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

The defendants argued that they had a real prospect of establishing that CCL’s system infringes claim 1 for two reasons, both turning largely on integer [D](iii). The first is a point of construction, namely whether “the stored pressure and speed measurements” to be erased if the speed and pressure are unstable requires erasure of all stored measurements or whether the erasure of just some would satisfy the integer. The defendants said that a purposive meaning must be given to the requirement which would suggest the latter. They filed evidence from Nathan Tregger who is Director of Data Analytics at GCP Applied Technologies Inc. He said that it would be beneficial to erase only some of the previously stored data, such as outliers, and that the skilled person would not expect the patentee to limit the scope of the Patent by requiring all stored data to be deleted. Thus, the defendants argued, the correct construction must turn on expert evidence at trial.

I need not explore this first argument because CCL, while disputing the defendants’ construction, was content for the purposes of this application to rely solely on what it called one fundamental difference between its own system and that of claim 1. So fundamental that unarguably its system cannot infringe.

CCL submitted that whether integer [D](iii) requires deletion of at least some or alternatively all previously stored measurements, CCL’s system cannot infringe because its operation is such that no previous measurements whatsoever are deleted in the event that speed and pressure are not stable.

The defendants had two responses to this. The first was that CCL’s claim that its system deletes no previous measurements is based solely on an assertion to that effect in evidence from Richard Roberts who is a partner at Potter Clarkson LLP, the solicitors acting for CCL in these proceedings. Unlike Mr Tregger, Mr Roberts has no background in this technical area, so his assertion can be given little weight. Even more to the point, if in the relevant circumstances CCL’s system deletes no previous measurements, that ought to be clear from the product and process description (PPD) filed by CCL and it is not.

The defendants’ second response, supported by Mr Tregger, concerned their proposed argument on infringement by equivalence. The system claimed in claim 1 deletes previously stored data (integer [D](iii)) and calculates a slump value using recently obtained data (integer [E]). The court at trial may be satisfied, having heard expert evidence, that the deletion of previously stored data is incidental and wholly or largely irrelevant to the way in which the Patent system works. Recent data is used and previously stored data is not, but deletion of old data is neither here nor there. That being so, a system which does not delete previously stored data would be an equivalent according to the analysis of the Supreme Court in Actavis UK Limited v Eli Lilly and Company [2017] UKSC 48.