England and Wales Patents County Court

IN THE PATENTS COUNTY COURT

		Rolls Building 7 Rolls Buildings Fetter Lane London EC4A 1NL
		08/05/2013

Judge Birss :

Topic	Paragraphs
Introduction	1
The witnesses	5
The person skilled in the art	11
Common general knowledge	13
The patent	29
Construction of claim 1	45
Infringement	67
Obviousness	70
Chinese Utility Model	72
UK Application	91
Bugaboo Frog	95
Conclusion	98

Introduction

1. This patent action concerns products known variously as baby buggies, strollers or pushchairs. I will refer to these products as buggies. The patent is EP (UK) 1 795 424 ("Transformable seat inlet for child's or doll's pram"). It has a priority date of 8 December 2005. The patent is owned by Mr Udo Beger, the third defendant. The first defendant, TFK Trends for Kids GmbH, is owned and managed by the Beger family. Nothing turns on the difference between the various defendants and I will refer to them as TFK.
2. The Claimant, Phil & Ted's Most Excellent Buggy Company Ltd, is a New Zealand company. I will refer to it as "Phil & Ted's". Both sides in this case sell buggies for young children. The UK market is an important market for them both. The dispute began with an email from Mr Oliver Beger, the CFO of TFK threatening proceedings for patent infringement in relation to sales in the UK of a Phil & Ted's product called the Promenade. The Promenade buggy has a seat which transforms into a carry cot and vice versa. Phil & Ted's began an action for unjustified threats and a claim for revocation on the ground that the patent is invalid. TFK denied invalidity and responded with a claim for infringement. Thus before me is a conventional patent action. It is agreed to leave over any point arising on threats to be addressed once the decision on validity and infringement has been made.
3. The only relevant claim is claim 1. TFK says claim 1 is valid and is infringed by the Promenade. Phil & Ted's says that claim 1 is not infringed and is invalid because it is obvious. Three starting points for the obviousness analysis are relied on: a Chinese Utility Model Patent (Goodbaby), a UK patent application (Bigo) and common general knowledge alone, based on a product called the Bugaboo Frog.
4. At the trial Phil & Ted's were represented by Andrew Lykiardopoulos instructed by Fasken Martineau. TFK were represented by Douglas Campbell instructed by Jennings IP.

The witnesses

5. Phil & Ted's relied on Mr David Cocks. He has a degree in industrial design and started his career as a designer for Addis in 1984. He then worked in various design consultancies. In 2000 he became a founder member of a buggy company, Micralite Ltd. Mr Cocks has worked on the design of a wide range of products. He worked on buggies in 1989-90 and then again from 1999 when he formed Micralite. The first Micralite buggy was called the Fastfold, it was adapted to accept a car seat in 2003 and a cot in 2004. In 2006/7 Micralite developed the Fastfold into a product called the Toro. Its current design is the Twofold. Since 1999/2000, the focus of Mr Cocks' work has been buggies.
6. Mr Campbell submitted Mr Cocks was inventive by profession and had a proven innovative ability. I agree and to the extent that it matters, I will take it into account. His direct experience in buggies meant Mr Cocks was well placed to give evidence about the common general knowledge in the relevant field.
7. Mr Cocks sometimes had a tendency to make loose, rather imprecise, statements in the course of his testimony. Also, in relation to obviousness it was not always clear exactly what differences were being taken to exist between the relevant prior art and the claim. Neither point undermined his evidence overall but I will take both into account.
8. TFK called Mr Whyte. He also had designed a variety of products, with 36 years experience as a mechanical engineering designer. From 1988 to 1996 he worked on components for Formula 1 racing cars. From 1996 to 2007 he was Chief Designer of ATB Sales Ltd, designing bicycles and in 2008 he set up his own consultancy producing designs for the bicycle industry. Like Mr Cocks, I thought Mr Whyte also was inventive by profession and had a proven innovative ability. As with Mr Cocks, to the extent that it matters, I will take it into account.
9. Mr Whyte has never designed or worked on a buggy. He did not profess to know anything about the common general knowledge in the relevant field at the relevant time. Mr Whyte appeared to relish the opportunity to argue the points in this case. This sometimes risked obscuring the issues rather than illuminating them but overall his views were expressed clearly.
10. A difficulty arose given Mr Whyte's lack of knowledge about the common general knowledge. A particular issue was the status and significance of the Bugaboo Frog. TFK did not agree with Phil & Ted's case, supported by Mr Cocks, that the Bugaboo Frog had been very prominent and changed the market when it was introduced. However Mr Whyte was unable to help on the issue and TFK produced no other evidence to support their position. Since TFK were in the market, they were in a position to comment on the common general knowledge directly, but they did not do so either by producing a witness to contradict Mr Cocks or by producing documents which undermined or qualified his views. Mr Campbell submitted that TFK could not have produced material contradicting Mr Cocks even if they had wanted to because there was no permission to bring factual evidence in this case. I do not accept that. TFK chose to call an expert who was unable to comment on the common general knowledge. They did not have to do so and they cannot be in a better position than they would otherwise have been as a result. The directions order made at the case management conference in this case specifically provided that one of the issues about which the experts would give evidence was common general knowledge. There is a rule in the Patents County Court (r63.23(2)) which makes it difficult for a party to rely at trial on material for which no permission was given at the CMC. However in this case TFK had permission to call evidence about common general knowledge. If after deciding to rely on Mr Whyte, they had wanted to call evidence on common general knowledge through a different medium, they could and should have raised the matter with the court. I doubt r63.23(2) would even be engaged if all a party was seeking to do was to call non-duplicative evidence it has already been given permission for through a different medium but even if the rule had been engaged, it is hard to see how the application would have been refused. I do not accept that TFK can rely on the PCC rules as an excuse for not calling evidence about common general knowledge in this case.

