Case No. IP-2018-000199

which need joining together (19)with the head of the first member located against a face of one workpiece, (20)and rotation of said screw causing the or each flexible finger to expand radially outward (21)so the finger head on the or each finger engages a face of the other workpiece and causing the two workpieces to be drawn together as said second member slides towards the first member. 31.Claim 8 requires the planar surface of the finger heads of the second member, as shown in the Figures: “8. A removable blind fastener in accordance with any preceding claim, wherein each finger head provides a planar surface to engage with a planar surface of a workpiece face to prevent damage to a workpiece.” 32.Claim 16 further requires the head of the first member to be adapted to receive a tool to prevent it from rotating: “16. A removable blind fastener in accordance with any preceding claim, wherein the first member head is adapted to receive a tool to prevent it from rotating whilst said screw head is rotated.” 33.It is sufficient to characterise claim 18 as being a claim to the method of using a fastener of claim 1. The Skilled Person 34. Although there was no apparent dispute about the identity of the skilled person, that identity was not pinned down by either side. The skilled person is an engineering technician, typically employed in the aerospace industry, with practical experience in the use of temporary fasteners for product manufacture and maintenance. Common General Knowledge 35.The experts agreed that the skilled person’s common general knowledge would have encompassed a variety of both permanent and temporary fasteners. 36.In paragraph 6 of the Amended Grounds of Invalidity Airbus pleaded a list of matters which formed part of the common general knowledge. Save in relation to the E-Nut, the list was not challenged. 37.With regard to the E-Nut, Mr McKay said in his report that he had never come across it by the filing date and he was not challenged on this. In crossexamination Mr Jack accepted that it was a reasonable opinion that the E-Nut was not well known by 2008. I find that the E-Nut did not form part of the common general knowledge. Scope of the Claims 38.Since Actavis UK Ltd v Eli Lilly and Co [2017] UKSC 48 there have been two steps to ascertaining the scope of a patent claim. The first is to decide what the claim means in accordance with the general rules of construction of a document, see Actavis at [58] and Trump International Golf Club Scotland Ltd v Scottish Ministers [2015] UKSC 74, at [33]. This has sometimes been referred to as the “normal construction” of a claim. It is a purposive construction, the inventor’s purpose being ascertained from the description and the drawings as they would be understood by a person skilled in the art with the common general knowledge in mind, see Icescape Ltd v Ice-World International BV [2018] EWCA Civ 2219, at [60]. 39.If a product or process does not infringe the claim as a matter of normal construction, the analysis moves to the second question which is whether the product or process nonetheless falls within the scope of the claim because it varies from the invention according to the normal construction in a way or ways which is or are immaterial. Normal Construction of the Claims of the Patent Claim 1 Integer (1) – removable fastener 40.Temporary fasteners were part of the common general knowledge. An example of their use is given in the second paragraph of the Patent specification and was recognised by both experts. This is the fixing of a “skin panel” of an aircraft wing to the skeleton of the wing. The panel is held in the correct position relative to the skeleton by temporary fasteners. Permanent fasteners are then installed, after which the temporary fasteners are removed. 41.Both experts distinguished “fly-away” fasteners, which remain in place even when the aircraft enters use and “non-fly-away” fasteners which are removed before flight, generally shortly after they are no longer needed. 42.The claim does not characterise the fastener as being temporary, but “removable”. As a matter of ordinary English the two words do not mean the same thing. 43.Neither expert said that “removable” was a term of art. No doubt any fastener can be removed with the application of sufficient force but neither expert understood “removable” as used in the Patent to be meaningless on the ground that all fasteners are removable in that sense. Nor do I. 44.Mr McKay took the meaning of “removable” from the specification. He understood it to mean a temporary fastener of the type referred to in the second paragraph, which is entirely removed after it has completed its task of temporary fastening. A removable fastener is a non-fly-away fastener. That was Kwikbolt’s contention at trial. 45.Mr Jack countered this by saying in his report that the skilled person would have known of the E-Nut fasteners and that these were both fly-away and removable, implying that the skilled person would contemplate the possibility that fasteners could be both. But as I have said, in cross-examination he conceded that it would be reasonable to suppose that the E-Nut was not well known by 2008. Also, Mr McKay was not challenged on his evidence that the E-Nut is not removable because its sleeve insert remains secured to the workpiece. 