Case No. IP-2015-000205

23.Mr Norris submitted that paragraphs 12, 55 and 67 would lead the skilled person to understand that the ultrasonic bonding would cause the polymeric stretchable member to disintegrate and then the non-woven outer and inner layers to fuse together through the now disintegrated stretchable member. At each point of bonding a vent site must be created, through which air can pass from one side of the side panel to the other. In this regard Mr Norris pointed to two sentences in particular: paragraph 55 states that the process “creates holes or apertures at the bond sites and through the stretchable member” (emphasis added). Also, the two non-woven layers bond with each other “through the centre of the hole” in the stretchable layer. These, he said, imply that holes are also created in the inner and outer layers. It means that when fused those layers take the form of something like a grommet (although this is my term) around the vent. 24.Ms Becke produced a diagram of a bond site as taught by one of the cited items of prior art, as she contended that teaching to be. It serves equally well to illustrate the bond sites disclosed in the Patent as I have been trying to describe them: The elastomeric film layer is the stretchable layer of the claims. 25.Mr St Quintin submitted that this was not correct. He said that Mr Brinkley had accurately identified the structure of the bond sites, as the skilled person would understand them to be, in a sketch in his expert’s report: 26.Instead of the outer and inner layers fusing to form a grommet, they fuse into a thin single layer at the centre, impermeable to air, where the stretchable layer had disintegrated. Peripheral to the central single layer there is a thicker single fused layer, a ‘donut’. Mr St Quintin said that notwithstanding Mr Brinkley’s notation, in fact the fused layers of the central portion and the doughnut together form the bond site. Then further out there are separated inner and outer layers, but with an aperture between them where the stretchable layer has disintegrated. Beyond that the three layers exist in their original form, unaffected by the ultrasonic bonding. 27.Because the materials used for the inner and outer layers are chosen to be permeable to air in their unfused form, there is an air-permeable ring surrounding the bond site. This is the vent. 28.This diagram by Mr Brinkley appeared in a section of his report dealing with thermobonding, not ultrasonic bonding. Its initial function was as a diagram to illustrate Mr Brinkley’s interpretation of photographs supplied to him by FDS’s solicitors. He had been told by the solicitors that the photographs were taken from samples of a product made by a company called Ontex and that the Ontex product had been made in accordance with the Patent. 29.In the Order at the case management conference of 20 June 2016 the parties were given permission to give notice to the other of reliance on any photograph on which they intended to rely. I understand that FDS did give Joa notice of these photographs and they were included in the trial bundles. Unfortunately it seems that there was a belief on FDS’s side that there was no need to do anything further in order to have the photographs, and Mr Brinkley’s interpretation of them, accepted at face value. In this they were wrong. Joa did not attend the taking of the photographs. No evidence was given by whoever took them, there was no evidence regarding what was done, the precise details of the product photographed, from where it was obtained and how it was treated in order to create the photographs. Looking at them in an uninformed way, the photographs showed interesting patterns (not obviously like Mr Brinkley’s sketch) which told me nothing. Mr St Quintin, understandably, did not place any great reliance on them. 30.That did not mean that Mr Brinkley’s drawing, on which Mr St Quintin placed a great deal of reliance, was irrelevant. By the time of the trial it represented FDS’s case regarding the construction of a bond site on a correct interpretation of proposed claims 1 and 9. In that role it served a very useful purpose. 31.Mr St Quintin made several points in support of FDS’s interpretation of the bond site, supported he said by the description of the invention in the Patent specification, which I believe can fairly be summarised as follows: (1)Mr St Quintin responded to Mr Norris’s submission regarding the sentences in paragraph 55. One states that the bonding process creates holes or apertures at the bond sites and through the stretchable member. Mr St Quintin said it meant only that the ultrasonic bonding created holes located at the bond sites and that these holes were formed through the stretchable member. With regard to the requirement that the two non-woven layers bond with each other through the centre of the hole in the stretchable layer, this was consistent with FDS’s construction. (2)Whereas the specification expressly states that holes will be formed in the stretchable layer, there is no statement that holes will also be formed in the inner and outer layers. Rather, the Patent discloses that those layers are to be joined together at the bond sites through the elastic member, i.e. bonding where the elastic member used to be and in the process trapping the disintegrated elastic layer. (3)Paragraph 55 states that the hole created in the elastic member is larger than the bond site. This tells the skilled person that the hole extends outwardly beyond the bond site, as shown by Mr Brinkley’s diagram, and it is this which makes the annular vents. The hole in the elastic member is therefore larger than the bond site. By contrast, on Joa’s construction, the bond site and the hole are the same size, contrary to what the Patent discloses. (4)Paragraph 55 also states: “More particularly, the holes at the bond sites are created as a result of the selection of materials for the topsheet, backsheet and stretchable member and use of the ultrasonic bonding process.” On Joa’s construction the holes are not a result of taking any care in the selection of materials for the three layers. The skilled person need only apply ultrasonic bonding to any materials until he has made a hole in all three. (5)Paragraphs 50 and 51 of the specification describe the extended or stretched configuration of the side panels. The backsheet (the outer layer) described as displaying a smooth, continuous outer surface. This is irreconcilable with Joa’s construction which has holes in both inner and outer layers. A surface with holes cannot be smooth and continuous. (6)Figure 6 of the Patent also illustrates a surface which can accommodate unbroken printing, which would not be the case if the outer layer had holes. Fig. 6 illustrates a portion of the side panel in its stretched form, as opposed to its relaxed, wrinkled form which is shown in Fig. 7: (7)Mr Brinkley’s evidence was that at the priority date the skilled person would have thought that creating holes in layers of material being bonded by an ultrasonic bonding process would have been regarded as a process failure. The result would not be aesthetically pleasing and it would be prone to tearing when stretched. This cannot therefore be a result which the skilled person would infer from reading the Patent.