Person Skilled in the Art

11. It is common ground that the relevant person skilled in the art in this case is a person interested in designing buggies. They are likely to have a degree in industrial design or mechanical engineering.
12. Mr Cocks' evidence, which I accept, was that the person would:

i) Have a good knowledge of mechanical design and development;

ii) Have a good knowledge of the pushchair/baby market and trends as to what parents are looking for;

iii) Be familiar with manufacturing processes;

iv) Have a good knowledge of relevant safety standards;

v) Have a good understanding of fabrics and fabric construction.

Common General Knowledge

13. The law on common general knowledge was summarised by Arnold J in KCI Licensing v Smith & Nephew [2010] FSR 31 at paragraphs 105-115, approved by the Court of Appeal at [2011] FSR 8 at paragraph 6.
14. The relevant common general knowledge had three elements: safety standards; buggies which were sufficiently well known to be part of the common general knowledge; and design features and techniques.

Safety standards

15. In 2003 European Standard EN1888:2003 was released. Although it was never ratified, it became the standard in the industry. It formed part of the common general knowledge of the skilled person in 2005.
16. The standard specifies the safety requirements and test methods for wheeled child conveyances designed for the carriage of one or more children. It includes a number of definitions. A "pram body" is in effect a cot, with the child horizontal. A "seat unit" is a seat. The word "convertible" means a "vehicle combining the possibility of two uses; achieved by the pram body transforming into a seat unit and vice versa". The term "combination pushchair" means "a vehicle combining the possibility of various uses by attaching a pram body, a seat unit, a car seat or similar item to the chassis".
17. Phil & Ted's contends that the concepts of "convertible" products and "combination" products, as defined in the standard, were common general knowledge in 2005 and that this was reflected in the standard. I agree.
18. The idea of a convertible buggy needs no further explanation at this stage. The idea of a combination product bears expanding. By 2003 some buggies had a modular form. There was a chassis and different units could be fixed onto the chassis. So a chassis could carry a seat unit but the seat unit could be unclipped and replaced by a separate unit such as a cot or a car seat. Parents whose baby had fallen asleep in the car could remove the car seat from the car with the baby still asleep inside and clip the car seat into the chassis of the buggy, hopefully without waking the baby.
19. Another important element in the standard was the provision about the recline angle for newborns. In order to be sold as a buggy suitable for use from birth, the buggy seat had to recline by at least 150°. This was apparently a change from the previous standard. I was not satisfied about the evidence explaining the previous standard but that does not matter. The important thing, which I accept, is that the 2003 European standard meant that a bucket seat at a fixed angle which simply tipped backwards could no longer be sold as being suitable for use from birth. Either the backrest of the seat had to recline to near horizontal or the seat had to convert to a cot. This was an important matter for buggy designers.

Buggies

20. Mr Cocks focussed on buggies which had adjustable or convertible seat mechanisms which he thought formed part of the common general knowledge in 2005. He was right to do so and although it can be said to have involved a degree of hindsight in focussing on that part of the buggy market, I do not accept this was impermissible. Apart from anything else the standard shows that, without any sort of hindsight, convertible and combination products were focussed upon at the relevant time.
21. The most important two products in the evidence were the Maclaren strollers and the Bugaboo Frog.
22. The Maclaren strollers dated from the 1970s. They originally had fixed fabric seats but were developed to use adjustable reclining seats. They used gussets in the fabric and flip up leg rests to support the child's legs when reclining. They had a three part base. In 2000, the Maclaren had a lie flat position in which the backrest and leg rest sections were near horizontal with the seat base.
23. The Bugaboo Frog was launched in 1997. Mr Cocks said it changed the market. TFK submitted that this had not been established and no documents had been produced to bear this out. I have borne that in mind but I accept Mr Cocks' evidence.
24. The Bugaboo Frog changed the market by creating consumer demand for so called "travel systems" or "3 in 1" products. The Bugaboo Frog was what the 2003 standard called a combination product. The Bugaboo Frog had a wheeled chassis onto which different items could be fitted. One item was a seat frame. The seat frame could be tilted in three positions (upright, recline or horizontal). The Bugaboo Frog had two fabric inserts: one was used when the seat frame was a seat; and the other fabric insert was used when the frame was horizontal, to make a carrycot. Thus to convert the seat into a carrycot, the frame was tilted to the horizontal position, the seat fabric insert was removed and the cot fabric insert was put in place. The seat frame was removable by releasing two connectors. This allowed the seat to be turned to face either the direction of travel or the parent. Instead of the frame, a car seat could be fitted into the chassis sockets.
25. There were clearly numerous buggies on the market in 2005 and just because a buggy was available does not make it common general knowledge. Mr Cocks referred to a number of other buggies which he did not think were common general knowledge. They are not relevant. However there were four further buggies which Mr Cocks thought were also common general knowledge in 2005. They were: the Quinny Buzz from 2003/4; the Mountain Buggy from 2000; the E3 Stroller (and earlier Explorer stroller) from Phil & Ted's; and the Stokke Xplory. The Quinny Buzz had a single chassis with three interchangeable components – a seat, a cot and a car seat. The Mountain Buggy was a very popular three wheeled design with a fabric seat which could lie back using gussets and adjustable webbing straps. The Phil & Ted's E3 and Explorer were similar to the Mountain Buggy and used gussets, straps and zips to allow the seat to achieve a lie back position. The Stokke Xplory had a chassis with a removable seat which could be tilted and was reversible. A dedicated carrycot could be connected on the chassis instead. I accept Mr Cocks' evidence that these were also part of the common general knowledge in 2005.

