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.