England and Wales Patents County Court

IN THE PATENTS COUNTY COURT

		Rolls Building 7 Rolls Buildings Fetter Lane London EC4A 1NL
		19/04/2013

Judge Birss :

Topic	Paras
Introduction	1
The witnesses	12
The person skilled in the art	16
Common general knowledge	18
The patent	32
The claims and construction	39
Infringement	64
Added matter	74
Novelty	91
Obviousness	100
Neuhaus	106
Nakagawa/known spoken alarms	113
Haustein	118
The use claim and s60(2)	128
Conclusion	131

Introduction

1. This is a patent action concerning UK Patent No. 2,318,662 entitled "Improvements relating to locating devices". The claimant, Brigade, was first a licensee and then became proprietor of the patent. Brigade and the defendant, Amber Valley, are competitors. They sell vehicle alarms. The Amber Valley product alleged to infringe is called the Ecolarm. It is a vehicle reversing alarm.
2. Before me Brigade were represented by Mr Alan Johnson, a solicitor advocate of Bristows and Amber Valley were represented by Mr Guy Tritton, counsel instructed by Spratt Endicott.
3. Everyone is familiar with the alarms on police cars and ambulances. These alarms make very loud sounds in order to attract attention and warn people that the emergency vehicle is coming. Also familiar today are reversing alarms on large trucks and buses. The familiar reversing alarm makes a bleeping sound to warn people nearby that the vehicle is reversing. All these alarms can be called tonal alarms.
4. The idea on which the invention is based is that it would be an advantage if alarms made a sound which was easy for human beings to locate. In other words they should make a sound which allows a person to determine the direction from which the sound is coming. The problem on which the invention is based is that the sounds used for many traditional alarms are of a character which makes location difficult. So, considering a reversing alarm, the bleeping may be very easy to hear, but a bleeping sound is difficult to locate. The person behind the reversing bus will hear the alarm, realise there is a reversing vehicle somewhere but not appreciate quickly enough where the reversing bus actually is. Accidents can happen.
5. The core idea of the invention is an alarm in which the sound emitted is broad band noise. "Broad band noise" is the term used in the patent claims. The paradigm example of broad band noise is white noise, such as the hissing sound which can be heard on a mistuned radio in between stations. Amber Valley accepts that its Ecolarm emits broad band noise.
6. Experts in psycho-acoustics have known for decades that pure tones were difficult to locate whereas more complex sounds were easier to locate. One of the key elements of more complex sounds is that they contain many more frequencies than a pure tone. Speech and music are examples of complex sounds. They are easier to locate than pure tones. White noise contains all frequencies and is easy to locate. In the 1960s some experiments were conducted on people to test their ability to localise sounds (the Haustein paper). In these experiments the subjects tried to locate the direction in which sounds was coming from loudspeakers emitting white noise.
7. In 1984 a patent application (Nakagawa) published the idea of using a spoken alarm to warn people that a vehicle was turning or reversing. Since 1989 speaking alarms have been used as one kind of vehicle reversing alarm.
8. In 1990 there was a proposal in a patent application (Neuhaus) to use a kind of tonal whooping sound in a vehicle emergency alarm in order to make it easier to locate.
9. Brigade argues that at all times up to and for a while after the priority date in 1995 there was a culture in the alarm industry focussed on using tonal alarms; at the priority date of the patent a vehicle alarm which emitted white noise was a new product.
10. The parties called expert evidence from acoustic engineers with considerable experience. Brigade relied on Dr Geoff Leventhall and Amber Valley relied on Mr Stephen Moore. Neither party criticised the other's expert witness.
11. Brigade contends the patent is valid in amended form and infringed. Amber Valley denies infringement and argues that the patent (even if amended) is invalid. The validity attack is based on added matter as well as lack of novelty and obviousness over the prior art: Haustein, Neuhaus and the known speaking alarms, which were not taken separately from Nakagawa.

The witnesses

12. Dr Leventhall graduated from the University of London with a BSc in Physics in 1950 followed by an MSc and then a PhD in acoustics. He completed his PhD in 1964. After lecturing at Chelsea College and working at WS Atkins, in 1987 he became Professor and Head of the Institute of Environmental Engineering at London South Bank University. In 1992 he left to follow his own interests as a full time consultant. He has provided independent consultancy to Brigade since early 2006.
13. Mr Moore has worked as a consulting engineer in acoustics for 25 years. He has a BSc in mechanical engineering and an MSc in Acoustics from Heriot-Watt University. He is a Chartered Engineer, member of the Institute of Marine Engineers, Scientists and Technicians and a member of the Institute of Acoustics. Today he is a director of the consulting practice MoirHands having previously worked in the Acoustics group at YARD Ltd.
14. Brigade also relied on a witness statement from Mr Stephen Hall, a distributor of Brigade alarms. His evidence was directed to knowledge of the trade and of customers. He was not cross-examined.
15. Amber Valley also relied on the evidence of its managing director Mr David Morewood. He gave evidence about his knowledge and the operation of his equipment. He was cross-examined. He gave his evidence fairly and Mr Johnson did not criticise him.

The person skilled in the art

16. The parties were agreed that the person skilled in the art in this case was an acoustic engineer with a knowledge of electronics.
17. Acoustic engineers were typically trained to degree level in engineering, took one or two modules in acoustics and then worked in one of three places: local authorities dealing with environmental health, industrial noise and noise pollution; private practice consultancy dealing with industrial noise, sound insulation or more specialised matters; or in industry in larger companies usually on noise and vibration control.

Common general knowledge

18. The law as regards common general knowledge was not in dispute. Brigade cited Beloit v Valmet [1997] RPC 489 at pages 494-495, Generics v Daiichi [2009] RPC 4 at paragraph 37 and KCI Licensing v Smith & Nephew [2010] EWHC 1487 (Pat) at paragraphs 105-115.
19. A number of matters of common general knowledge were not in dispute, as follows:

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.

20. The major dispute on common general knowledge relates to what Brigade has called "locatability" of sounds. There is also a point to mention on the culture of the alarm industry.