Design Features and Techniques

26. The following design features were part of the common general knowledge:

i) Using connectors or adapters on a chassis to enable different components to be attached to the same chassis. They were lockable.

ii) Foldable fabric seat units.

iii) Moveable foot sections.

iv) Reclining mechanisms in general (there were a number of options).

v) Frame construction from tubular aluminium or steel with plastic moulded joints.

27. From the point of view of this case, an important area of common general knowledge related to the design techniques used to handle fabric. Buggies generally have fabric on the sides and often under the base. The use of gussets, zips and straps to gather up and control such fabric were all well known expedients in this field.
28. Mr Cocks expressed the view that by 2005 it was a prerequisite to design a buggy seat that was (a) removable, so that a car seat or carry cot could be clipped into the frame instead and so that it could be rotated to face towards or away from the parent and (b) it was convertible from a seat to a lie flat. The word "prerequisite" is going too far and I do not accept it. However I do accept that in 2005 these two functions were very important considerations for any buggy designer and were part of that designer's common general knowledge.

The patent

29. The authentic text of the patent is in the German language. Both sides worked from an agreed translation and no issue arose which required any reference back to the German text.
30. In paragraph [0001] the patent describes the invention as a convertible seat/lying down insert for baby carriages and doll's prams. The expression "convertible seat/lying down insert" is a bit cumbersome but its meaning is clear. The invention is an insert, i.e. something which can be inserted into the chassis of a buggy. The insert can be converted from a seat into a cot in which the baby will be lying down. In fact the insert can be used in a doll's pram as well as a buggy but nothing turns on that.
31. After the first paragraph some prior art is referred to from paragraph [0002] to paragraph [0011]. This part acknowledges that "seat/lying down inserts" are known.
32. At paragraph [0012] the problem on which the invention is based is described. The idea is to further develop an insert so that it is particularly simple in structure and can be converted in a few hand movements from a lying down insert into a "baby buggy insert" (i.e. a seat). It can also be used as a carry cot or seat on a support base and can be collapsed when not in use. It can be used with different kinds of chassis.
33. The insert of the invention consists of an upper frame, an articulated base which forms the seat or bed as required and suspension means which can hang down from the frame and support the parts of the base. The idea is that the insert can be converted between the two different states simply by tilting the upper frame and adjusting the angular positions of the base parts by re-attaching the suspension means (see paragraph [0018]). The frame has adapters which allow the carriage insert to be adapted to any design of chassis or chassis mounting elements (paragraph [0020]). The adapters also allow the insert to be fitted onto a pedestal with fold-out feet (paragraph [0021]).
34. In paragraph [0015] the description mentions the idea that the insert can be set in intermediate positions. I mention this only because Mr Whyte understood that this was a feature of the claimed invention but it is not and Mr Campbell did not suggest that it was. The claim does not require the insert to be able to be set at an intermediate position between sitting and lying down.
35. Also in paragraph [0015] a "special feature" is mentioned which Mr Campbell relied on. The context is that the patent refers to the base or inserted mattress in the insert as having three parts. The description acknowledges that having three parts is already known from a prior art document DE 200 07 948 U1 but states that the special feature here is that in any use position of the claimed insert, the first base part facing the foot end at least forms part of the supporting section for the lower legs of the child, the middle part forms the seat and the third part forms the backrest section. This allows the footwall of the insert to be used as a foot support for smaller children.
36. Various options are mentioned. The insert can be collapsed into a flat stowage position (paragraph [0016]), the frame can take different shapes (paragraph 0017]), instead of using a rigid base wall, the entire insert can be a textile fabric with stiffened panels [paragraph [0019]). Options for the suspension means are also described in this section of the description but I will return to that below.
37. From paragraph [0023] a number of exemplary embodiments are described and shown in the drawings. The patent has 29 figures and includes many exemplary embodiments. Care needs to be taken with some of the figures because they do not always show all the elements which the embodiment in question has. Also the figures are shown without the fabric side covering and walls which would be present in practice.
38. One embodiment is that shown in figures 1 to 7. Figure 1 shows the insert in its lying down format and figure 3 shows it in the seat format:

