used to drive the air pump but really one is expecting the skilled person to get rid of the air driven spray technique altogether and use a different spray method. As a step on its own I doubt there is anything inventive about replacing one spray technique with another but I doubt a skilled person would start by saying I must replace the power cord with a battery and so I need to change the spray method to accommodate that. Why change to a battery at all? This seems to me to be tangled up with hindsight.

iii) They would need to decide to hang the whole thing from a shower head. It is true that US 019 contemplates hanging the device from a ceiling (Col 1 line 59) but that is a long way from saying that the device is a small object which could be hung from a shower. I doubt a skilled person would see in US 019 the idea of a device small enough to do that.

121. Even if individually one or more of these steps was obvious, I reject the case that they are cumulatively obvious. Claim 2 does involve an inventive step over US 019.

6.1 (c) Inventive step of claim 2 of 169 over JP 059

122. I will address the question of claim 2 of 169 in relation to prior art patent JP 059 after considering JP 059 below.

6.2 Inventive step of 547

123. I have found claim 1 of 547 is novel. In terms of inventive concept the claim relates to a stand alone automatic sprayer for spraying the walls of an enclosure with cleanser. It has a motorised spray head and the other detailed features set out in claim 1. The point of the motorised spray head in claim 1 is to distribute the cleanser more widely than would otherwise be the case. I remind myself that claim 1 of 547 is not limited to bath or shower enclosures.

6.2 (a) Inventive step of claims 1 and 15 of 547 over US 808

124. I have summarised the disclosure of US 808 above. It is a stand alone device. The difference between US 808 and claim 1 of 547 is that US 808 does not have a motorised spray head.
125. Mr Thompson's opinion was that motorised sprays as he understood the term were common general knowledge. This included techniques which I have decided are not within the term "motorised spray head" but it also included spinning cups systems which are motorised spray head systems on any view. Accordingly rather than consider the obviousness of "motorised spray heads" in the abstract, especially since some of the evidence directed to it depends on an interpretation of the term I have rejected, it is convenient at this stage consider the validity of claim 15 of 547. If claim 15 lacks inventive step then so too does claim 1 of 547.
126. Claim 15 relates to the spinning cup metering and spraying system such as is described in the patent in the first embodiment (see e.g. fig 5). The arrangement includes a spinning cup, an annular lid and a tube to take the cleanser into the cup. I remind myself that claim 15 is dependent on claim 2 and therefore also requires a container for the cleanser but nothing turns on that.
127. Mr Jaworksi's view was that the inventive concept of the rotating cup system of claim 15 provided a means to reduce shearing of the cleanser when it was sprayed thereby keeping it in relatively large drops (not atomised or misted). I do not accept that since there is nothing about large drops in claim 15. It seems to me that the inventive concept of claim 15 is a particular arrangement of the automatic sprayer with the metering and spraying provided by a rotatable cup covered by an annular disk. The arrangement allows the spray to be sent out in all directions (360°) but is not limited to any particular droplet size.
128. The difference between claim 15 and US 808 is that the fluid is dispensed from the device in US 808 by a single nozzle on top of an aerosol can. There is no spinning cup in US 808. The question is whether a skilled person would modify the device of US 808 to incorporate a spinning cup system (including annular lid and tube) to dispense cleaner fluid?
129. Unilever contend the spinning cup spray system is obvious. Mr Thompson's view was that rotary atomisation was a well known atomisation technique, including the use of rotating cups and annular disks, and would be common general knowledge. The technique is versatile and he thought it would be routinely assessed if one were looking for technology where a spray required a 360° pattern. Mr Thompson referred to the Lefebvre text, which discloses various rotary atomisers including a rotating cup atomiser but I have found that Lefebvre itself was not common general knowledge. That said however I did not understand Mr Thompson's opinion to be that rotating cups were common general knowledge just because they were in Lefebvre. I understood his evidence to be that Lefebvre was illustrative of the point Mr Thompson was making.
130. The spinning cup in Lefebvre is shown below:

131. Mr Jaworksi's view was the rotating cup system was not common general knowledge and claim 15 not obvious over any of the cited prior art.
132. Although as an individual Mr Thompson had more knowledge of spraying techniques, nozzles and the like than a person of ordinary skill in the art, I still prefer Mr Thompson's opinion on this issue. I accept his evidence that a spinning cup arrangement itself, including an annular disk and a tube, was common general knowledge. However the fact the arrangement was part of the skilled person's common general knowledge does not mean that a finding of obviousness is automatic. Mr Jaworksi also expressed the view that it was not obvious to incorporate a motorised spray head into the US 808 device to achieve 360° coverage because the housing would get in the way and need significant modification.
133. A skilled person reading US 808 would see that, as described, the spray is directed from a single point. Clearly the spray would spread somewhat and single nozzles which produce a spray spread out to about 120° or so were well known and readily available. There would be nothing inventive in distributing the cleaner fluid in that way. It would be entirely obvious to use such a nozzle in US 808 but that would still only direct the spray over at most a third of a circle.
134. The reason for using a motorised spray head such as a spinning cup arrangement is to distribute the spray over a much wider area than 120°, i.e. round in a complete circle. Mr Jaworski's view was that this was not obvious over US 808 because of the need to significantly modify the housing. I agree that the housing would indeed need a substantial redesign but that seems to me to be well within the abilities of the skilled person. Those working in the FMCG field were tasked with building and adapting automatic household dispensing devices.
135. I believe there is no inventive step involved in changing the spraying technique described in US 808 to an alternative arrangement taken from the common general knowledge such as the spinning cup system. The motive for doing so would be to distribute the spray in all directions from the device, which would an obvious thing to do in order to widen the area covered by the spray as compared to that described in US 808.
136. Separately it seems to me that in any event it would have been obvious for a skilled person to look for alternative spraying techniques which were capable of spraying in all directions and so, even if spinning cup systems were not part of the common general knowledge, a technical source of the kind represented by the Lefebvre book would be consulted by a skilled person and the spinning cup systems would be identified as suitable.
137. Accordingly claim 15 of 547 does not involve an inventive step over US 808 and necessarily therefore neither does claim 1.

Inventive step of claim 5 of 547 over US 808

138. This claim adds to claim 1 the requirement of a hanger hook for mounting the sprayer on a shower spout and also includes the features of claims 2 and 3 of a container for the cleanser and a tray to receive the cleanser container in an inverted fashion.
139. These features mean that claim 5 is limited to a shower cleaning device. In that respect claim 5 differs from claims 1 and 15 of 547, which are not so limited. They also mean that claim 5 is similar in scope of claim 2 of 169, since both claims refer to a shower head hanger. However unlike claim 2 of 169, claim 5 of 547 requires the presence of a motorised spray head as a result of its dependency on claim 1 of 547 and it also requires the cleanser container to be inverted. Thus although I have decided that claim 2 of 169 is obvious over US 808, it does not follow that claim 5 is also invalid since I did not then have to consider the motorised spray head and the inversion of the container.
140. Again, as with claim 1 of 547 above, rather than consider motorised spray heads in the abstract I will consider a spinning cup arrangement since, all other things being equal, such an arrangement will be within the scope of claim 5.
141. I have already decided that it was obvious to adapt US 808 to make an automatic shower cleaning spray with the unit hanging from the shower head and also obvious over US 808 to make a device employing a spinning cup system. I remind myself that it by no means follows that just because those two distinct steps are obvious, taking them both together would also be obvious.
142. It seems to me that a skilled person who had thought of adapting the US 808 device to clean showers would see that a 360° spray technique would be beneficial. The spinning cup achieves that end and is part of the common general knowledge. They are an obvious combination.
143. Mr Jaworski's view was that it was not obvious to hang from the shower head a device intended to spray all the walls of the shower because to do so might compromise the ability of the device to spray all the walls of the enclosure. That was not relevant as far as claim 2 of 169 was concerned but it is relevant here since the device under consideration is one with a spinning cup spraying in all directions.
144. I do not regard Mr Jaworski's point as one which would make it inventive to hang a shower spraying device from a shower head. As I have said before there are a very limited number of places to put an automatic shower cleaner. That is sufficient to make it obvious. Moreover, even if a skilled person paused to think whether mounting a 360° spraying device asymmetrically might cause a problem, it would not deter them from hanging the device in the obvious place. It is obvious that the spray needs to reach the walls from wherever it is dispensed but there is nothing inventive in achieving that.
145. The one aspect of claim 5 I have not addressed so far is inversion of the container. Mr Jaworski's view was that was not obvious to invert the hammer and cam aerosol spray actuation arrangement shown in US 808 because it would not work upside down. There was evidence of other techniques to achieve that result but I do not have to resolve that issue because by adopting the spinning cup system the skilled person is no longer using the hammer and cam aerosol system of US 808 anyway. It seems to me that in general terms inverting the container so that the neck is pointing downwards is not inventive and I find that claim 5 of 547 does not involve an inventive step.

