Validity
39.The Patent was alleged to lack inventive step over two cited disclosures: (1) German Patent No. 42 25 263 C1 (‘Krone’), and (2) US Patent No. 4,550,451 (‘Hubbard’). 40.Allegations that the invention of the Patent lacks inventive step over four identified items of common general knowledge were not pursued. The law 41. The law on inventive step was set out by the Court of Appeal in MedImmune Ltd v Novartis Pharmaceuticals UK Ltd [2012] EWCA Civ 1234; [2013] RPC 27, at [87][94] and in Hospira UK Ltd v Genentech Inc [2016] EWCA Civ 780; [2017] RPC 13, at [9]-[13], in both of which reference was made to Pozzoli SpA v BDMO SA [2007] EWHC 1372 (Ch); [2007] FSR 36. No issue of law arose in the present case. Krone 42.Krone discloses a wall mounting for fastening cables and the like, including hoses. The device is inserted into a hole in the wall. It has spring clamps which are inwardly pressed as the device is passed from the near side of the wall and though the wall. The spring clamps spring out when they pass beyond the opposite side of the wall, forming a collar resting on the opposite side of the wall. The cable or hose is passed through a cap nut, then through the core of the device and thus through the wall. The cap nut is screwed on external threading surrounding the core of the device until it rests against the near side of the wall, fixing the device to the wall. Further tightening of the nut causes segments of a collet in the device to press radially inwardly on the cable or hose, clamping it to the device and thus to the wall. 43.No mounting plate is mentioned in Krone. Mr Walsh said that use of a flat mounting plate was part of the common general knowledge and the skilled person would expect Krone to work with a mounting plate. But he spoke of reasons (plural) why Krone would not be used in that way and identified one of them. He called these reasons ‘commercial’, but the one identified was plainly technical. It was that the installer would not have access to the rear of the mounting plate, which is necessary to hold the near side of the Krone device when it is fastened. He said that using the Krone device with a plate would be possible, but inconvenient. He concluded that the Patent discloses an inventive step over Krone. 44.Mr Mace thought that Krone offered a complex solution to fixing a pipe to a wall and so would not be of interest to a plumber who would have known of simpler means. There was no teaching of a plate. Krone was concerned with fixing cable and hoses, which are flexible. Fixing these to a plate would not provide a rigid mounting, an advantage of the Patent. He did not believe that using a plate in the manner claimed in the Patent would have been obvious to a skilled person who had read Krone. 45.On that evidence I find that the invention of claim 1 has an inventive step over Krone. Hubbard 46.Hubbard discloses a device for locating and supporting plumbing pipes. It consists of a strap, typically of metal or plastic, which has holes along its length to receive pipes. The strap is nailed to studs in the wall or is otherwise secured to the wall. The holes receiving the pipes prevent lateral or vertical movement. Axial movement is prevented by welding or soldering the pipes to the strap if both are made of metal, or if one or either is made of plastic using cylindrical plastic inserts in the holes of the strap. The insert is a collet with a tapering diameter such that when a pipe is inserted, the sides of the insert push outwards to secure the insert and pipe to the strap. The pipes are thus wedged in the holes. 47.Mr Mace thought that the welding or soldering option would be of no interest to a plumber because they did not carry welding or soldering tools. It was also not accepted practice to use welding or soldering to fix metal pipes in place because it may weaken or compromise the materials of the pipe. He also thought that the wedging option would be regarded as unattractive to the skilled person because a pipe that can be wedged in can also be disturbed from its position. 48.No locking member or locking element is disclosed in Hubbard. Mr Mace thought that it would not have been obvious to the skilled person to adapt Hubbard in such a way as to introduce the locking member and locking element as claimed in the Patent. 49.Mr Walsh agreed that the welding or soldering option was not part of a plumber’s skill set. Like Mr Mace he thought that the skilled person would have recognised that using inserts was not secure because over time vibration of the pipes, or thermal expansion and contraction, would cause them to come loose. In one section of his report Mr Walsh said that the skilled person would have remedied the difficulty by using a product called the ‘Conex fitting’ and that the skilled person would have regarded the Conex fitting to be a locking member on the mounting plate. Mr Walsh concluded in this part of his report that using the Conex fitting would have been obvious. 50.On the other hand, in section 12 of his report, in which he summarised all his various conclusions, he said that the Patent had made an inventive step over Hubbard. Section 12, the whole of it, was the section disclaimed by Mr Walsh during his examination-inchief. 51.Mr Campbell explored with Mr Walsh the contradiction between the two sections of his report regarding Hubbard. Mr Walsh’s final stated position was that the Patent had made an inventive step over Hubbard. By implication his ultimate view was that it would not have been obvious to turn to the Conex fitting and install it into a Hubbard strap. 52.I have to say that I would not have had much faith in Mr Walsh’s view on what was or was not obvious whatever his view had finally turned out to be. I can attach no weight to his evidence about the Conex fitting or inventive step generally. I must rely on what Mr Mace said. 53.I conclude that it was not obvious to the skilled person in November 2000 to modify the Hubbard device such that it would be used with a locking member and element according to the method of claim 1.
Conclusion on validity 54.Claim 1 does not lack inventive step over either Krone or Hubbard. The Patent is valid.