39. In this embodiment the insert is made up of a frame 8 and a base made up of three parts 11, 12 and 13. The three parts are hinged to one another. The insert is converted from lying down format to seat format by tilting the frame.
40. Fixed to the frame are mounts 6 and 7 which are fitted via pivot joints 4 and 5 onto parts 1 and 2. The description uses the term "adapters" for parts 1 and 2 (e.g. paragraph [0025]). Adapters 1 and 2 have coupling elements 23 and 24 by means of which the adapters can be plugged or mounted onto elements on a buggy chassis. In this embodiment the link between parts 1 and 2 and parts 23 and 24 is a pivot 25.
41. Although it might look in figure 1 as though the middle panel of the three part base is connected to the adapters, when the insert is turned into a seat (fig 3) it can be seen that the middle panel is not fixed to the adapters.
42. The "special feature" mentioned above can be seen in these figures. The head end of the insert is on the left. Part 13 of the three part base supports the child's lower legs both in the seat position and in the lying down position. The significance of that is that it may allow a child to remain undisturbed when the insert is moved e.g. from the seat position to the lying down position. The "foot wall" is formed from panels 17 and 18.
43. Another embodiment is shown in figures 10 and 11:

44. In this arrangement the suspension tapes 9 and 10 are shown attached to press studs on the frame in the seat position (figure 11) and are shown as unattached in figure 10. This arrangement has slightly different adapters from those in figures 1 and 3. The frame 8 is still attached to parts 1 and 2 by pivots 6 and 7 but now there are "support elements" 30 which can be pushed in from below into hollow parts 1 and 2. These support elements 30 can be fixed to "coupling elements" 23 and 24. The coupling elements are designed as pivot bearings.

Construction of claim 1

45. The leading authority on construction 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. Guidelines on the general approach were given by the Court of Appeal in Virgin Atlantic v Premium Aircraft [2010] FSR 10.
46. Claim 1, divided into features, is as follows

1	Convertible seat/lying down insert for baby carriages or doll's prams
2	comprising an upper encircling frame (8), at which are suspension means (9,10)
3	for fastening to a base with pivotably interconnected base parts (11, 12, 13), which are stiff in bending and define transversely extending fold axes
4	or a foldable mattress (33), which has transversely extending fold axes, with stiffened panels,
5	and devices for pivotable fastening of the frame (8) to support elements in or at the chassis of the baby carriage or doll's pram
6	wherein the seat/lying down insert is transferrable from the use setting as a lying down insert to a use setting as a seat insert by bringing the frame (8) from a substantially horizontal position to at least one inclined position characterised in that
7	downwardly extending adapters (1,2) lying approximately at the centre of gravity axis of the frame (8) or offset towards the head end of the frame are provided at the side bars of the frame (8)
8	and are fastenable directly or via mounts (6,7) thereto and at the underside in or on the chassis or on a pedestal placeable on a support base
9	and the adapters (1, 2) are settable at the top and/or bottom at different angles of inclination or the frame (8) is settable into different angles of inclination relative to the adapters (1, 2),
10	wherein in the horizontal position of the frame (8) a first base part (13) or mattress panel of the mattress (33), which extends substantially parallel to the frame and in the direction of the foot end, in each position if use of the seat/lying down insert forms at least the support section for the fibulae
11	the following base part (12) or mattress panel forms the sitting section
12	and the third base part (11) or mattress panel articulated thereto forms the backrest section
13	and the relative angular adjustment of the sections is carried out by change in length and/or by changing the connecting points of the suspension means.

47. The claim includes a number of alternatives and options which can make it difficult to follow at first sight but which can be understood with a bit of care. The insert has a frame. It has to have some sort of base but that can either be what the claim calls a base with pivotably interconnected base parts (which are stiff) or else a foldable mattress with stiffened panels. Feature 6 requires the insert to be transferrable between the seat and lying down position by moving the frame from a substantially horizontal to an inclined position.
48. Points on construction arise on the following topics:

i) Suspension means

ii) Adapters

iii) The base or mattress

49. I will deal with them in turn.

Suspension means

50. The suspension means at the frame (feature 2) are for fastening to either the base or mattress (set out in features 3 or 4 respectively).
51. Feature 2 calls for a frame "at which are" suspension means. This is relatively broad wording and would not be understood as demanding a direct fixing of the suspension means onto the frame itself as long as the suspension means is at, i.e. close to, the frame.
52. In figures 1 to 3 the suspension means are tapes marked 9 and 10. The tapes run from the base parts and attach to the frame by means of press studs. After mentioning the tapes as suspension means paragraph [0028] states:

However, instead of such tape-formed suspension means, the side walls consisting of textile material can also be used directly as adjustable suspension means. For example, by folding the side wall it can be ensured that this can be shortened or lengthened by means of press studs 38. Tape-formed suspension means can also be stitched into the material and can then each be connected with press stud elements arranged in a particular pattern in order to achieve the desired raising or lowering of the individual base parts 11, 12, 13 depending on the position of the frame.