Inventive step of claim 6 of 547 over US 808

146. This adds to the device in claim 5, the requirement for a suction cup for securing the sprayer to the wall of the enclosure. It is obvious.

Inventive step of claim 19 of 547 over US 808

147. Claim 19, which I have held as a matter of construction must depend on claim 15, calls for the spray head to be defined by an annular disk having a central opening with a seam between the cup and the disk. Mr Jaworksi's opinion was that it was valid for the same reasons as he gave for claim 19 because rotary cup sprayers would not have been obvious. Since I have held they are obvious, I find that claim 19 is obvious as well.

Inventive step of claim 26 of 547 over US 808

148. This claim requires the spray head to be a rotatable fluidic oscillator. Fluidic oscillators create a course fan spray in the vertical plane by moving a stream of liquid up and down. Since claim 1 requires the spray head to be motorised, the device claimed in claim 26 will give 360° coverage.
149. I doubt either side is very concerned about this claim. Mr Thompson's view was that this was less commonly applied technology but he thought it would probably have come into consideration by a skilled person reviewing technologies although not commonly applied. Mr Jaworksi did not regard fluidic oscillators as obvious and referred to a major supplier of such components (Bowles Fluidics Corp) who primarily supply nozzles to the automotive industry for use in car windscreen washer fluid dispenser. In his reply report, Mr Thompson did not pick up on Mr Jaworksi's views on fluidic oscillators.
150. I prefer Mr Jaworksi's evidence on this point. Claim 26 is not obvious over US 808.

Inventive step of claim 33 of 547 over US 808

151. This is a method claim which requires the use of a stand alone automated shower sprayer disclosed in any preceding claim and then sets out three steps of the method itself. I have found that a stand alone automated shower sprayer according to those claims (save for claim 26) is obvious and so the issue relates to the method steps claimed. These come down to (i) activating the timer, (ii) after a first countdown spraying the cleanser and then (iii) after a second countdown stopping the spray.
152. Mr Thompson's view was that the first step of activating the timer did not require the action of a user. I disagree. In my judgment claim 33 is talking about a user activating the timer in the first place. This could be by the user pressing a button but it seems to me it is not limited in any way. Mr Thompson also expressed the view that there was nothing in the claim to exclude a device operating on a repeated basis. I agree. So once the user has activated it, the device operating the method in claim 33 may spray automatically multiple times.
153. Mr Jaworksi's view was that there was a distinct difference between the intended use of the timer in US 808 as compared to claim 33. This was because US 808 is intended to automatically spray on a repeating basis after initial activation and requires no user intervention until either the batteries or the fluid runs out.
154. I think the mode of action of US 808 described by Mr Jaworksi falls within claim 33 because once the user activates the device in US 808 (and therefore activates the timer) the device can count down, spray for a period and stop. The fact it will, in all probability, repeat that process again and again afterwards is irrelevant.
155. Thus claim 33 is obvious over US 808 (save insofar as it is dependent on claim 26).

6.2 (b) JP 10-328059

156. The JP 059 document is a Japanese published application. The English translation is agreed. It describes a bathroom cleaning device which automatically cleans by spraying the inside of the bathroom with detergent and with water. The device can be understood from figs 1 and 2:

157. The cleaning device 1 has a number of nozzles (2, 3, 11 and 14). There are water nozzles (2 and 3) and detergent nozzles (11 and 14). Nozzles 2 and 11 spray the bath 18 while the other pair spray the rest of the bathroom 19. Area 19 is called the "washing place" in the translation. The device is plainly suitable for spraying (inter alia) the walls of the bathroom. Paragraph 18 of JP 059 refers to spraying the "whole surface" of the bath tub and to spraying detergent "without restrictions" on washing place 19. Spraying the walls of washing place 19 is depicted in fig 3:

158. The system is automatic and is controlled by a control section 16. There is an operating panel 17 outside the bathroom by the door.
159. The spray can be set at an angle (a) and rotated by a motor 35. This is shown in fig 4:

160. In fact the document regards everything described so far as known. The particular feature the patent application is directed to as being inventive over known systems is a detail of the water nozzles. It is called a subsidiary spraying orifice (item 6 in fig 1) which sprays water sideways to clean off the detergent nozzles after they have sprayed detergent.