46.Kwikbolt’s contention that a “removable” fastener is a non-fly-away fastener introduces an impermissible temporal element into claim 1. It is a product claim. To fall within the claim a fastener must satisfy the claim structurally, be suitable for use as a blind fastener and be suitable for removal. There is no requirement that the fastener must be removed before flight or at any other particular time. In principle, a fastener could be both fly-away and removable – if it were only ever removed during aircraft maintenance for instance. 47.Mr Jack spoke of what he called “key characteristics” of a removable fastener, namely the provision of dowelling support and not being of a nature to create foreign object damage. Mr McKay said that a removable fastener will not necessarily provide dowelling support and was not challenged about this. 48.A removable fastener may have this or that undesirable characteristic, but the presence of any of these does not perforce mean that it is not a removable fastener. Moreover, cross-examination of Mr Jack on this point oscillated between use of the terms “temporary” and “removable” without establishing whether a temporary fastener as understood at the priority date was the same thing as a removable fastener of the Patent. 49.There must be a sliding scale of difficulty in removing a fastener, with a point beyond which a skilled person would cease to regard it as removable. Neither expert addressed the meaning of “removeable” in exactly that way, nor was it put to either of them in that way. If there was a commonly held criterion by which the skilled person would have understood whether a fastener is removable, it did not emerge from the experts. 50.Airbus’s contention was that a fastener is removable if it can be removed without destroying the fastener. Mr Jack said in cross-examination that an essential requirement of a removable fastener was that it did not cause damage to the workpieces being clamped. 51.This contention and evidence provided the best approach to the meaning of “removable” that was available. I conclude that a fastener is removable within the meaning of the Patent if it is suitable for removal in its entirety from the workpieces which it is clamping without thereby causing significant damage either to the fastener or to the workpieces. Integer (2) – an elongate body 52.Neither expert said that “elongate” is a term of art. As a matter of ordinary English, “elongate” when used as an adjective means that the noun in relation to which it is used – the thing described – is longer than it is wide. The length of the first member of the Patent is clearly the dimension parallel with the axis of the fastener. The width is the dimension perpendicular to the length, being the diameter of the first body if it is cylindrical. According to that simple meaning, integer (2) would require the length of the first member to be greater than its width. Kwikbolt endorsed this construction. 53.Airbus’s expert, Mr Jack, said in his first report that the skilled person would understand from the Figures of the Patent that the first member must be substantially longer than it is wide. In cross-examination he said this meant that it must be three to four times longer than it is wide. The only justification for this was Mr Jack’s impression of the Figures. 54.The Figures of the Patent show an embodiment of the invention. The invention is not what is shown in the Figures but what is claimed in the claims. Moreover, the Figures are diagrammatic, not scale drawings. The skilled person would not expect to glean relative dimensions, even of the embodiment shown, with any accuracy from the Figures. 55.In a letter dated 3 February 2021, 6 days before the trial, Airbus’s solicitors wrote to Kwikbolt’s solicitors proposing a new construction of “elongate”: “… our contention [is] that ‘elongate’ within the meaning of the Patent’s claim 1 means that the shape of the body of the first member is such as to allow that body to be inserted into the holes in the workpieces. That is not the case with the Centrix Free Spin Fasteners (whether or not they are variants including the optional end cap).” 56.This idea was too new for Mr Jack to have said anything about it, but it was repeated in Airbus’s skeleton. In fact, the skeleton developed the argument by saying that the first member sits within both of the holes in the workpieces to provide dowelling support. 57.There is nothing in the specification about a need for dowelling support and elongate is used to characterise the body of both the first and second member. 