53. A similar idea can be seen in paragraph [0016] (referring to integrating the suspension means in the side walls).
54. Mr Lykiardopoulos submitted that the skilled reader would understand that the patent acknowledged that suspension means could be the fabric side walls of the insert. I agree up to a point. The description is clearly stating that the adjustable suspension means can be made using fabric side walls but that does not mean that any fabric side wall will automatically be "suspension means". The example the description gives involves using press studs for shortening or lengthening the material by gathering it up. At paragraph [0016] the description refers to integrating the suspension means in the side walls or attaching them separately and mentions press studs, loops, tape connections or strap systems. Whether in a given case a fabric side wall is all or part of the suspension means will depend on how it is arranged and what it does.
55. For example in figure 10 the lying down mode is depicted. The straps 9 and 10 are not shown as connected to the frame (they are connected in seat mode - figure 11). Looking closely at figure 10 it can be seen that there is nothing holding the base in place. The text describes press studs on the textile side walls (not shown). Although it is not stated, the base could just be supported by textile material fixed to the frame and encompassing the whole base.
56. Feature 13 also refers to the suspension means. The adjustment which sets the relative angles between the base parts is carried out by changing the length or connecting points of the suspension means. It was suggested that this reference to relative angles means that all three base parts have to be able to change their angle. That is not right. All the claim requires is relative adjustment. So being able to move the two end parts up and down but leave the middle base part alone would satisfy the claim.
57. Feature 13 would be satisfied by a fabric strap which was attached to a press stud in one mode but loose in the other mode (see e.g. figures 1 and 3 and figures 10 and 11).

Adapters

58. The claim has been written in the familiar pre- and post-characterising format of the EPO. One of the drawbacks of this format is that it can lead to elements being mentioned twice. So here. Feature 5 in the pre-characterising part and features 7, 8, and 9 of the post-characterising part are all referring to the same parts which connect the frame to the chassis or pedestal. Feature 5 uses fairly general language and refers to devices for pivotable fastening of the frame to support elements at the chassis. Features 7, 8 and 9 refer to adapters.
59. Feature 7 requires the adapters to be downwardly extending, to be provided at the side bars of the frame and also provides for their location relative to the centre of gravity of the frame. The location relative to the centre of gravity is only approximate and can be offset towards the head end.
60. Feature 8 has two aspects. First the adapters must be fastenable directly or via mounts "thereto". Mr Campbell submitted "thereto" refers to the frame. I think he is right although the word "fastenable" is odd since it would seem to imply that the adapters can be fastened to and unfastened from the frame whereas there is no suggestion in the description that the adapters can be unfastened from the frame. Second the adapters are fastenable at the underside (of the adapters) in or on the chassis. In this context the word fastenable makes sense since the idea of the adapters is that the insert can be fastened to and unfastened from the chassis. Feature 8 also refers to a pedestal on a support base as an alternative thing to which the adapters can be fastened but nothing turns on that.
61. Feature 9 comprises a number of options which all boil down to the ability to pivot the frame. The pivots can be at the top or the bottom of the adapters or both. So the adapter can be fixed relative to the frame but pivot at the bottom so that the frame pivots relative to the chassis (if fixed to a chassis). Or the adapter might be fixed relative to the chassis but then it would pivot at the top so that again the frame can pivot relative to the chassis. One consequence of this is that the pivot can be below the "downwardly extending" part of the adapter (as it is in figures 1 to 3).
62. An important question of construction concerns the word "adapter". It is not a term of art. It is a general word which does not import any particular limitations and takes its meaning from its context. The idea is that the adapters allow the insert to be fastened to and unfastened from any sort of chassis or pedestal. They adapt the insert to the chassis or pedestal.
63. The adapters are not part of the chassis, they are part of the insert. Some parts of the description appear to use the word adapter in a rather narrow sense. In figure 10 the support elements 30 can be pushed into hollow adapters 1 and 2. So in that figure support elements 30 appear to be regarded as distinct from adapters 1 and 2. Feature 5 of the claim is consistent with this since it provides that the chassis will have "support elements" to which the insert can be fastened.
64. However in figures 1, 2 and 3 adapters 1 and 2 are said to "possess coupling elements 23, 24 at the bottom by means of which the adapters can be plugged or mounted onto the mounting elements on the baby carriage" [paragraph 0026]. Thus in this embodiment the coupling elements 23 and 24 are part of the adapters (as indeed are the pivot bearings 25). The reader would understand that when an insert as described in figures 1 to 3 is removed from a chassis, coupling elements 23 and 24 and pivot 25 would remain part of the insert. They would not remain on the chassis.
65. I think a skilled reader would understand, particularly bearing in mind figures 1 to 3 but also the word adapter itself, that the inventor was not seeking to use language in the claim in a narrow sense. The skilled reader would understand that the adapters, in terms of claim 1, are simply the parts of the insert by which the insert can be mounted onto and dismounted from the chassis.

The base or mattress

66. Features 10, 11 and 12 refer to the base or mattress. It must be in three parts. Two parts form the backrest and sitting section. The other part (feature 10) must have the "special feature" I have mentioned above. The key thing is that this part of the base must support the fibulae (lower leg) in both the seat and also in the lying down format.

