Case No. IP-2015-000205

32.In my view the natural meaning of the words used in paragraph 55, particularly the use of ‘and’ in the third sentence, would lead the skilled reader to the construction proposed by Joa: the ultrasonic bonding creates holes in all three layers of the side panels and thus the vents which makes the panels breathable. 33.I do not believe that the points advanced by Mr St Quintin would drive the skilled person towards FDS’s alternative construction. Before I consider those points, there is an initial difficulty presented by the specification, namely what precisely is meant by a ‘bond site’ or ‘vent site’ in the body of the specification and the claims. 34.Mr Norris submitted that the two terms were used interchangeably in both the specification and the claims. By way of support he pointed out that they were given the same reference number, ‘100’, in the figures. 35.Mr St Quintin referred me to Jarden Consumer Solutions (Europe) Ltd. v SEB SA [2014] EWCA Civ 1629; [2015] RPC 29 and the ruling by the Court of Appeal on the use – or misuse – of reference numerals in the construction of a patent claim. The starting point here is the judgment of Jacob LJ in Virgin Atlantic Airways Ltd v Premium Aircraft Interiors UK Ltd [2009] EWCA Civ 1062; [2010] RPC 8, in which Jacob LJ (who gave the judgment of the Court) said: “[17] … we do not think that numerals should influence the construction of the claim at all – they do not illustrate whether the inventor intended a wide or narrow meaning. The patentee is told by the rule that if he puts numerals into his claim they will not be used to limit it. If the court subsequently pays attention to the numbers to limit the claim that is simply not fair. And patentees would wisely refrain from inserting numbers in case they were used against them. That is not to say that numbers are pointless. They help a real reader orient himself at the stage when he is trying to get the general notion of what the patent is about. He can see where in the specific embodiment a particular claim element is, but no more. Once one comes to construe the claim, it must be construed as if the numbers were not part of it. To give an analogy, the numbers help you get the map the right way up, they do not help you to read it to find out exactly where you are.” 36.This was applied in Jarden. That case concerned reference numerals used in one of the figures of the patent: ‘2’ was used for the main body of a food fryer, ‘2A’ for the base, ‘2B’ for the side flank and ‘2C’ for the lid. At first instance the judge relied on this usage in support of his conclusion that on a correct construction of the claims the lid was part of the main body. The Court of Appeal ruled that it had been an impermissible use of reference numerals to construe the claims. 37.The Court of Appeal also explained a little further the distinction that had been drawn by Jacob LJ at the end of paragraph 17 of his judgment (quoted above) between using reference numbers to identify where an element of the claim is as against using them to construe the claim. Vos LJ (with whom Burnett LJ and Sir Timothy Lloyd agreed) said (at [32]): “The judge was not simply using the reference numerals to identify which parts in Figure 2 were being referred to in the claims or the specification, but was relying on the use of the particular identifiers … to conclude that the lid was to be regarded on a proper construction of the claims as part of the main body.” 38.Applying this to the present case, since a reader of the Patent is permitted to look at the figures to see which illustrated feature is marked ‘100’ in order to find out where the ‘bond site’ is to be found, and does the same thing by reference to ‘100’ to find out what the ‘vent site’ is, then inevitably the reader will infer, as a starting point anyway, that the bond site and the vent site are interchangeable terms for the same illustrated feature, subject to the rest of specification indicating otherwise. That could be broadly described as part of the construction of the claims. Nonetheless, I think it is a permissible use of reference numerals following what was said by the Court of Appeal in Virgin Atlantic and Jarden. 39.In any event, ignoring the common use of the reference number ‘100’ it seems to me that the two terms are plainly and repeatedly used interchangeably in both the body of the specification and in the claims of the Patent and I must treat them accordingly. 40.The equivalence of the two terms does not make it easier to be sure what they both mean. Taking first Joa’s construction, the most likely meaning of ‘bond/vent site’ is the region of bonding between the upper and lower layers, i.e. excluding the hole in the middle. This fits more comfortably with the term ‘bond site’ than ‘vent site’, but satisfies the requirement that an aperture larger than the bond site is formed through the elastic layer. It also defines the shape of the vent, so making ‘vent site’ at least a tenable name for the bonded region. 