58.I see no reason for supposing that “elongate” is to be given any specific or narrow meaning. It should be given its ordinary English meaning. Its use in claim 1 means only that the first and second members must each be longer than it is wide. Integer (3) – a head at one end 59.The first member must have a head. Mr Jack said in his report that as a matter of normal engineering language a “head” of a component such as a bolt or screw is an element that has a larger diameter than the body of the component, such that it extends from the body in order to provide a bearing surface. The latter means an area of contact between two elements at which purchase or pressure may be applied. In the context of the Patent the head of the first member bears upon the left hand workpiece (as shown in the Figures) and must therefore be at the end of the first member proximal to the technician. 60.Mr McKay agreed with Mr Jack to the extent that the head of the first member must be suitable for locating against a face of one workpiece, as required by integer 1(19). It could be more than one workpiece and no particular workpiece is specified. Mr McKay also said that the diameter of the head must be greater than that of the aperture of the workpiece against which it is located. Beyond that, so far as Mr McKay was concerned, the claim imposes none of the more detailed requirements suggested by Mr Jack. 61.I agree with Mr McKay. I can see no support in the claim or in the specification for the detailed meaning of integer 1(3) adopted by Mr Jack. I did not understand Mr Jack to be saying that “head” is a strict term of art such that the head of any component must invariably have a larger diameter than that of the component’s body. If he was saying that, he pointed to no documentary support for head as a term of art and Mr McKay did not endorse that idea. 62.A head will provide a bearing surface; in the case of a component such as a bolt or a screw, because of the way they are generally used one would expect the head to be larger than the body of the bolt or screw so that the head can provide a bearing surface. The purpose of the head of the first member of the Patent, as both experts agreed, was to bear upon a workpiece. It must therefore be larger in diameter than the aperture of the workpiece against which it bears. In the context of the claim, the relative diameter of the head and the rest of the first member is of no purposive significance. In my view, therefore, the skilled person would not interpret the term “head” to require that its diameter be greater than that of any other particular part of the first member. 63.The head must be at one end of the first member. The claim does not expressly specify which end. For the reasons given above, the head is defined by its purpose: to bear against the face of a workpiece. Whichever part of the first member does that is the head. Integer (8) – a screw head adjacent the first member head 64.The argument was about the meaning of “adjacent”, which is not a term of art. As a matter of ordinary English, it means adjoining or bordering but not necessarily touching. Kwikbolt’s written case in closing was this: “The skilled person would therefore appreciate the adjacency of the screw head to the first member head as opposed to the screw head being proximate to the finger ends of the second member. This is wholly consistent with the purpose of the screw head being near to the first member head, so as to allow the fastener to act as a blind fastener – i.e. one that can be inserted and operated from one side.” 65.I do not find this clear, but it appears to be a submission that all this integer requires is that the screw head is at the end of the fastener away from the flexible fingers so that it is accessible. Mr Vanhegan submitted that Mr Jack had agreed with this interpretation of “adjacent” in cross-examination. He did not. He went no further than agreeing that the screw head must be on the upper side of the workpieces and at some distance from the heads of the flexible fingers. That is self-evidently correct but does not assist in the meaning of “adjacent” in this integer. This is the relevant passage of crossexamination: “Q. Yes. The screw head, because it is on the top part of the panels, it must be located away from the finger member heads of the collet? A. Yes, sir. Q. Because they have to be on the other side of the panels; correct? A. Yes, sir, that is correct. Q. So the screw member head has to be distant from the finger member heads; correct? A. Some distance, yes, sir. Q. But it must be adjacent to the first member head? A. Adjacent means touching? Or on the same side? Q. On the same side; correct? A. Yes, sir.” 66.It was Mr Jack who asked Mr Vanhegan what he meant by “adjacent”. Counsel said he meant on the same side of the panels as the first member heads. At most, Mr Jack was agreeing that the screw member head must be on the same side of the workpieces as the first member head. That is clearly correct, otherwise the fastener would not be blind. This says nothing about the meaning of “adjacent”. 67.It must also be borne in mind that this integer of claim 1 positions the screw head by reference to the head of the first member, not by reference to one end of the fastener as a whole. 