Infringement

67. The Phil & Ted's Promenade buggy has an insert which can be converted between a seat and a carry cot format. It has a frame and a three part base. The frame has adapters which point downwards and slot into fittings on a chassis. The adapters are attached to the frame by lockable pivots. The insert can be taken out and replaced by a car seat or rotated to change the direction in which the child is facing. In the carry cot format the frame is horizontal and the fabric walls hang vertically attaching the frame to the base. To transfer the insert into a seat, the frame is pivoted upwards at the head end and two straps are fastened behind the seat. One strap gathers up the fabric at the sitting section to place the edge of the seat at about the same level as the frame. The other strap gathers up fabric at the top of the backrest and pulls it to the same level as the frame. With the frame at an angle a seat is formed. The backs of the legs are supported by the third part of the base. The frame has a hinge built into it which allows a footwell to be created by bringing the lower end of the frame upwards relative to the rest of the frame.
68. The points on non-infringement are squeezes in the sense that if the claim is broad enough to cover the Promenade product then certain features which might have been relevant differences over the prior art disappear.
69. The debate arises from the fact that the Promenade base is suspended from the frame by the fabric side walls when it is in the cot format and then has straps which only work in the seat format to gather up the fabric and the base parts in order to form the seat. The straps are loose when not in use in the cot format. In my judgment this falls within the terms of claim 1. I do not think it matters whether the suspension means are the straps themselves or the combination of the fabric walls and the straps. The fabric walls (with straps) are "at" the frame since they hang from the frame. The fact that the straps are fixed to the fabric a few centimetres from the frame edge does not matter. The fabric walls fasten the frame to the base. The relative angular adjustment of the base sections is accomplished by doing up and releasing the straps.

Obviousness

70. The structured approach to the assessment of obviousness was set out by the Court of Appeal 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?

71. The person skilled in the art and the common general knowledge have been addressed above. Given the way the claim is drafted and the fact that the claim has distinct differences over the various prior art citations, this is not a case in which a pithy inventive concept can or should be formulated. I have construed the claim above.

Chinese Utility Model (Goodbaby)

72. The publication number of the Chinese Utility Model is CN2739058Y. It was applied for on 30^th September 2004 and published on 9^th November 2005. It belongs to the Goodbaby Children Products Co Ltd. I will refer to the document as "Goodbaby". The title is "Seat pocket for a stroller". The product can be turned from a seat to a cot and vice versa. Figures 1 and 2 show the seat and cot states respectively:

73. There is a frame 10 and a seat plate 1. There are said to be pivots at the top and bottom of the supporting rod 8 but the one which matters is the lockable pivot with the seat plate marked as 13. When the lockable pivot 13 is unlocked, the frame can be moved between the horizontal position when the device forms a cot and the tilted position when the device forms a seat. Parts 6 and 7 are hinged to each other. In the seat position parts 6 and 7 form the place for the backrest. The parts were at 90° when the device was a cot but as a seat they form a straight line. Parts 4 and 5 are also hinged to each other.
74. As drawn there is no solid base in the region 7 nor is there a seat on the seat plate 1. The mechanical parts on seat plate 1 are visible in figure 2. Equally no fabric walls are shown, as in the TFK patent. No chassis is mentioned in Goodbaby either although TFK accepted that feature 5, which requires a chassis, was not a relevant difference from the point of view of assessing obviousness. I am sure TFK were right to make the concession but in order to consider obviousness properly I need to identify with care what exactly is disclosed by the document itself.
75. Mr Whyte's report contained a claim chart which accepted that features 1, 2, 3, 4, 6, 10, 11 and 12 were disclosed. The arguable differences between the disclosure, as written, and the claim are feature 5 (no chassis described), features 7, 8 and 9 (TFK contend there are no adapters) and feature 13 (TFK contend that the angular adjustment is carried out using and only using the frame itself).
76. Many obviousness arguments start from an item of prior art which differs from a claim and contend it would be obvious to modify the prior art in such a way as to remove that difference. The obviousness case over Goodbaby is of a different character. Phil & Ted's argues that if a skilled person put the disclosure into practice, without any inventive step, the resulting product would be a product within the claim. The argument is not focussed on modifying the disclosure.

