Conclusion
on validity 54.Claim 1 does not lack inventive step over either Krone or Hubbard. The Patent is valid. Infringement The law 55. The law on the scope of a patent claim was explained by the Supreme Court in Actavis UK Ltd v Eli Lilly & Co [2017] UKSC 48; [2017] RPC 21 and the Court of Appeal in Icescape Limited v Ice-World International BV [2018] EWCA Civ 2219; [2019] FSR 5. I discussed those judgments in Regen Lab SA v Estar Medical Ltd [2019] EWHC 63 (Pat) at [199]-[224]. Normal construction 56.Using the Cassellie product, the pipe is locked to the plate by tightening the nuts against the plate. Before they are tightened the nuts are neither in nor on the plate. The nuts cannot be the locking member. 57.Mr Campbell argued that alternatively the screw thread on the intermediary pipe of the Cassellie product was the locking member and the nuts were the locking elements. I do not accept this for two reasons. First, claim 1 requires that the locking member is provided in or on the body of the mounting member – the plate. On a straightforward reading of claim 1 the screw thread of the Cassellie product is not provided on the body of the plate; it is provided on the body of the fluid pipe. Secondly, the locking member must be in or on the plate. Part of the screw thread is within the aperture in use but not the operative parts on which the nuts are tightened. These necessarily lie outside the plate. 58.In my view, on a normal construction of clam 1 the use of the Cassellie product involves a method that lacks integer (e) and therefore also (g). Equivalence and the inventive concept 59.Mr Campbell identified the inventive concept or core this way: “The generally plate-like mounting member which determines where the pipes are required to be fixed, in combination with the locking members and element which are used to grip and lock the pipe into position in relation to the plate.” 60.Mr Hill submitted his statement of the inventive concept orally (I have changed some of the tenses for consistency): “Taking a fluid pipe or pipes extending outwardly of a wall and locking it or them into position against axial movement by means of a locking member provided in or on the mounting member and locking the locking member into position by tightening the locking element on the locking member.” 61.It is clear that the inventive concept is a development over both the known UK method of joining the pipe part directly to the inlet fittings of the appliance and the Continental Plate as explained in the specification. I would identify the inventive concept as follows (using the example of two pipes): The idea of using a plate (mounting member) to install a fluid-using appliance by securing the plate to the wall, receiving the fluid pipes extending out of the wall through apertures in the plate and then using a locking means to lock the pipes to the plate. 62.The inventive concept did not include a specific type of locking means. A collet, the means referred to in the Patent, would not have been new to the skilled person. The specification contemplated the possibility of other locking means. Any suitable locking means known to the skilled person would have been treated as an alternative way of implementing the locking part of the inventive concept, but no particular locking means would have been seen as part of the inventive concept. 63.Three direct results are achieved by the inventive concept. First, the pipes are fixed to the plate in that they cannot be moved axially. Secondly, they are fixed in positions relative to each other. Thirdly, the pipes extend outwardly from the apertures of the plate. 64.The advantages consequent upon these results combine those of the Continental Plate with those of the standard UK practice. They are (i) the plate provides a rigid mounting for the appliance, (ii) the spacing between the pipes is set (if there are more than one), (iii) joining the pipes to the inlet fittings is easier due to no axial movement of the pipes and (iv) the pipes may be joined directly to the inlet fittings of the appliance, so the joint remains accessible.
Whether the Cassellie method is a variant within the scope of claim 1
Improver Question (1)
65.The first question is whether the Cassellie variant in use achieves substantially the same result in substantially the same way as the inventive concept. 66.All three direct results identified above are achieved using the Cassellie product. They are achieved in the same way, namely by securing the plate to the wall, passing the fluid pipes through the apertures of the plate and then using a locking means to lock the pipes to the plate. 67.Mr Hill submitted that Cassellie’s system did not provide advantage (iv) because there would be an inaccessible joint (or joints) between the water pipe in the wall and the start of the intermediary pipe. He referred to the top of page 2 of the Patent, quoted in paragraph 17 above. A problem with the Continental Plate was that once installed there was an inaccessible joint between the end of the fluid pipe and the plate. Likewise, Mr Hill argued, using the Cassellie product would result in a similarly inaccessible joint in the wall. Therefore using the Cassellie product did not achieve the same result as the inventive concept. 68.I disagree. Whether using the inventive concept or the Cassellie product, there is no joint between the end of the fluid pipe and the plate. The disadvantage discussed at the top of page 2 of the Patent can apply to neither. The relevant advantage of the inventive concept is that the fluid pipe is joined directly to the appliance and it is this joint which advantageously remains accessible after the shower has been installed. That advantage also obtains using the Cassellie product. 69.Cassellie’s argument raises the question whether an advantage consequent upon the use of an inventive concept is invariably a ‘result’ achieved by the inventive concept as contemplated by Lord Neuberger in Actavis, in particular at paragraph 66(i) and (ii), and if so whether the variant must achieve all the advantages of the inventive concept in substantial part. Given my finding that Cassellie has directed its argument to the wrong joint, I need take this no further. 70.The answer to the first Improver question is yes.
Improver Questions (2) and (3)
71. Mr Hill’s arguments on equivalence were focussed on the first question. He did not submit that either the second or third question assisted his case on the scope of claim 1 if the answer to the first question was yes. Conclusion on equivalence 72. Use of the Cassellie product to install a shower is a variant method falling within the scope of claim 1. Conclusion 73. The Patent is valid and infringed.