Locatability of sounds

21. For the purposes of this case the parties agree that the auditory spectrum can be regarded as running from about 20Hz to 20 kHz. Humans tend to be most sensitive to sounds in the frequency range from about 300Hz to 5 - 6kHz.
22. How we identify the direction from which a sound emanates has been studied and known for well over a century. Lord Rayleigh carried out preliminary work on the issue in the 1870s. Humans use a number of different cues to locate sounds. They include differences in the intensity of sound between each ear and differences in the arrival time. Intensity differences are most pronounced at higher frequencies whilst time and phase differences are useful for location at low frequencies. Thus a sound comprising both low and high frequencies allows the listener to use multiple cues for location. Sounds which change their intensity or spectral structure over time allow the listener to use the time of arrival of the transients to provide cues for localisation which are not subject to phase ambiguities. Head movements are also used to help locate sounds and the shape of the pinnae, the fleshy parts of the ears, plays a role, especially at high frequencies. These considerations explain why, as a matter of fact, the locatability of pure continuous tones is low whereas the locatability of complex sounds and white noise is much higher.
23. At this point I should explain white noise. The term has a narrow precise meaning and a looser, broader meaning. To be precise white noise means random noise with a frequency band covering the whole auditory spectrum and with the same power level across the whole spectrum. When used with precision the term white noise may be distinguished from other "colours" of noise such as pink noise, in which the power level drops across the frequency spectrum. On the other hand the term "white noise" is also used in a looser sense to refer more generally to any random noise with a fairly wide frequency spectrum. In this action the term "white noise" was used in its looser sense and that is the sense in which it is used in this judgment. For the reasons I give below I have decided that the term broad band noise used in the claim can be equated with the loose definition of white noise.
24. Brigade accepts that some very skilled persons were aware of locatability as a property of broad band noise but does not accept that this knowledge formed part of the common general knowledge of the relevant skilled person. Amber Valley contends to the contrary. Its case is that the skilled person knew that broad band noise comprised substantially all the frequencies in a given band (and therefore was an example of a complex sound) and that the skilled person also knew that complex sounds were easier for humans to locate.
25. Both experts gave evidence about the content of acoustics courses and acoustics textbooks.
26. Some confusion was caused by the manner in which Dr Leventhall's first report had been written but his overall position was clear. He thought that the idea that broad band noise was easy to locate, was only something known to highly skilled persons who were not representative of the person skilled in the art. Mr Tritton referred to this as a volte face by Dr Leventhall. I do not accept that. It is true that Dr Leventhall's report was not carefully drafted in this respect but in my judgment his actual opinion did not change.
27. Mr Moore on the other hand thought this idea was common general knowledge. Mr Moore referred to lecture notes for an MSc course in acoustics given at Heriot-Watt University before the priority date. The core module was called "basic acoustics". One of the questions posed was "What are the advantages of having two ears?", to which part of the answer is and was – in order to locate the direction from which a sound is coming. Various fairly lengthy extracts from books had been provided by the lecturer. The extracts included a part on auditory localisation which stated that pure tones are most difficult to localise whereas localisation is good for complex periodic sounds, clicks and bands of noise (especially if wide).
28. Considering the evidence of the two experts, I believe the factual position at the priority date in 1995 is tolerably clear. The superior locatability of white noise, both in its strict and its looser sense, is and was part of the whole body of knowledge comprised in the field of acoustics. It has been understood for a very long time. It is addressed in some, but not all, basic textbooks. However in 1995 it was a piece of information with little day to day relevance to most acoustic engineers working in practice. I suspect if you had cross-questioned an acoustic engineer about the location of sounds by humans in 1995 they would all have agreed that they knew perfectly well that humans use their "binaural capability" (i.e. two ears) to locate sounds. They would all have known that pure tones were not easy to locate and that more complex sounds, with more frequencies, were easier to locate. They would also know very well that broad band noise was an example of a complex sound. If it was put to them that broad band noise was a sound which was easy to locate, some would see that that was probably true but say that they had not considered it before and others might say that they remembered that from studying at University but had forgotten it. Only those with a particular interest in psychology or psycho-acoustics would say that they were well aware of it and did not need to be reminded.
29. A phrase used in the cases considering common general knowledge is whether a fact was "generally regarded as a good basis for further action by the bulk of those engaged in the art". I do not think the idea that broad band noise was easy to locate was regarded by many acoustic engineers as a basis for action at all. It was a fact which most will have been taught at one time but few will have had any need to remember or apply. In my judgment that fact was not common general knowledge.

Alarm Culture

30. A point which is convenient to address in the context of common general knowledge is the culture of the alarm industry in 1995. Dr Leventhall's evidence was that the culture of alarms was firmly rooted in tonal systems and remained that way until the early 2000s. Mr Moore had not dealt with alarm manufacturers at the time and did not disagree. There was a point that vehicle speaking alarms had been introduced in 1989 and were part of the common general knowledge by 1995 but I did not understand Dr Leventhall to accept that these speaking alarms had made a difference to the alarm culture he had identified.
31. In my judgment there was in 1995 a culture in the alarm industry which was firmly rooted in tonal alarms. The fact that some speaking alarms had been introduced had not made an impact on the culture at that time.

The patent

32. The patent begins by stating that the invention relates to signal patterns for use in locating devices; locating devices; and systems incorporating locating devices. The contexts in which the systems incorporating locating devices can be used are described broadly. They include buildings and vehicles.
33. The patent was based on a divisional application from an earlier parent case which was granted as GB 2 303 235. The description includes a number of cross-references to the parent patent. The first cross-reference is near the start of the description at p2 ln4. It explains that the parent case claims the invention in combination with an alerting sound.
34. From p2 ln10 the description describes the need to direct individuals to a predetermined location in some circumstances such as an emergency. For example when there is a chemical leak it may be necessary first to alert people to the potential danger and then ensure they can reach a safe environment. The visual exit signs may be obscured by smoke. Similar drawbacks with the sirens of emergency vehicles are described. People have learned to recognise the sound patterns of vehicle sirens but the patent explains "it is not true to say that individuals can easily locate such vehicles".
35. The description then states:

"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."

36. The object of the invention is therefore to provide an alarm (or other device) which enables an individual to locate a given object and take appropriate action (p4ln24) and "according to a first aspect of the invention, there is provided a use of a device which is adapted to emit broad band noise as a locating device" (p5 top paragraph). From this point until p15 ln15, the description includes a series of statements, some of which are said to be further aspects of the invention and some start with the word "preferably". Some of them cross-refer to the parent case. This section contains some quite broad statements and some very narrow ones. It is not always clear whether the text is referring to something in the parent case or not.
37. At p15 ln15 the description of various examples begins. These examples all involve using an "alerting sound" and a "locating sound" as well. For example figures 1 and 2 show an alerting pulse of sound (fig 1) and a noise pulse (fig 2) which is a locating sound. An example of the alerting sound is a burst comprising a fundamental frequency with three or four harmonics of the fundamental frequency. The locating sound (fig 2) is a burst of 190ms of white noise. I suspect in this example the patent is using the term white noise in a more strict sense and the term broad band noise in a broader sense but nothing turns on that.
38. The description of the examples ends at p22 ln15 and is followed by some more general discussion, which includes a list of advantageous properties from p23 to p25. It is plain that all of these advantages are not supposed to apply to every embodiment of the invention.