Removable attachment and features 7, 8 and 9

77. Phil & Ted's submits that when the product is fitted to a chassis (as it is plainly intended to be) the arrangement of rods 8 and seat plate 1 are the same as adapters claimed in claim 1. All of features 5, 7, 8 and 9 would be satisfied. TFK accept feature 5 but do not accept that the arrangement would satisfy feature 7, 8 and 9. Mr Whyte thought that for adapters to be present the Goodbaby product would have to be modified so as to be attached to a chassis by the rods 8 rather than by the seat plate but that is not the argument put forward by Phil & Ted's. I am not concerned with an argument which involves using rods 8 to fit the seat to the chassis. Phil & Ted's argument is that fitting the seat plate to the chassis of a buggy, which is what a skilled person would plainly do, produces an arrangement which satisfies features 7, 8 and 9. For this, two issues arise: first whether the seat plate would be fitted in a way which was removable; and second, assuming it was removable, would the arrangement of the parts be within the claim. The arrangement could only be within the claim and could only be described as involving "adapters" if the seat plate was removable.
78. Goodbaby does not state in terms that the seat plate can be mounted and dismounted from a chassis. Mr Campbell put to Mr Cocks that the seat could simply be clamped to a chassis. Mr Cocks accepted that it was possible simply to clamp it but he did not think it was desirable. Mr Cocks thought you would want to removably attach it.
79. The idea of removably attaching a seat was consistent with the common general knowledge, after all combination products are mentioned in the 2003 standard. There were at least two reasons for having a combination product, one was to allow a car seat to be fitted to the chassis instead and the other was to allow the seat to be turned round so that the child faced in the opposite direction. In the context of Goodbaby, Mr Cocks accepted in cross-examination that the Goodbaby arrangement was not a good starting point for fitting a car seat, although he was not asked to elaborate as to the reasons why not. However Mr Cocks' view that the skilled person would want to attach the seat insert removably was not limited to the idea of replacing it with a car seat.
80. In my judgment it would have been obvious for a skilled person to fasten the Goodbaby insert to a chassis in a removable manner. On that basis, assuming the other features 7, 8, and 9 are satisfied, the arrangement would involve the use of adapters since it would be an insert with parts which allowed it to be mounted onto and dismounted from a chassis.
81. The position of rods 8 and seat plate 1 are towards the foot end of the cot/seat. TFK did not accept that this complied with the element of feature 7 relating to the position of the adapters relative to the centre of gravity of the frame. I am satisfied that this is within feature 7. The rods and seat plate lie approximately at the centre of gravity of the axis of the frame, which is all that feature 7 requires.
82. There is no doubt that feature 8 would be satisfied. I find that the pivot required by feature 9 would be satisfied by pivot 13. The fact that there is a part underneath the pivot which attaches to the chassis (i.e. the seat plate 1) is not a relevant difference. In this respect it is similar to the arrangement in figures 1 to 3 of the patent, with parts 1 and 2 linked to coupling elements 23 and 24 by pivots 25.
83. I find that the whole of features 7, 8 and 9 would be satisfied if a skilled person put Goodbaby into practice without exercising any inventive step.

Fabric and feature 13

84. Mr Cocks said that although Goodbaby does not specifically state that fabric side and end walls should be present, the skilled person would understand that in practice side walls and an upholstered fabric base would have to be present otherwise the seat unit would not be acceptable. He thought the fabric was not shown for the same reason as in the TFK patent. He thought the fabric would be attached to the frame and anchored to the base, preferably at points 2 and 3 (the extremities of the base) to allow the fabric to articulate with the frame. The fabric would be integral with a mattress to cover the seat base parts. It would have fold lines to match the seat sections so that it would fold in the right places as the orientation changed. The fabric side walls would support the mattress. Since no solid backrest was shown in Goodbaby, the skilled person would provide one. Mr Whyte did not disagree with this and I accept Mr Cocks's evidence.
85. The question which arises would be how to deal with the change in geometry as the product moves from cot to seat and vice versa. To accommodate the changes in geometry Mr Cocks said that a skilled person would include a series of gussets and/or elasticated material at the fabric sides. He thought a skilled person would appreciate that in the seat configuration there will be more fabric needed to cover the distance between the frame and the base parts and would design fabric walls that would work in both the seat and carrycot configurations. He pointed out that gussets and the like were common general knowledge. He acknowledged that this fabric construction would be relatively complicated and that an alternative would be to use two fabric inserts, as in the Bugaboo Frog, albeit that would have its own disadvantages. Mr Cocks thought each option had pros and cons and that whichever would be followed would be a matter of personal preference for the designer. In other words both were obvious.
86. In cross-examination Mr Whyte thought that the task of arranging the fabric in Goodbaby was not obvious. He thought the exercise would be complicated and "a lot of work".
87. One of the key reasons put forward by Mr Cocks in support of his opinion on the question of fabric handling was that this was part of the common general knowledge of a skilled buggy designer. That was something Mr Cocks was better able to deal with than Mr Whyte. I prefer Mr Cocks' evidence on the handling of fabric by a skilled person to that of Mr Whyte.
88. Whether the product a skilled person would produce based on Goodbaby had gussets, some elasticated fabric, zips, straps or some combination of these elements does not matter. What matters is that a skilled person putting this into practice would produce an arrangement in which the changes in length of the fabric which arose from the changes in geometry would be accommodated. Loose fabric would be gathered up in gussets by straps, zips, press studs or the like and conversely, when lengthening was needed, the straps, zips, press studs etc. would be released. Doing this would not involve an inventive step.
89. Would the Goodbaby device, implemented in this way, fall within feature 13 of claim 1? TFK submit that feature 13 would never be satisfied in Goodbaby because the angular adjustment of the sections is always actuated by the articulation of the frame to the base parts by parts 4 and 6. So angular adjustments are not carried out by changing the length or connecting points of the fabric and feature 13 is not satisfied. I do not accept this argument. In the obvious implementation of Goodbaby the fabric walls, including gussets, straps/zips etc. would be suspension means. At the very least the fabric would suspend the backrest part which would be fitted in section 7 of Goodbaby. When the product is moved from cot to seat format, these suspension means would need to be changed in length and/or have the connecting points changed. That will satisfy feature 13.

