Patent decision

BL number

O/001/14

Concerning rights in

EP1 196 672 B2

Hearing Officer

Mr A C Howard

Decision date

3 January 2014

Person(s) or Company(s) involved

Tek-Dek Limited and Flexiteek International A/S

Provisions discussed

Section 71

Keywords

Claim construction, Infringement

Related Decisions

O/311/12, O/120/13

Summary

The patent relates to a surface covering for a boat deck which resembles a traditional construction of wooden planks and caulking. The claimant requested a declaration of non-infringement in respect of a number of items within two product ranges. The key to the question was the proper construction of certain features of claim 1. During the prosecution of the application before the EPO and subsequent opposition proceedings, the patent claims had been held valid on a particular construction these features, but in the present proceedings the patentee argued for a different, broader, construction. Referring to Kirin-Amgen and others v Hoechst Marion Roussel Limited and others [2005] RPC 9, Furr and CD Truline [1985] FSR 553, and Wesley Jesson Corp v Coopervision Ltd [2003] RPC 20, the Hearing Officer held that the EPO proceedings did not give rise to any estoppel and were not relevant to the skilled person’s reading of the granted claims. Using the approach of construing the claims through the eyes of the skilled person, the accused products were found not to fall within the scope of claim 1 and the requested declaration was granted.