The claims and construction

39. In their form as granted the relevant claims are claims 1 and 6, as follows:

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.

40. Brigade has unconditionally applied to amend these claims in the form set out below. Brigade does not contend that the unamended claims are valid. In their amended form each claim as granted (there were 8) has been split into two claims, so there would be 16 claims as amended. New claims 1 to 8 correspond to granted claims 1 to 8 with the addition of the requirement that the device is an "indicating" device. New claims 9 to 16 also correspond to granted claims 1 to 8 but with a limitation to a vehicle siren. The relevant claims as proposed to be amended are:

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 device which 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.

41. Amber Valley did not oppose the allowability of amendments as such. In other words no point on clarity, support, added matter or extension of protection was said to arise from the amendments themselves. Amber Valley's case is that the claims as amended are invalid. I will address that below. The Comptroller considered the amendments and in a letter on 3^rd August 2012 indicated that he had no comments and did not wish to be represented. In my judgment the amendments are allowable amendments and, subject to the question of whether the claims as amended are valid, I would allow the amendments.
42. The leading authority on the construction of patent claims is Kirin-Amgen v TKT [2004] UKHL 46. The key point is that construction is concerned with what a skilled person would understand the author to be using the words to mean. The claims are not construed alone or in the abstract but in their context in the specification; purposive construction is vital and in the end one is concerned with the meaning of the language used.
43. Mr Johnson emphasised aspects of the "practical working guide" which had been set out by Jacob LJ in the Court of Appeal in Mayne Pharma v Pharmacia Italia [2005] EWCA Civ 137. The modern statement of this practical working guide was set out by the Court of Appeal in Virgin Atlantic v Premium Aircraft [2010] FSR 10 at paragraph 5 as follows:

5. One might have thought there was nothing more to say on this topic after Kirin-Amgen v Hoechst Marion Roussel [2005] 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:

[182] 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 [2005] EWCA Civ 137 and refined by Pumfrey J in Halliburton v Smith International [2005] EWHC 1623 (Pat) following their general approval by the House of Lords in Kirin-Amgen v Hoechst Marion Roussel [2005] 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.

44. The particular elements emphasised by Mr Johnson are the last sentence of item (v) and the whole of item (vi). Their relevance will emerge below.
45. The points arising on construction of the words in the claim are:

i) broad band noise; and

ii) indicating device.

46. There is also a debate about the ambit of the term "signal generating means" but that is best addressed in the context of the infringement case.
47. A further point arose on the use claims, in relation to their scope and what was required to infringe them. However for reasons which appear below I did not find it necessary to get into that question. I have touched on the issues arising in relation to the use claims separately at the end of this judgment.

Broad band noise

48. Granted claim 1 refers to broad band noise and granted claim 6 to broad band noise covering a majority of frequencies in the human hearing range. The parties agreed that the frequencies in the human hearing range were from 20Hz to 20kHz. The debate concerned the scope of the term broad band noise.
49. In closing Mr Tritton suggested the expression was not a term of art, the implication being that the experts' views were therefore inadmissible. I do not accept that. The term broad band noise (or broadband noise) is a technical expression which is used in the field and about which the expert's evidence was admissible and helpful.
50. Dr Leventhall explained that there were various expressions which could all be taken to mean the same thing. In addition to broad band noise, the terms were "broad band sound", "broadband sound", "white sound" and "white noise". In this context "white noise" is used in its looser sense. Dr Leventhall's preferred term was "broadband sound", abbreviated to BBS.
51. Dr Leventhall distinguished "broadband sound" from "a broad band of sound". The latter phrase could cover a case in which there were only two separated frequencies although there would normally be a number of frequencies in the band of sound, whereas broad band sound, although it also has upper and lower frequencies, has sound energy at all or substantially all frequencies within its band. Broad band noise can be distinguished from narrow band noise in that the upper and lower frequencies in narrow band are much closer together.
52. Mr Moore also did not draw a distinction between broad band noise or broad band sound/BBS. He did think that broad band noise could have a somewhat broader meaning than Dr Leventhall, emphasising that broadband noise could have any spectral shape and pointing out that it is not just the frequency content but also the amplitudes at different frequencies that contribute to the ability to locate a sound. He also explained that it did not need to be "time invariant", in other words the spectrum of broad band noise could change over time.
53. Nevertheless this difference between Mr Moore and Dr Leventhall was really only a matter of emphasis. Dr Leventhall was not saying that broad band noise had to be white noise in the strict sense and neither was Mr Moore. Mr Moore clearly did not think that "broad band noise", as that term was used by skilled people, also included complex tonal sounds. That was clear for example from a paragraph of his first report which dealt with some research carried out after the Manchester air disaster (which is addressed below) and also from his views about the Neuhaus prior art.
54. I conclude that the expressions broad band noise, broadband noise, broad band sound, broadband sound and BBS are terms which are used by skilled persons, for example in various text books and papers. They have a well understood meaning and they mean the same thing. Broad band noise has upper and lower frequencies and has sound energy at all (or substantially all) frequencies within its band. When used in its loose sense, the term white noise means the same thing. Tonal sounds, even complex tonal sounds, are not broad band noise.
55. Another kind of sound which falls to be considered is human speech. Human speech includes a variety of different sounds with different characteristics. For example vowels are made up of relatively low frequency components and are tonal in nature while some consonants such as "f", "sh" and "th" have higher frequency components and are made of bands of frequencies, similar to noise, which are not tonal in nature. However although in a sense speech, provided it includes the right consonants, could be said to include bursts of noise, no skilled person would naturally refer to speech as "broad band noise". Moreover the fact that when a long term average is taken it can be shown that speech comprises all the frequencies in a wide band, just as in broad band noise, does not alter this conclusion.
56. So far I have not considered the usage of the term in the patent. Amber Valley's case was that when read in the context of the specification of the patent, the skilled person would understand the patentee to have used the expression broad band noise in the claims to have an even wider meaning. Two particular passages in the specification were relied on. These are:

"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)

(p9ln9-14)

and

"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)