Inventive step of claim 1 of 547 over JP 059

161. It is common ground that claim 1 of 547 is novel over this prior art. Although the JP 059 specification does not say so in terms, the water would probably come from the mains supply and there is no suggestion that the device takes power from a battery. Moreover the device is split into three parts in three different places, the sprayer is in the bathroom, there is an external operating panel by the door and a control section above the ceiling. Thus JP 059 is not a stand alone device and does not satisfy claim 1 of 547 on any view. In terms of that claim, the JP 059 specification does disclose an automated sprayer for spraying the walls of an enclosure with cleanser which has a metering system, a motorised spray head and a suitable control. Therefore "stand alone" is the only difference between claim 1 of 547 and the JP 059 disclosure. There is no material difference between "detergent" in JP 059 and "cleanser" in claim 1.
162. In terms of differences, I will also deal at this stage with the distinction (if any) between the disclosure of cleaning a bathroom (comprising a bath) and cleaning a shower. That is because although claim 1 of 547 is not limited to a device for cleaning a shower, other claims are limited in that way such as claim 5 of 547 and claim 2 of 169. Some of the arguments relate to shower cleaning and it is convenient to take that into account at this stage.
163. JP 059 as a document only depicts and refers to a bath and a "washing place" in the bathroom. There is no shower shown but in my judgment any skilled person reading JP 059 would immediately think about the disclosure in the context of shower cleaning as well. It did not require an act of invention to think of adapting JP 059 specifically in order to clean a shower enclosure and to consider how that might be done.
164. Mr Thompson's view was that a stand alone device, which automatically sprayed detergent on the walls of a shower, was obvious over JP 059. It was obvious that to clean a shower, no water needed to be dispensed, only detergent. For detergent only delivery, a device based on JP 059 would require no water supply and this would make it a compact device, able to be powered by a battery. He thought the skilled person would readily see that the fact the JP 059 device was described with three separate parts with an operating panel and control section separate from the sprayer was just a factor of the particular installation shown and not a limiting factor in the design. Mr Jaworksi's view was to the contrary and since there are a number of factors to consider, it is convenient to look at them separately. However I remind myself that a step by step approach to obviousness is not right and unfair to inventors and I will consider the matters as a whole after dealing with each one.
165. The four detailed points are the water supply, detergent, electricity and the housing.

Water

166. On the stand alone point, there was an argument about using a water tank in JP 059 instead of the mains supply. Mr Thompson thought it would be obvious but Mr Jaworksi did not agree. I agree with Mr Jaworksi and I will say no more about water tanks.
167. Mr Thompson's view was that the skilled person would see the water and detergent systems in JP 059 as independent of each other. He thought the reader would understand that the device could spray detergent without being connected to the water supply (this was also a point of particular relevance to claim 1 of 169). Mr Jaworksi did not agree. He pointed out that paragraph 5 of JP 059 mentions dilution of the detergent with water and thought this suggested that the detergent might be in a dry or particular form, prone to return to this state on drying. In reply Mr Thompson expressed the view that dilution could be carried out as part of refilling and that dilution of detergent was not an integral part of the operation of the device. He did not agree that the detergent would be in powder form. I prefer Mr Thompson's opinion that the skilled person would see the detergent and water systems in JP 059 as independent. Even if a skilled person considered using powdered detergent as one way of carrying out JP 059, I am sure they would also consider using detergent in a liquid form since it is to be sprayed. It is also true that dilution of detergent is mentioned but I do not think a skilled reader would understand that reference to mean that the device was incapable of dispensing detergent unless it had a water supply.
168. The question is whether the skilled person, considering adapting the device in JP 059 to clean a shower, would think that water did not need to be dispensed from the device at all and would therefore consider making a device which only dispensed detergent. Mr Thompson thought this was obvious because the two (water and detergent) would be understood to be independent and Mr Jaworksi view was to the contrary. On this point I prefer Mr Thompson's evidence. I also bear in mind that the well known hand held shower spraying devices do not spray water on the shower walls, they only spray cleanser. It seems to me that this is a further reason why the skilled person would see no need to keep the water dispensing aspect of JP 059 if they considered making a shower cleaner based upon its teaching. The shower cleaner devices they were already well aware of from their common general knowledge only sprayed cleanser/detergent and not water. Insofar as water is needed, there is an obvious readily available source, the shower itself.
169. Mr Jaworksi's view was that it was not obvious to dispense with the water spray function of JP 059 because of the problem of nozzle clogging. Part of what is disclosed in JP 059 is to use the water spray in order to wash the detergent nozzles which may become clogged with detergent over time. Now the invention in the patents in suit does not have a built-in water spray to clean the cleanser spraying components either but Mr Malynicz submitted that the invention gave rise to an unexpected benefit in this respect. He submitted it was an indication of non-obviousness. Mr Malynicz referred to Mr Jaworksi's evidence that SC Johnson did not know in advance that the device disclosed in the patents would be satisfactorily cleaned by the splash water from a shower. I do not accept this submission. There is nothing in the SC Johnson patents about shower water cleaning the nozzles. Whether it is a feature of a specific product made by the SC Johnson inventors is not the issue. It is not part of the claims. The claimed invention does not require nozzles to be cleaned by shower water and therefore a possible risk of clogging must be a potential drawback the skilled person is prepared to live with. In any event I do not regard the fear of clogging as something of sufficient weight to put off the skilled person from dispensing with the water spray in JP 059 when cleaning a shower.
170. Mr Malynicz also relied on a passage from Mr Thompson's second witness statement (paragraphs 22 and 23) to seek to undermine Unilever's obviousness case over JP 059 in this respect. The argument is that in these passages Mr Thompson was asserting that a shower would not cause water to spray over all the walls of a shower enclosure, in particular not over the wall to which the shower is fixed. So the argument went that it cannot be obvious to dispense with the water supply in JP 059 because Mr Thompson actually believed that a shower would not rinse all the walls of a shower enclosure. Mr Malynicz submitted that the fact that Mr Thompson was actually mistaken, because the water sprays everywhere inside a shower, is not the issue.
171. I do not accept that argument. First, the reasons why I think it would be obvious to dispense with the water spray function of JP 059 do not start from the use of shower water to spray the walls, they start from the independence of water and detergent in 059 and the well known hand held shower cleanser dispensers which only spray cleanser anyway. In my judgment the skilled person would have those hand held products in mind at all times. Second I understand the point Mr Thompson was making to be simply that coverage of the walls by shower water is not uniform, which seems to me to be unexceptional. It does not undermine the obviousness case over JP 059.