Combination of removable attachment and the fabric

90. To produce a product within claim 1 starting from Goodbaby, the skilled person would have to both attach the product to a chassis removably and also employ fabric in the manner I have described. Subject to any question of collocations (cf. Sabaf [2004] UKHL 45), for the claim to be obvious both have to be done together. In my judgment both steps are obvious and both would be done by an uninventive skilled person putting Goodbaby into practice. They are obvious in combination because to put Goodbaby into practice both aspects of the design of the seat have to be dealt with. Some sort of attachment to a chassis is necessary and some sort of fabric arrangement is also necessary.

Conclusion on Goodbaby

91. Goodbaby does not deprive claim 1 of novelty because the document does not describe fitting the seat plate to a chassis removably and does not describe the fabric which would be used. It is not inevitable that a skilled person putting Goodbaby into practice would produce an arrangement within claim 1 but in my judgment an arrangement within claim 1 is something which a skilled person would produce without exercising any inventive step, given Goodbaby. I find that claim 1 is obvious. Since claim 1 was the only claim alleged to be independently valid, the patent is invalid.

UK application GB 2 163 045 (Bigo)

92. The Bigo application was published on 19^th February 1985. Since I have found that the TFK patent is invalid over Goodbaby I can deal with Bigo shortly.
93. Bigo is entitled "Convertible carrier for an infant". The document describes a chair which can be converted into a cot and vice versa. The conversion process uses straps and feature 13 of claim 1 is satisfied by Bigo. Two differences between claim 1 and Bigo are relied on. First TFK contend that the idea of removable attachment to a chassis is not disclosed and so there can be no adapters (features 7, 8 and 9). The only reference in Bigo is to fitting the unit to a chassis by clamps. Second, TFK contend that the "special feature" of the patent (feature 10) is not present in the arrangement disclosed in Bigo. In Bigo the part of the base which supports the lower legs (fibulae) in the seat configuration does not support the lower legs in the cot format, that part forms the end wall. Thus, even if it was obvious to fit the product to a chassis removably such that adapters would be present and features 7, 8 and 9 satisfied, the resulting structure would not satisfy feature 10. Further modification would be needed to bring the arrangement within claim 1.
94. Phil & Ted's argues that by 2005, the state of the common general knowledge meant that it would have been obvious to fit the Bigo insert to a chassis removably and therefore to employ adapters. On the second point Phil & Ted's argues that it would be obvious to alter the Bigo arrangement so as to include a foot well in the seat portion and the result of doing that would be to produce a system which satisfied feature 10.
95. I think it would have been obvious to a skilled person reading Bigo in 2005 to fit the arrangement disclosed in a removable fashion and therefore to use adapters. However I do not accept the second point. Feature 10 allows the arrangement to be reconfigured between seat and cot while minimising the disturbance to the child. That is an advantage over the Bigo arrangement. There is nothing in the common general knowledge which would make it obvious to seek to achieve that advantage. To attempt to avoid this difficulty Phil & Ted's argues that a foot well would itself be obvious. I doubt that but even if a skilled person thought that the chair in Bigo lacked a support for the feet and needed something, it does not follow that they would think of using an arrangement which would necessarily take the product inside claim 1. The skilled person might instead attach a plastic foot plate. It would support the feet of the child but would not produce an arrangement which would come close to claim 1. I can think of no reason why a skilled person would produce a product within claim 1, acting without invention over Bigo.

Bugaboo Frog

96. I can also deal with the argument over the Bugaboo Frog shortly. It was launched in 1997 and as I have found, became part of the common general knowledge.
97. TFK contended that features 1, 6, 10 and 13 were not disclosed by the Bugaboo Frog. Mr Cocks agreed features 10 and 13 were not disclosed. This debate about features is apt to obscure the real issue. The point is that the Bugaboo Frog had two fabric inserts, one for use when the frame had been set as a seat and the other for use when the frame had been set as a cot. Thus it was common ground that feature 10 was not satisfied because the base part used in the seat to support the legs was a different thing from the base part which supported the legs in the cot. Also feature 13 was not satisfied because there are no suspension means at all. Phil & Ted's argument was that it would be obvious to replace the two fabric inserts with a single insert and that single insert would then be configured to accommodate the change in geometry, thereby satisfying features 10 and 13 (and for that matter features 1 and 6). Thus whether the Bugaboo Frog itself satisfied features 1 and 6 does not matter.
98. Given that the product was common general knowledge, if the change to a single fabric insert had been obvious, one might have thought it would have been done already. I note that Bugaboo themselves had never made this change. The product was a proven commercial success. I think TFK are right to argue that to change the product this way would be to abandon its basic design. Moreover the argument put at trial was based on a sketch drawn by Mr Cocks (X2) which showed how the seat fabric could be modified to turn it into a cot insert using straps. I am not convinced that the size of the footwell in the seat form was sufficiently deep to mean that this sort of alteration would produce a realistic cot without further changes. I think the arguments over the Bugaboo Frog are tainted with hindsight and I reject this obviousness attack.

Conclusion

99. The patent is invalid in that it is obvious over Chinese Utility Model CN2739058Y (Goodbaby).