57. Mr Moore's view was that this showed that the patentee did not mean to refer to a very specific type of sound (e.g. a sound that emits frequencies in all parts of a range) but merely one which permits location. On this basis he thought, and Amber Valley submits, that the scope of the claims included any complex sounds provided they permit localisation. Amber Valley's argument would mean that speech and complex tonal sounds would be within the ambit of the claims. Amber Valley also suggests that Dr Leventhall's opinion about the meaning of the term had not taken the patent specification into account, but Dr Leventhall did not accept that when it was put to him in cross-examination. Amber Valley also submits that the specification is based on drawing a distinction between any complex localisable sound and the poor localisation of pure tones or polytone signals comprising a few frequencies.
58. Mr Tritton also pointed out that claim 2 of the patent (as granted), by referring to a device which emitted the frequencies comprising said broad band noise "simultaneously", necessarily would show the skilled reader that claim 1 did not require the frequencies to be emitted simultaneously. So claim 1 was wider and might for example cover speech since that does emit a wide band of frequencies albeit not simultaneously.
59. Mr Johnson submitted that Amber Valley's approach to this issue was wrong in principle in that it sought to elevate purpose too high and neglected the clear words of the claim. The clear words of the claim limited their scope to broad band noise as that term would be understood by a skilled person and there was no reason to read the claim more broadly.
60. I prefer Mr Johnson's submission. The skilled reader of the specification as a whole would not think the patentee was seeking to use the term "broad band noise" in any wider sense that the sense in which the skilled person already understood it. I do not accept that there is any principle that dependent claims like claim 2 must necessarily have a narrower meaning than claims from which they depend so as to force a strained wider construction on claims higher up the hierarchy. It is true that the specification recognises that complex sounds which do not fall within the ambit of broadband noise are capable of enabling localisation but nowhere does the specification indicate that the term "broad band noise" itself should be understood in a wider sense. When the claims are read in context, it is clear that the patentee is limiting the scope of what is claimed to broad band noise and is not seeking to claim any sound capable of localisation. It would be speculation on the part of the skilled reader as to why that is so. One might imagine a reason could be in order to define the claim using relatively clear concrete terms rather than using an open ended and potentially subjective functional definition. However the skilled reader would not need to speculate about the patentee's motives since the words used in the claim are clear. The words used are broad band noise.
61. The parties and the witnesses used the terminology broad band noise, broad band sound, and white noise etc. on different occasions and in various ways albeit not always seeking to draw a distinction. In this judgment I have tried to use the term broad band noise to refer to what is claimed, since those are the words of the claim. When referring to the evidence or the argument I have tried to use whatever expression the witness or advocate used in the particular context.

Indicating device

62. This term was sought to be added by amendment. It appears in the first paragraph of the specification in the phrase "indicating devices such as audible warning devices or sirens and, particularly but not exclusively, vehicle sirens, or monitors such as security monitors." Brigade submits that the term means a device which must point out, make known or direct attention to itself. The point of the amendment was to distinguish over the Haustein prior art which, it was said, did not disclose an indicating device.
63. Amber Valley does not really dispute this interpretation of "indicating device" but does not agree that it draws a distinction over Haustein. I will deal with that below.

Infringement

64. Amber Valley sells four alarms under the label "Ecolarm". They are products number AVRWN01, AVRWN02, AVRWN03 and AVRWN04. There is no relevant distinction between them. Each alarm is a vehicle reversing alarm which has a speaker and an electronic circuit. The circuit includes a chip on which is stored a sound which the device plays through its speaker to produce an alarm when the vehicle is reversing.
65. Amber Valley admitted that the sound emitted is broad band noise and that it covers the majority of frequencies in the human hearing range. Nevertheless it is important to properly characterise the sound produced by the Ecolarm because the point was part of an issue which arose about claim 6 as granted (claims 6 and 14 as amended). These claims are limited to a "signal generating means". Brigade submitted that this was a broad term. Amber Valley contended that it did not include a device, like their Ecolarm, which recorded and re-played human speech.
66. The argument has two elements. Is it fair to call the sound emitted by the Ecolarm "human speech" and does a device which stores and plays the sound fall within the ambit of "signal generating means"?
67. On the first point Amber Valley contended that the sound emitted is "human speech" and call it a "shush - shush sound". However a recording was available and to my ear the sound made by the Ecolarm does not sound simply like a person saying "shh". Before trial Amber Valley demonstrated to Dr Leventhall how the sound which the alarm produces was created. Mr Morewood placed his mouth against the microphone, took a deep breath and made two "shh" sounds. Dr Leventhall explained that the air expelled by Mr Morewood's lungs will have impacted on the microphone diaphragm. The sound actually produced by the Ecolarm has undergone considerable distortion. Dr Leventhall analysed the frequency spectrum of the sound produced by the Ecolarm and expressed the view that the Ecolarm was neither a voice alarm nor a speech alarm but produced broadband sound. Amber Valley did not dispute Dr Leventhall's tests and as I have recorded above, admitted that the sound was broad band noise. In my judgment it is not a fair characterisation to describe the sound made by the Ecolarm as a voice or as human speech.
68. The second point on "signal generating means" is whether a device which plays a recording of the relevant sound falls within the claim.
69. Amber Valley referred to claim 8 as granted which claimed a signal storage means and argued that since Brigade had not alleged infringement of that claim, it must be on the basis that the claim was outside the scope of claim 6. This latter submission was not a fair point. Brigade had made clear that given that this case was proceeding in the Patents County Court, in order to limit the issues it had not advanced a case of infringement of claims other than claims 1 and 6 as granted (1, 6, 9 and 14 as amended) but it did not accept that those claims were not infringed.
70. In any event I do not accept that the presence of claim 8 in the patent means that claims 6 and 8 should be read as excluding one another. There is no reason why the ambit of the two expressions "signal generating means" and "signal storage means" should not overlap.
71. In my judgment "signal generating means" would be understood simply to mean any means for generating a signal. It does not matter how that is done. The fact that the signal which is generated is produced by playing a recording stored on a chip does not matter. I find that the Ecolarm is or comprises a signal generating means.
72. There is no dispute that the Ecolarm is an indicating device (claims 1 and 6 as amended) and no dispute it is a vehicle siren (claims 9 and 14 as amended). Thus the Ecolarm is a product according to the relevant product claims 6 and 14.
73. The advertising material for Ecolarm describes the alarm as environmentally friendly and ideal for built up areas where noise pollution may be an issue. This is a reference to the fact that broad band noise, for a given power level, does not tend to penetrate as far as other tonal sounds. Moreover since loudspeakers have a directional quality which is more pronounced as the frequency increases, the higher frequency components of the sound are generally directed in a particular direction by such an alarm. This aspect of the Ecolarm is not relevant to whether or not the sound emitted is properly to be called broad band noise but the point has relevance to the question of infringement of the use claims (claims 1 and 9 as amended) which is addressed separately below.