Detergent

172. Mr Thompson pointed out that the JP 059 document does not explain the source of detergent. His view was the skilled person's common general knowledge would tell them that the detergent would be stored in a container. I accept that. The document does not spell out the source of detergent but it seems to me that to any skilled person reading it would be wholly obvious to put it into practice using a detergent container located in the device.

Electrical power

173. Mr Thompson's view was that as regards power, it was obvious to use batteries for a domestic appliance. Mr Jaworksi's view was that the device would require considerable power because of the control systems in operation and the volume of liquid – pre-rinse, cleanser and post-rinse being sprayed. He thought it would be unsuitable for battery operation. I think it would be obvious to use batteries to run the device provided it only needed to spray detergent. The battery power only needs to drive the detergent spray and power the motorised spray head. A battery will obviously provide sufficient power for that.

Single housing

174. Mr Thompson thought it would be obvious to integrate the three separate parts of the device in JP 059 in a single housing. Integrating the device into a single housing would require bringing the control section and operating panel inside the bathroom. Mr Jaworksi's view was that this was not obvious because it would complicate installation and would necessitate waterproofing. I prefer Mr Thompson's reasons. It is an obvious thing to do. The installation is not complicated. To a person in the household care field, making an electrical product which goes into a bathroom waterproof is entirely obvious. Examples given at trial were electric shower units and electric toothbrushes.

Looking at the matters as a whole

175. Standing back and looking at the various points as a whole, it can be said that there are a number of changes which would have to be made to convert JP 059 into a stand alone shower cleaning device within claim 1 of 547. The fact that multiple changes would be needed to convert it was one of Mr Jaworksi's reasons why the invention was not obvious. It seems to me that the changes addressed above all follow plainly and logically from a single starting point. That starting point is the idea of using a bathroom cleaning system to clean a shower enclosure, which I regard as a wholly obvious idea. Once a skilled person has had that idea then I believe it would be obvious to adapt the device to produce a stand alone, battery powered device based on the detergent dispensing function of JP 059.
176. Accordingly I find that claim 1 of 547 is obvious over JP 059 and I need to consider the other claims of 547 which are maintained as independently valid.

Inventive step of claim 5 of 547 over JP 059

177. This claim adds to claim 1 the requirement of a hanger hook for mounting the sprayer on a shower spout and also includes the features of claims 2 and 3 of a container for the cleanser and a tray to receive the cleanser container in an inverted fashion.
178. I do not regard any of these features as giving rise to an inventive step over JP 059 even when they are taken together. Part of the analysis of inventive step for claim 1 of 547 over JP 059 involved the point that the device was for use in a shower and had a container. I have already addressed the obviousness of hanging the device from a shower head (or spout). It was in a slightly different context but that seems to me to make no material difference. Inverting the container so that the neck is pointing downwards to let the fluid out is not inventive.

