7 Rolls Buildings
London EC4A 1NL
B e f o r e :
| BRIGADE (BBS-TEK) LIMITED
|- and -
|AMBER VALLEY LIMITED
Guy Tritton (instructed by Spratt Endicott) for the Defendant
Hearing dates: 4th, 5th March 2013
Crown Copyright ©
Judge Birss :
|The person skilled in the art||16|
|Common general knowledge||18|
|The claims and construction||39|
|Nakagawa/known spoken alarms||113|
|The use claim and s60(2)||128|
The person skilled in the art
Common general knowledge
i) tonal alarms were used on reversing vehicles;
ii) voice announcement warnings were used on reversing vehicles;
iii) loud speakers could be used to emit broad band noise; and
iv) audio signals of any frequency in the audible range can be generated and outputted.
Locatability of sounds
"It is known that accurate sound localisation is one of the most complicated processes performed by the brain. Nethertheless, it is also known that, given appropriate cues, the brain can detect the direction of a sound source up to an accuracy of 2°. This high degree of accuracy is only possible when the sound is complex and made up of a majority of frequencies in our hearing range. The brain can not locate, with any degree of spatial precision, simple pure tones. Given this knowledge it is remarkable that for decades alerting sounds in common usage, in every and any situation, for which directionality would seem an essential characteristic, are not complex enough to permit accurate localisation. In other words devices which are supposed to help us localise sounds do not possess the acoustic complexity necessary for accurate localisation."
The claims and construction
1. Use of a device which is adapted to emit broad band noise as a locating device.
6. A signal generating means comprising means for generating a locating sound comprising a burst of broad band noise covering a majority of frequencies in the human hearing range.
1. Use of an indicating device which is adapted to emit broad band noise as a locating device.
6. An indicating device with a signal generating means comprising means for generating a locating sound comprising a burst of broad band noise covering a majority of frequencies in the human hearing range.
9. Use of a vehicle siren
devicewhich is adapted to emit broad band noise as a locating device.
14. A vehicle siren with a signal generating means comprising means for generating a locating sound comprising a burst of broad band noise covering a majority of frequencies in the human hearing range.
5. One might have thought there was nothing more to say on this topic after Kirin-Amgen v Hoechst Marion Roussel  RPC 9. The judge accurately set out the position, save that he used the old language of Art 69 EPC rather than that of the EPC 2000, a Convention now in force. The new language omits the terms of from Art. 69. No one suggested the amendment changes the meaning. We set out what the judge said, but using the language of the EPC 2000:
 The task for the court is to determine what the person skilled in the art would have understood the patentee to have been using the language of the claim to mean. The principles were summarised by Jacob LJ in Mayne Pharma v Pharmacia Italia  EWCA Civ 137 and refined by Pumfrey J in Halliburton v Smith International  EWHC 1623 (Pat) following their general approval by the House of Lords in Kirin-Amgen v Hoechst Marion Roussel  RPC 9. An abbreviated version of them is as follows:
(i) The first overarching principle is that contained in Article 69 of the European Patent Convention;
(ii) Article 69 says that the extent of protection is determined by the claims. It goes on to say that the description and drawings shall be used to interpret the claims. In short the claims are to be construed in context.
(iii) It follows that the claims are to be construed purposively—the inventor's purpose being ascertained from the description and drawings.
(iv) It further follows that the claims must not be construed as if they stood alone—the drawings and description only being used to resolve any ambiguity. Purpose is vital to the construction of claims.
(v) When ascertaining the inventor's purpose, it must be remembered that he may have several purposes depending on the level of generality of his invention. Typically, for instance, an inventor may have one, generally more than one, specific embodiment as well as a generalised concept. But there is no presumption that the patentee necessarily intended the widest possible meaning consistent with his purpose be given to the words that he used: purpose and meaning are different.
(vi) Thus purpose is not the be-all and end-all. One is still at the end of the day concerned with the meaning of the language used. Hence the other extreme of the Protocol—a mere guideline—is also ruled out by Article 69 itself. It is the terms of the claims which delineate the patentee's territory.
(vii) It follows that if the patentee has included what is obviously a deliberate limitation in his claims, it must have a meaning. One cannot disregard obviously intentional elements.
(vii) It also follows that where a patentee has used a word or phrase which, acontextually, might have a particular meaning (narrow or wide) it does not necessarily have that meaning in context.
(vii) It further follows that there is no general "doctrine of equivalents."