Added matter

74. Amber Valley contends that the patent contains added matter as compared to the application for the patent as filed, contrary to s72(1)(d) of the Patents Act 1977 (cf. Art 123(2) EPC). The Court of Appeal pulled together the general principles relating to added matter in European Central Bank v Document Security Systems [2008] EWCA Civ 192 at paragraphs 11 and 12, approving Kitchin J's summary in the same case at first instance in paragraphs 96 to 102. I will not set it out. A point mentioned in the judgment is to guard against hindsight in the analysis. I will bear that particularly in mind.
75. The patent in this case is a divisional. It is common ground that to assess the relevant objection here it is only necessary to compare the parent application with the granted patent.
76. The added matter objection is as follows. Amber Valley argues that the principal claim in the parent application was for a device which emitted an alerting sound comprising a minority of frequencies and a locating sound (such as broad band noise). The parent application also referred in claim 22 to a locating device which emitted a locating sound but was limited to a case in which at least one of the frequencies emitted is selected so as to be amplified or attenuated. Thus the skilled person reading the parent application would not derive (to the relevant standard to satisfy the law) that the parent application was disclosing a locating device solus which emitted broad band noise save where at least one frequency was amplified or attenuated. By contrast the granted patent is radically different. It refers to the first aspect of the invention being the use of a device which is adapted to emit broad band noise as a locating device. The text in the relevant pages of the description as granted is not to be found in the parent application. The main claims as granted seek to claim an invention relating to the provision of a locating sound solus which does not require the amplification or attenuation of one of more frequencies. This is not disclosed either expressly or implicitly in the parent application. So Amber Valley submits the patent contains added matter.
77. Another way of putting the same argument is this. Whereas the patent discloses and claims the idea of a locating device which simply emits broad band noise, the parent application never discloses such a thing. The broadest disclosures in the parent application are either the combination of a locating sound plus a tonal alerting sound or else, if a locating sound it is be used without a tonal alerting sound, the broadest idea disclosed requires the amplification or attenuation of one of more frequencies within the band.
78. Brigade's answers to this attack are as follows. It submits there is nothing new in the patent as compared to the parent application except newly formulated claims, which do not require the emission of a separate and different alerting sound. The emission of a locating broad band noise is at least implicitly disclosed in the parent application. Moreover Brigade relies on AC Edwards v Acme [1992] RPC 131 and the line of authority following from it and argues that all that has happened is that the claims have been broadened as compared to the parent application. The fact the claims cover a device does not matter, because there is no description in the granted patent of a device which does not emit an alerting sound and the fact that the claims cover such a device does not mean it is disclosed. Finally Brigade submits that if the patent does disclose such a device, so too does the parent application when one considers claim 22 with the passage on p4 ln7-12.
79. Mr Tritton argued that AC Edwards v Acme was a very different case on its facts from the case here. That is so but the principle set out by the Court of Appeal in that case is a well established part of the English approach to added matter. The case was followed in Napp v ratiopharm [2009] EWCA Civ 252 and Gedeon Richter v Bayer Pharma [2012] EWCA Civ 235 at paragraph 17. In the latter case the joint judgment of Kitchin LJ and Sir Robin Jacob cited a passage in Napp, which in turn cited AC Edwards, and they explained:

"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 …"

80. Mr Tritton produced a table comparing the text of the parent application and the patent. In places there have been no changes or no significant changes at all. The first paragraphs are identical from p1 to p5 ln1 save that a new paragraph has been inserted in the granted patent which is a reference to the parent. Nothing turns on that. The consistory clauses in the patent which are set out at p5 and correspond to the main claims are new. Amber Valley describes them as "radically different". There has been some modified wording and movement in and of the text which appears in the patent from p6 ln9 to p8 ln8 but nothing major turns on it. The remainder of the description from page 8 on to page 25 is the same. In the patent this section has a number of cross-references to the parent application. This section deals to a large extent with the alerting sound. Mr Tritton submitted that the constant cross-referencing to the parent showed that this section was wholly irrelevant to the patent.
81. Neither expert addressed the issue of added matter in their report because the order for directions made at the CMC (Floyd J) limited the experts evidence to technical issues on infringement, common general knowledge and obviousness. Nevertheless Mr Johnson put an unspecific question to Mr Moore in cross-examination which was designed to establish that no new information was provided in the patent as compared to the application. Although Mr Moore agreed with the question, I did not find that exchange helpful.
82. I will start with the disclosure of the parent application.
83. The broadest claims in the parent application are the first and last claims, 1 and 22:

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.

84. I will refer to the thing in claim 1 as the alert sound combination idea and to claim 22 as the amplified/attenuated sound idea. All the other claims (2 to 21) have the same limitations as in claim 1, referring to the alert sound combination idea. Consideration of the claims in the parent application therefore assists Amber Valley. If there is a broader disclosure it must be found in the description itself.
85. The detailed examples in the parent application always describe an arrangement based on the alert sound combination idea, with an alert signal burst followed by a locating signal burst. For example although figure 2 depicts a locating audio signal burst of white noise and as drawn does not show an alerting signal on the same plot, the text only ever describes it in combination with an alert signal. So for example the passage bridging p15 and 16 of the parent application refers to the locating signal burst of fig 2 as intended to allow location of a sound generator which generator is emitting the sound shown in figure 3 (i.e. a sound with an alerting signal). Searching in the examples for a disclosure of a device which does nothing other than emit a broad band noise locating sound is not a profitable exercise.
86. An important principle is that the document has to be considered as a whole and that an implicit disclosure is sufficient provided it is directly and unambiguously derivable from the document, without hindsight. Brigade refers to the passage on p4 ln 7-12. This states:

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.