Inventive step of Claim 2 of 169 over JP 059

179. Although it is out of order, it is convenient at this point to consider claim 2 of 169 over JP 059. Claim 2 of 169 requires an automatic sprayer which is mountable wholly within the enclosure rather than one which is stand alone but a stand alone device will satisfy the "mountable wholly within" feature. The stand alone device I have found to be obvious above is not connected to the water supply and so satisfies the final feature of claim 1 of 169 on which claim 2 of 169 depends. Claim 2 of 169 itself requires the sprayer to be suitable for hanging from a shower head and a battery. It follows from my conclusion about claim 5 of 547 that claim 2 of 169 is also obvious over JP 059. The reasons are the same.

Inventive step of claim 6 of 547 over JP 059

180. This adds to the device in claim 5, the requirement for a suction cup for securing the sprayer to the wall of the enclosure. It is obvious.

Inventive step of claim 15 of 547 over JP 059

181. Claim 15 relates to the spinning cup metering and spraying system.
182. Would a skilled person taking the steps I consider to be obvious over JP 059 include a spinning cup system in their device to dispense detergent? I believe they would for the same reasons as I considered in relation to the obviousness of this claim over US 808 and for a further reason. The spray head disclosed in JP 059 itself is a motor driven rotatable spray head. It rotates the fluid spray around to spray a wider area. There is nothing inventive for a skilled person employing other technical expedient from their common general knowledge (the spinning cup etc.) for achieving a similar result.

Inventive step of claim 19 of 547 over JP 059

183. Claim 19 stands or falls with claim 15 (see the same issue vis a vis US 808) and is therefore invalid.

Inventive step of claim 26 of 547 over JP 059

184. I have held this claim is not obvious over US 808. The case over JP 059 is no stronger and so it is not obvious over JP 059 either

Inventive step of claim 33 of 547 over JP 059

185. This is a method claim which requires the use of a stand alone automated shower sprayer disclosed in any preceding claim and then sets out three steps of the method itself. These come down to (i) activating the timer, (ii) after a first countdown spraying the cleanser and then (iii) after a second countdown stopping the spray. The countdowns are automatic. Mr Jaworksi accepted that the steps of claim 33 were disclosed in JP 059. The difference in his view was that the sprayer called for was not disclosed in the prior art. On that basis since I have found the other claims to be obvious, claim 33 would be obvious as well unless it was amended to be limited to claim 26.

6.2 (c) Inventive step of claim 1 of 547 over US 019

186. I have summarised the disclosure of US 019 above in relation to novelty. As I said in relation to obviousness of claim 2 of 169, the device is a fairly large item with mains electric power to drive the air pump which produces the mist through the spray nozzles.
187. I am not convinced claim 1 of 547 would be obvious over this reference. A series of steps would be needed:

i) The device would have to be made to stand alone (which means inter alia it needs battery power). This involves different considerations from the ones applicable to JP 059 because the spray here is driven by an electric air pump.

ii) The device would need to be given a motorised spray head, replacing the air driven venturi system. The venturi system disclosed in US 019 is a key aspect of the whole disclosure. It is not clear to me what the motivation for removing it would be, without hindsight.

188. Even if either step individually was obvious (as to which I am doubtful), I reject the case that they are cumulatively obvious. If claim 1 of 547 is not obvious over US 019 then none of the claims of 547 are obvious over US 019.

7. Conclusion

189. My conclusions are these:

i) Claim 1 of 169 lacks novelty over US 808. All the other claims of both patents are novel.

ii) Claim 2 of 169 is obvious over US 808 and over JP 059 but not obvious over US 019.

iii) Claim 1 of 547 is obvious over JP 059 and US 808 but not obvious over US 019.

iv) Claims 5, 6, 15, 19 and 33 of 547 are obvious over US 808 and JP 059

v) Claim 26 of 547 is not obvious. Accordingly claim 33 of the 547 patent is partially invalid and only valid insofar as it is limited to the fluidic oscillator.

190. Accordingly the 169 patent is wholly invalid. In effect the 547 patent is almost entirely invalid too but given that claim 26 of 547 (the fluidic oscillator) is not obvious, the conclusion as regards 547 is a finding of partial validity.