IP-2023-000104 - [2024] EWHC 233 (IPEC)

I consider first Mr Roberts’ assertion that in CCL’s system no previously stored measurements are deleted. CCL’s PPD is confidential so I will not quote it. However, I have to say that I find the relevant paragraphs, 14-17, opaque. I asked for clarification during the hearing and was not much enlightened. It does not follow that they are wrong or misleading. It does follow that they do not self-evidently support Mr Roberts’ assertion. At best they would require expert evidence to expand on what they say before the trial judge could safely conclude that Mr Roberts is correct.

On that ground alone, I take the view that this is not a case suitable for summary judgment.

My view is reinforced by the second point. The argument on equivalents will require the parties to state with appropriate clarity their respective cases on the inventive concept disclosed by the Patent, not so far done. Without in any sense making a finding now about the inventive concept, I think it will probably be along the lines of the idea that a process having stated steps taken from the characterising portion of claim 1 will provide an improved means of obtaining data for calculating slump in a concrete delivery truck. Although the defendants’ argument was not developed in this way by Mr Tregger, who is not a lawyer, I think it is fair to say that the point being made by the defendants is that expert evidence may lead the trial judge to conclude that deleting previously stored data plays no part in the inventive concept, as opposed to the invention as claimed.

I have no means of reaching any conclusion about the correct characterisation of the inventive concept and state no view save this: it seems to me that the defendants have a real, as opposed to fanciful, prospect of establishing the characterisation they propose, subject of course to a clearer PPD and to expert evidence. They therefore have a real prospect of persuading the trial judge that the CCL system infringes claim 1 as an equivalent.

The application for summary judgment is dismissed.

As indicated above, my finding on summary judgment means that the defendants have established that they have a real prospect of succeeding at trial in showing that CCL infringes the Patent.