87. This passage is important because it expressly teaches the skilled reader that the amplified/attenuated sound idea is an example of a broader idea, namely to use simply broadband noise (or white noise etc.) as the locating sound. Thus when the skilled person reads passages referring expressly to the amplified/attenuated sound idea (e.g. p6 ln 4-10 and for that matter claim 22), that is always in a context in which the reader knows that the inventor sees it as an example of a broader idea, namely the use of broadband noise itself. It is true that the passage at p4 quoted above refers to "said" locating sound and one could say that that takes the reader back to the alert sound combination idea but that does not undermine the force of the point. The amplified/attenuated sound idea clearly does not require the use of an alerting sound.
88. I believe a fair way to read the application as a whole is that the essential idea being disclosed is of a locating device. That is clear from the first paragraph. Moreover a device is a locating device because it emits a locating sound. The locating sound in the application is any sound comprising the majority of frequencies in the human hearing range and the paradigm example of that is broad band noise. Both the alert sound combination idea and the amplified/attenuated sound idea are examples of the application of the same essential concept. The essential concept is the idea of a device emitting a locating sound comprising the majority of frequencies in the human hearing range. The reader of the application, who read it without having had the added matter point explained to them first, would think the document contained a disclosure of the essential concept I have described. When the added matter argument is pointed out, the reader would go back to the document and see that the essential concept I have described is not spelled out laboriously in words anywhere but the existence of an express disclosure is not the test for added matter. In my judgment the idea of a device emitting a locating sound comprising the majority of frequencies in the human hearing range would be directly and unambiguously derived from the parent application as a whole by a person skilled in the art. On that basis there can be no added matter. There is no suggestion that the limitation to broad band noise from that disclosure was unwarranted.
89. The test for added matter has been described as a strict one and so it is in the sense that any relevant matter disclosed in the patent must be disclosed in the application at least implicitly. However the prohibition against adding matter is not a prohibition against claim broadening, which has undoubtedly happened in this case. Legal security for third parties is an important consideration (see the EPO Enlarged Board case G1/93 and also European Central Bank paragraph 12, para 101 of the quoted section) but that does not mean that third parties have any basis to assume that the claims which are granted will necessarily always be narrower than the broadest claim in the application. Indeed section 69(2)(b) of the 1977 Act presupposes that a granted claim may be broader in scope than the claims of an application. I do not believe the legal security of any third party is unfairly affected in this case. At most a third party who read the parent application might conclude that the draughtsman has not claimed as broadly as they could have done. The idea of the use of a device emitting broad band noise as a locating sound is fundamental to the whole application. The fact that the claims in the application do not claim such a device per se does not alter that.
90. I have considered whether, if this conclusion is wrong, Brigade's argument based on a broader claim but not a broader disclosure would succeed. In my judgment it would not. It is true that the examples have not changed as between the parent application and the patent but it is hard to see how the clauses on p5 of the patent could be read as only claiming but not disclosing a device which emits broad band noise as a locating device and has no alerting sound. True it is that words like "and no alerting sound" are not present on p5 but a fair reading of those pages seems to me to amount to a teaching to make a device which simply emits broad band noise as a locating sound. If such an idea was not disclosed in the parent application then I believe that idea would have been added matter.

Novelty

91. Amber Valley relies on three items of prior art and argues in each case that the invention lacks novelty and/or is obvious. The three items of prior art are:

i) Haustein

ii) Neuhaus

iii) Nakagawa/common general knowledge

92. I can deal with novelty quite shortly.
93. The Haustein reference is a scientific paper published in about 1970 by a group working in the Information Technology Section of the Technical University of Dresden. The authors are Dr B. G. Haustein and Dr W. Schirmer. The paper is entitled "Meßeinrichtung zur Untersuchung des Richtungslokalisationsvermögens" or "Measuring Instrument for Investigation of Direction Localization Ability". The work was directed to the diagnosis of central hearing perception disorders.
94. In the tests a white noise signal was produced in pulses from a loudspeaker. (The term white noise is probably used in its narrow sense but nothing turns on that.) The subject would sit in the middle of the room with their eyes closed by opaque spectacles and was able to use a crank handle to move the loudspeaker emitting the white noise in a circle around them. In one kind of test the subject was required to move the speaker so that the sound was emitted from the "front", "rear", "right hand side" or "left hand side". In the other kind of tests the subject had to move the movable speaker and align it with one of 8 fixed speakers set in a circle around the subject. In this second kind of test both the movable speaker and one of the fixed speakers emitted alternating noise pulses.
95. It is manifest that Haustein discloses a device which emits white noise and which is used as a locating device. Thus claims 1 and 6 as granted would lack novelty. Brigade submitted that claims 1 and 6 as amended were novel because the Haustein device was not an "indicating device". I disagree. "Indicating device" is a broad expression. The loudspeakers in Haustein emit white noise in order to indicate where they are. The device is an indicating device and I find that claims 1 and 6 as amended lack novelty over Haustein.
96. Amber Valley did not suggest that claims 9 or 14 as amended, which are limited to a vehicle siren, were anticipated by Haustein.
97. Neuhaus (WO 90/11585) is a patent application published in 1990. It discloses an emergency vehicle audible warning system. One of the purposes of the system described in Neuhaus is to provide locatability cues and the application teaches the use of a sound which is intended to enhance the ability of an observer to determine the direction of the sound source. The sound which is taught is a complex sound which is rich in harmonics and contains a wide band of high frequency sounds. Mr Moore's clear evidence was that Neuhaus did not teach specifically the use of a broad band sound. Nevertheless Mr Tritton argued that the sound which Neuhaus disclosed did fall within the claims on the extended meaning of broad band noise which he contended for when the claims were read in the context of the specification. He supported this by the cross-examination of Dr Leventhall. In cross-examination he put to Dr Leventhall that the sound produced in Neuhaus was made up of a fundamental frequency and a number of harmonics. The fundamental swept from one frequency of about 1kHz up to another at double the frequency in a period of 0.6 seconds. This sweeping, coupled with the modulation of the harmonic frequencies, meant that within the 0.6s period all audible frequencies from about 1kHz up to about 10kHz were transmitted, albeit not at the very same instant. Mr Tritton suggested that that this was, for the purposes of locatability, practically the same as broad band noise. Although Dr Leventhall's did not accept that, he was not suggesting that the difference in terms of localisation was very large. Mr Moore's view, expressed in re-examination was that the sound described here would be as good as broad band sound for localisation.
98. I have rejected Amber Valley's argument on the construction of broad band noise and with it the novelty case over Neuhaus must fail. The fact that the sweeping tonal sound may cover all frequencies in a band over a period of 0.6 seconds does not make the sound broad band noise, even if it is as good for localisation (which Mr Moore thought and Dr Leventhall did not accept). Although Neuhaus discloses vehicle sirens which emit complex locating sounds, the claims are all novel because the sounds taught are not broad band noise.
99. Nakagawa (JP 59102634, published in 1984) discloses a vehicle alarm which uses human speech to warn when the vehicle is turning left or right or reversing. The point of the speech is that it provides a better warning than a buzzer. Nakagawa is not concerned with localisation. Since it was common ground that vehicle reversing alarms were common general knowledge, it did not prove necessary to consider the specification of Nakagawa in any detail. Nakagawa and the known spoken vehicle alarms could only deprive the claims of novelty if speech falls within the term broad band noise in the claims. That in turn depends on the wider meaning of the claims contended for by Amber Valley which I have rejected. On the interpretation of broad band noise which I have determined above, the claims are novel over Nakagawa and known spoken reversing alarms.