41.Turning to Mr Brinkley’s drawing, he marked the bond site as the region where the top and bottom layers fused, excluding the ‘donut’. Mr St Quintin amended this to include the donut. Again, the requirement that the aperture in the elastic layer should be larger than the bond or vent site is satisfied, but now the vent itself is peripheral to, and is of a size and shape which is not defined by the bond site. To my mind, this makes FDS’s construction of the ‘bond’ or ‘vent’ site less likely. 42.I now return to Mr St Quintin’s specific arguments in support of the FDS construction. (1)As I have already indicated, to my mind Mr Norris’s interpretation of the third sentence in paragraph 55 is the more natural construction of those words. (2)It is true that the specification nowhere spells out that the ultrasonic bonding will lead to holes in the inner and outer layers, but of itself that is neutral. The specification nowhere states that there will be no holes in those layers either. The reader must draw an inference from the whole of what is said. (3)The skilled person is told in paragraph 55 of the Patent, and it is now a requirement of the amended claims, that the aperture in the stretchable layer is larger than the bond site. On FDS’s construction the aperture is certainly larger than what either Mr St Quintin or Mr Brinkley called the bond site. However, as discussed above, Joa’s construction is also consistent with the same requirement. (4)I do not agree that the selection of materials for the three layers of the panel would be irrelevant to Joa’s construction. The skilled person is told – not as clearly as he might be, but in my view told nonetheless – that the energy required for the inner and outer layers to bond should be greater than that required to fracture the stretchable layer. Thus the stretchable layer will have disintegrated by the time the inner and outer layers fuse, allowing them to bond. The skilled person must therefore select his materials for the layers accordingly. (5)The vents have nothing to do with the contrast being drawn in paragraphs 50 and 51. In my view the use of ‘smooth and continuous’ would not be taken by the skilled person as providing any information about the construction of the vents. (6)Figure 6 of the Patent and the corresponding description of the side panels in the specification refer to the panels in their stretched configuration, as opposed to their contracted condition. The outer layer is smooth and continuous when stretched as opposed to being wrinkled when the panel is in relaxed form, see Fig.7. In this sense undoubtedly the panel displays a relatively smooth, continuous outer surface in the former state. As I have said, this has nothing to do with the vents. (7)Mr Brinkley’s view of what would amount to a process failure in the general context of ultrasonic bonding seems to me to be beside the point. A process failure would matter to the skilled person only if it interfered technically with the goal for which the Patent is aiming. The skilled person is told that there should be vents to make the side panels breathable. The skilled person would take that to mean that the vent should take the form of holes in the outer, inner and stretchable layers of the panel. The goal of breathability is thereby achieved. If, as Mr Brinkley implies, that will lead to side panels which are vulnerable to tearing, that is a commercial matter not a feature with which the claims are concerned. If Mr Brinkley were right, it would imply at most that the parties to this litigation are in contention over a commercially valueless invention. 43.Mr Norris had a further argument in support of Joa’s construction of the bond sites. He drew my attention to paragraph 29 of the Patent. This states that the backsheet may be breathable, implying that it need not be. If it is not, there must be holes in the backsheet where it is used for the side panels, otherwise the side panels could not be breathable. 44.Mr St Quintin referred me to paragraph 28 which defines ‘backsheet’ as covering at least the core of the diaper, shown as 36 in Fig. 2, although preferably further. He argued that it need not extend to the side panels and so Mr Norris’s argument fell away. Moreover, the function of the backsheet is to stop leaks, so one would not expect it to contain holes. 45.I do not agree. Paragraph 31 of the Patent makes it clear that whatever the definition in paragraph 28, the backsheet forms at least part of the side panels and may provide the outer layer of the side panels as a whole. Where it does, and where the backsheet is not of a material which is of itself breathable, there must be holes in it to make the side panels breathable. The prevention of leakage is not a primary consideration for the side panels, so holes will not be a concern on that score. The upshot is that the skilled person reading paragraphs 28, 29 and 31 would understand them to be consistent with Joa’s construction of the bond sites. They are not consistent with FDS’s construction because in certain instances the side panels would not be breathable. 46.I take the view that FDS’s construction of the bond sites (in both senses), apparently devised by Mr Brinkley on the basis of photographs of uncertain provenance, is a clever solution but not the form of bond site that the skilled person would understand to be disclosed by the Patent. In my view Joa’s construction is correct.