68.Airbus argued that it was self-evident that the screw head must be at the same end of the fastener as the first member head. Therefore, Mr Ward submitted, “adjacent” must mean more than that: it requires that the two heads be in contact. I think it is a mistake to assume that every integer of a patent claim must invariably go beyond stating the obvious. Even assuming this one does, it does not follow that the screw head is in contact with the first member head. 69.Mr McKay was cross-examined on this topic by reference to a diagram of the Centrix fastener in Airbus’s product and process description. He agreed that the location of the screw head of the Centrix Fastener – at which end of the first member it will be located – is fundamental to the way in which these particular fasteners work. That may be right, but claim 1 cannot be construed by reference to the Centrix Fastener. 70.In my view, “adjacent” must be interpreted according to normal usage of the word. The screw head must adjoin the head end of the first member but they need not touch. Thus, the screw head must adjoin the end of the first member which bears against the workpiece. Integers (17)-(19) – fastener comprising a unit is insertable and removable through an aperture in each of two workpieces 71.The debate concerned what was meant by “in use, the fastener comprising a unit of the first member, second member and screw member” being insertable and removable through an aperture in each of the two workpieces. No direct guide is given in the specification as to what this means. 72.Mr Jack said that each member must in use penetrate the aperture in each of the two workpieces. However, as Mr McKay said, in no embodiment of the Patent is the first member inserted into both workpieces. 73.Some meaning must be given to the requirement that the fastener, in use, is insertable and removable as a unit. I agree with Mr Jack that this can be understood by the way in which the fastener is shown to operate in the Patent. The three members acting as a unit are shown to be inserted and removed through an aperture in each of the two workpieces: “As shown in Figures 3A and 3B, fastener 1 can be inserted through an aperture 40A in workpiece 40 and through an aperture 50A in workpiece 50, to join the two workpieces together. … “Rotation of the screw member 30 in the other direction slides the second member 20 away from the first member and allows the flexible fingers 22A, 22B, 22C, 2D to move radially inwards again back into the position shown in Figure 3A. Fastener 1 can then be withdrawn from the aperture 40A, 50A in workpieces 40, 50.” 74.There are three aspects to this. First, it does not matter whether one or other of the three members viewed individually is insertable or removable through an aperture in both workpieces. It was common ground that the head of the first member must sit against the surface of the left hand workpiece. Therefore not all of the unit will pass through the aperture in the upper workpiece and indeed not all of the unit will pass through the aperture of the lower workpiece either. 75.Secondly, although the three members move relative to one another in use, during insertion or removal from the apertures in the workpieces they go in or come out, as the case may be, as a single unit – in other words they do not go in or come out separately. 76.Thirdly, the fastener as an entire unit, the whole thing, must be insertable and removable, in particular removable according to the meaning of that term which I have adopted above. Claim 16 – the first member head is adapted to receive a tool 77.I did not detect any difference between the experts after cross-examination as to the construction of this claim and I think it presents no real difficulty. When the screw member is rotated, this generates a torque in the second member, transferred to the first member. The first member must be prevented from rotating with the screw, otherwise the rotation of the screw would not cause the second member to slide towards the first member and the fingers of the second member would not be biased radially outwards. Claim 16 requires that the first member head is adapted to receive a tool to prevent it rotating. 78.Airbus argued that the word “receive” implies a requirement that the first member head must be suitable for having the tool inserted into it. I think that Airbus’s expert, Mr Jack, summarised the position correctly in his first report: “The Skilled Person would understand this integer to mean that a tool is to be applied to the head of the first member to hold it in place. As described at paragraph 6.11 above, the Patent provides the example of having slots in the head 12 of the first member 10 – insertion of a tool (like a screwdriver) into these slots would provide anti-rotation means.” 79.The purpose of this integer is to provide a means of holding the head of the first member in place. The first member head must therefore be adapted to receive a tool in the sense of being adapted to engage a tool such that the rotation of the first member can be restrained. As Mr Jack says, the Patent provides an example of slots in the head to receive a screwdriver, but it is no more than an example.