Obviousness

100. The structured approach to the assessment of obviousness was set out by the Court of Appeal 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. The person skilled in the art and the common general knowledge have been addressed above. The inventive concept relevant to claims 9 and 14 is the use of a vehicle siren which emits broad band noise as a locating sound.
102. Before dealing with the cited prior art I need to refer to a general point relied on by Brigade. It relates to some work which was done following the Manchester air disaster of 1985. In the 1990s, following the tragedy in which passengers died in a fire in an aeroplane because they could not escape in time, studies were done to see if a locatable audible alarm could help passengers in a smoke filled fuselage locate the exit. Given the nature of the problem and the tragic circumstances, the group who carried out the study were highly skilled in acoustics. The results were published in 1992. Various sounds were tried as locatable alarm sounds but not broad band noise. The experimenters actually had a source of broad band noise available to them because they used pink noise to test the loudspeakers. However they did not test broad band noise as the locatable sound. After the priority date the inventor of the Brigade patent, Deborah Withington became involved. A paper was published in 2004 by Mike Lower and others. The 2004 paper shows that ten sounds were tested, including white noise (in the narrow sense). The white noise was the most accurately localised sound overall. The next best sound, with localisable properties very similar to white noise, was a complex tonal sound. That complex tonal sound had 80 components at various intervals between 200 Hz and 8030 Hz. The authors described these two sounds as very different. The complex tonal sound was advantageous for reasons other than localisation because it was recognisable as an evacuation or warning signal and easier to detect over background noise.
103. So Brigade contended that this episode supported the case that the invention was not obvious. Amber Valley emphasised that the 2004 paper found the localisable properties of the complex tonal sound to be very similar to white noise and that the paper ultimately preferred the complex tonal sound for other reasons.
104. The conclusions I draw from the tests following Manchester air disaster are the following. The fact that the 2004 paper found that a complex tonal sound was more useful than white noise overall was for reasons other than localisation. This shows that localisation is not the only factor of importance in a given situation but it does not undermine the point Brigade seeks to make when looking at this work overall. The group clearly did not think that white noise was not even worth trying, since they tested white noise in the later round of tests. Thus the fact that another sound may be better in the particular aircraft context does not explain why the group did not in 1992 even try white noise. The natural explanation is that in 1992 they did not think of trying white noise or any other kind of broad band noise as a locating sound, despite have an available source, because it was not obvious. This supports the argument that in the absence of a specific prompt which relates to the localisation of broad band noise, skilled people would not have thought of using broad band noise as a locating sound.
105. I can now turn to the prior art.

Neuhaus

106. Neuhaus discloses a vehicle siren which emits a complex sound as a locating sound. The difference between this and the claims is that the sound is not broad band noise.
107. Mr Tritton submitted the claims were obvious over Neuhaus. He argued that Neuhaus teaches that a wide band of frequencies is good for localisation. Given that the purpose of Neuhaus was to improve localisability of vehicle sirens and given the teaching to use a wide band of frequencies, it was a very obvious step to use broad band sound because it gives good localisation and covers a wide band of frequencies. He also argued that there was no "quantum jump" from complex sound to white noise, by which he meant that there was a continuum whereby, as the number of frequencies increases, the localisation improves. Finally he submitted there was no unexpected advantage of broad band noise as compared to the sound used in Neuhaus.
108. In cross-examination Dr Leventhall was asked about the relative localisability of the sound in Neuhaus and white noise. Dr Leventhall thought that white noise would be able to be localised more quickly than the sound in Neuhaus. However I was not persuaded that these time differences were significant, despite an argument about the distance a vehicle could travel in these short times if it was reversing at normal speeds. For one thing if one is to do a fair comparison, the fact that the sound in Neuhaus will readily attract the attention of a person as a warning sound, whereas the same person may well take longer to realise that broad band noise is a warning at all, has to be taken in account.
109. A small point arose on one answer Dr Leventhall gave in cross-examination. On the transcript it reads as if he is saying "yes" to the proposition that the invention was obvious over Neuhaus but that is not what Dr Leventhall meant. In his answer he referred to the inventor Deborah Withington, a Professor of Auditory Neuroscience, and was intended to emphasise his disagreement with the proposition that it was obvious, by saying that the invention required someone of Prof Withington's very high level of insight to be conceived.
110. Mr Moore's view was that Neuhaus taught the desirability of locatable alarms and the use of high and broad frequency components. He thought that the Neuhaus sound would not be significantly less locatable than broad band sounds and that the reason Neuhaus did not refer to broad band sounds was because for an emergency vehicle, as opposed to a reversing lorry, a broad band sound would not be appropriate because of its lack of penetration. For local penetration a broad band sound would be appropriate and so switching the sound to broad band sound was obvious.
111. In my judgment the critical point is the alarm culture. It was focussed on tonal alarms. The reasons why the culture was focussed in that way may have included, amongst other things, the issue of penetration but that does not undermine the fact that the culture existed and was focussed on tonal alarms. When looked at in that light the disclosure of Neuhaus makes sense. It teaches a tonal form of alarm, albeit one with superior localisability as compared to pure tones. A skilled person reading Neuhaus might well think about optimising the localisability of the alarm by testing sounds different from the particular bell like or whooping sound taught in the document but the uninventive skilled person doing this would seek to use sounds of the same character as disclosed in Neuhaus. The sounds would be complex sounds with many frequency components in order to enhance localisation but they would be tonal in nature.
112. Although broad band noise may not be significantly different in terms of its localisability, nevertheless to a skilled person such a sound is a very different kind of sound from the sound taught by Neuhaus. The studies following the Manchester air disaster indicate that a skilled person looking to enhance localisation would not consider using broad band noise without a specific prompt. There is no prompt in Neuhaus or in the common general knowledge. In my judgment claims 9 and 14 are not obvious over Neuhaus.

Nakagawa / known spoken alarms

113. The obviousness argument over Nakagawa and the common general knowledge spoken alarms is the same for each.
114. Mr Moore explained that as a matter of fact speech is a complex sound and is capable of providing locatability. He thought that the invention was obvious over these spoken alarms. His key reason for this view was his opinion that the skilled person knew, as a matter of common general knowledge, that broad band noise is easier to locate that tonal or narrowband sounds.
115. Dr Leventhall did not think that Nakagawa gave the skilled person any useful information which would lead them to develop a locating device using broad band noise. He did not think the invention was obvious over spoken alarms. His view was that broad band noise was superior in terms of localisation to speech. It took longer to tune into speech whereas the localisation of broad band noise was "pretty instantaneous".
116. Amber Valley's argument here is weaker than the argument based on Neuhaus. Unlike Neuhaus, which includes a specific teaching to produce a localisable alarm, Nakagawa does not suggest that the speech was to be used for localisation and there is no suggestion that the known spoken reversing alarms were intended to be used for localisation either. There is nothing to prompt a skilled person to even think of localisation or of using broad band noise. My finding that the localisable properties of broad band noise were not common general knowledge undermines the key reason given by Mr Moore. The studies following the Manchester air disaster support the case for an inventive step over this art as well.
117. I reject the obviousness case over Nakagawa and common general knowledge spoken alarms.