(viii) On the other hand purposive construction can lead to the conclusion that a technically trivial or minor difference between an element of a claim and the corresponding element of the alleged infringement nonetheless falls within the meaning of the element when read purposively. This is not because there is a doctrine of equivalents: it is because that is the fair way to read the claim in context.
(ix) Finally purposive construction leads one to eschew the kind of meticulous verbal analysis which lawyers are too often tempted by their training to indulge.
i) broad band noise; and
ii) indicating device.
Broad band noise
"As an example only of locating sound broadband or white noise in a range between 40Hz and 20kHz may be provided although in one embodiment we prefer to use 40Hz to 16kHz. However, it is not intended that the invention should be limited to these frequencies which are merely provided by way of exemplification, rather any sound of sufficient complexity which enables localisation can be used." (emphasis added)
"The time intervals and the frequencies of said locating and alerting sounds and any intervals there between or therein are not crucial to the working of the invention save only that an individual must be able to locate a preselected device emitting said sounds and be alerted to do so or vice versa."
(p7ln24 – p8 ln3)
"Finally, it is important to distinguish between the disclosure of subject matter and the scope of the claim. Clearly not everything which falls within the scope of the claim is necessarily disclosed …"
1. A device which is adapted to emit either simultaneously and/or successively a locating sound comprising a majority of frequencies in the human hearing range and an alerting sound comprising a minority of frequencies within the human hearing range.
22. A device which is adapted to emit a locating sound comprising a majority of frequencies in the human hearing range at least one of which is selected so as to be amplified or attenuated.
In a preferred embodiment of the invention the said locating sound comprises either broadband noise and/or white noise and/or flat random noise. More preferably selected components of said noise are amplified or attenuated having regard to the properties of a speaker of the device and/or the absorbing properties of the environment in which a listener is located and/or the auditory, either existing or expected, environment of a listener.
iii) Nakagawa/common general knowledge
(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?
Nakagawa / known spoken alarms
The use claims, scope and s60(2)
i) The Ecolarm is a means relating to an essential element of claim 9. It is a vehicle siren which emits broad band noise and is suitable for use as a locating device.
ii) I do not accept that no weight can be put on Mr Hall's evidence. Moreover I do not accept that Mr Hall's evidence only refers to the property that white noise alarms have of sending the sound in a particular direction. It also refers to localisation as part of the directional nature of the alarms.
iii) Many end users are not interested in the localisation property of these alarms. They are only interested in the reduced noise pollution aspect. However some end users are interested in localisation. It is a safety feature. Those customers intend to use the alarms for at least two reasons – reduced noise pollution and localisation.
iv) None of Amber Valley's advertising or marketing materials draw attention or make any reference to the use of the Ecolarm as a locating device. They simply emphasise the other use, as an alarm which makes a sound which produces less noise pollution.
v) Mr Morewood's knowledge can be imputed to Amber Valley. He was sceptical about the locatability of broad band noise alarms. However since the letter before action in this dispute in 4th April 2011 it cannot be seriously argued that Amber Valley does not know that the Ecolarm is suitable for putting the invention of claim 9 into effect in the United Kingdom.
vi) Amber Valley produced the Ecolarm because it was responding to what customers requested. They wanted an alarm which was less intrusive and non-bleeping. It was not clear to me from his testimony whether Mr Morewood meant that the customers had requested a "shush-shush" alarm (given the Brigade product) or whether the idea of a shush shush alarm had come from Amber Valley in response to more general requests. I asked Mr Morewood and he explained it was a bit of both.
vii) As regards knowledge about the intentions of end users (Grimme v Scott) Mr Morewood plainly knows that end users intend to use the Ecolarm as a vehicle siren. Whether that is sufficient I will not decide. Mr Morewood does not know nor intend that end users should themselves intend to use the Ecolarm as a location device. However it is obvious to a reasonable person in Mr Morewood's position that some end users do use the Ecolarm with the motive of taking advantage of its locatable properties.
i) Claims 1 and 6 as proposed to be amended are invalid in that they lack novelty over Haustein. Claims 9 and 14 are novel.
ii) The attacks based on added matter and obviousness are rejected.
iii) I will allow the application to amend insofar as it relates to claims 9 to 16.
iv) The Amber Valley Ecolarm is a product within claim 14.
v) I will not decide the difficult questions arising in relation to the use claim 9 and the allegation of infringement under s60(2).