Haustein

118. The only difference between what is disclosed in Haustein and what is claimed in claims 9 and 14 is that the device in Haustein is not a vehicle siren.
119. Amber Valley's argument over Haustein is simple. If the person skilled in the art was given Haustein and tasked to come up with a directional alarm, the paper, although directed to medical practitioners, would teach an acoustic engineer that white noise bursts can be used for location purposes. Thus a directional alarm, such as a vehicle siren, using white noise would be obvious. This was supported by Mr Moore. His clear opinion was that a skilled person tasked with coming up with a directional alarm would find Haustein of use in solving that problem. In his opinion therefore a directional vehicle alarm using broadband sound was obvious over Haustein. In his words it was "pretty obvious".
120. Brigade contended that the approach Amber Valley had taken was on the wrong basis. One should not imagine that the skilled person is already looking for a directional alarm before they are provided with Haustein. The person skilled in the art reads Haustein with interest but if they did so there is no reason why they should think of using the sound described in the paper to make a locatable vehicle siren.
121. Dr Leventhall's opinion was that the claims were not obvious over Haustein. He did not think Haustein made a broad band sound emitting vehicle siren obvious. He also did not think that a skilled person would learn reading Haustein that white noise had desirable locatability properties. He pointed out that no such statement appears in the paper and the paper does not compare the localisability of white noise with other sounds. On this latter point Dr Leventhall was cross examined about the results presented in the paper. Mr Tritton submitted that the data in the paper showed that the sound used was good for localisation. I agree.
122. Thus the obviousness question boils down to a simple point. Haustein describes a device which emits white noise for localisation and shows that white noise is good for this purpose. Would it be obvious for a skilled person reading Haustein to think of using white noise in a vehicle siren?
123. Brigade submitted that the answer was no. As I have said, its primary argument was that the skilled person reading Haustein would have no reason to think of applying its teaching to a vehicle alarm at all. Secondly Brigade also referred to the alarm culture, making the point that an alarm based on white noise would be contrary to that culture.
124. I doubt the alarm culture point carries as much weight for Brigade when considering the case over Haustein as it does over the other art. That is because here the skilled person is being presented with a location device which actually uses white noise. Moreover the Manchester air disaster studies do not assist Brigade at all over Haustein for the same reason. Haustein actually provides the skilled person with a locating sound consisting of white noise.
125. Mr Tritton argued that the fact that vehicle speaking alarms were common general knowledge assisted Amber Valley in the obviousness argument over Haustein but I do not agree. Although such alarms were common general knowledge, it was not established that there was any link in the common general knowledge between spoken alarms and localisation. The evidence was that speech was localisable but it was not suggested that this property of speech was being deliberately employed in spoken alarms. Accordingly the existence of vehicle speaking alarms in the common general knowledge would not have caused the skilled person reading Haustein to think of making a localisable vehicle alarm at all and that remains the case even if one takes into account the fact that speech is localisable.
126. There was also a debate about whether broad band noise was better than speech or only just as good for localisation. If broad band noise was only just as good as speech then the invention was argued to be of the 5½ inch plate variety, in other words a claim to something which is only non-obvious in the sense that it is pointless. The point was put in the context of the discussion of Haustein but it could equally have been advanced in relation to Nakagawa and the common general knowledge spoken reversing alarms. I am not persuaded that any broad band noise is necessarily much better than speech for localisation, especially given that speech does include sounds like "sh" and "s" in phrases like "Attention, vehicle reversing". However I do not accept that it is fair to characterise the argument here as a 5½ inch plate or pointless invention. An alarm which emits speech is a different thing from an alarm which emits broad band noise. Even if, contrary to Brigade's case, their locatability is comparable, the two alarms are not equivalent things. The sounds produced are very different. The fact (if true) that a speech alarm is as effective as a broad band noise alarm for this purpose does not make a broad band noise alarm pointless.
127. In the end I think the argument that the invention is obvious over Haustein is tainted with hindsight. The document is nothing to do with vehicle alarms. Unless the skilled person is already thinking about a vehicle alarm when they read Haustein, I can see no good reason why they should think of a vehicle alarm as a result of reading Haustein. I find that claims 9 and 14 are not obvious over Haustein.

The use claims, scope and s60(2)

128. Amber Valley infringes product claim 14 inter alia by selling and offering for sale the Ecolarm and so there are no acts which Amber Valley carry out which might infringe use claim 9 which do not infringe claim 14. Moreover, having been through the issues on validity, I cannot see a circumstance in which claim 9 might remain valid if claim 14 was invalid. Thus the question of whether claim 9 is also infringed by Amber Valley is of academic interest only. It raises some difficult questions in relation to the application of s60(2) of the 1977 Act to the infringement of a claim to the use of a product for a particular purpose. The well known case Mobil/Friction Reducing additive (G2/88) of the EPO Enlarged Board of Appeal was cited along with Grimme v Scott [2010] EWCA Civ 1110 and a number of other authorities.
129. Mr Johnson submitted that the customer, such as a bus company, using the Ecolarm would infringe claim 9 by using the alarm on a vehicle even if they were unaware of its localisable properties and only wanted the alarm for its environmental, lack of noise pollution, character. From there he submitted that the only knowledge required of a supplier of a means relating to an essential element of the invention under s60(2) was that the supplier knew the customer was going to use the device as an alarm. That was all "putting the invention into effect" in s60(2) meant in this context. Mr Tritton did not agree. He argued that to put a claim to the use of a device "as a locating device" into effect required the person using it to intend to use the device as a locating device. In order words there should be a mental element to the act of primary infringement. He also argued that irrespective of that, the words in s60(2) in the context of a use claim, must mean that the supplier of the essential means had to know or have reason to believe that the customer intended to use the product for the purpose actually referred to in the claim. These are difficult issues and they may have ramifications beyond this case. Moreover as an action proceeding in the Patents County Court both sides took a compressed approach to the preparation and presentation of the case. They are to be congratulated for doing so. However these questions could have been the subject of extensive research and much more lengthy submissions had that been proportionate. It was not.
130. In case my assessment is in error and infringement of claim 9 becomes important, I will briefly set out my findings of fact on the issues which seem to arise:

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 4^th 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.

Conclusion

131. I will give judgment for Brigade. In summary my findings are:

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).