PRODUCT MANAGEMENT, QUALITY MANAGEMENT & INTELLECTUAL PROPERTY

SECTION A

I attended Worcester Crown Court on Wednesday 11^th February 2009. I arrived at the Court at approximately 1.30pm. Upon arriving I viewed the hearing lists on both the boards and the monitors. No specific times were given for any particular hearings so I asked at the court desk whether there were any hearings which were available for the public to observe. The clerk advised that two hearings were shortly due to commence and the public could observe in both.
Upon arrival in the public gallery the barristers and solicitors for both the prosecution and the defence were already present in the courtroom. The solicitors were seated behind the barristers. The defendant was not visible from the public gallery as he was situated under the public gallery balcony. The court room was asked to rise and the judge entered. The judge sat at the top end of the courtroom and was situated in a raised position compared to the rest of the court room. The judge asked for the jury to be brought in. The court usher led the 12 jurors in and they were seated along the one side of the court room in two rows.
The case which I observed was the part trial of a young man who had allegedly raped a young woman following a night out in town. The hearing began with the defence barrister calling his first witness to the stand who was one of the defendants’ friends who had been out in town with him on the evening that the alleged rape took place. The witness was brought in by the court usher and taken to the witness stand. He was then required to hold the bible and take oath.
The witness was firstly examined by the defence Barrister and then cross examined by the prosecution Barrister. Once the cross examination had finished, the judge himself asked the witness some questions. The witness was then released. The defence barrister called six witnesses in all, three of them being cross examined by the prosecution whilst three only examined by the defence. Only the first witness had been with the defendant on the night which the alleged rape took place, the other witnesses were character witnesses and consisted of family friends, neighbours and the defendants employer. There was a further occasion where the judge asked a witness some questions. During this time, members of the jury were sat listening, some taking notes whilst others not. All of the witnesses came and sat in the public gallery after they had finished giving their evidence.
After all the witnesses had been examined, the judge spoke to the jury and advised that the hearing would be adjourned. He advised that the following day they would hear both the prosecution and defences’ closing speeches and then he himself would sum up the case to the jury. The jury would then be required to reach a verdict. The hearing was then adjourned and the judge left the court room. I left the Court at approximately 3.45pm.

SECTION B

Haberman & Anr v. Jackel International [1999] FSR 683
The Act of Parliament which was discussed in the above case was The Patent Act 1977 and in particular Section 1(1) of that Act. The case concerned a patent concerning the design of a leak proof trainer cup used in the process of weaning young babies off their mothers’ nipple or away from a feeding bottle. The defendant, Jackel International, marketed a cup which the Claimant believed to use the same valve design as her own. The claimant therefore brought an infringement action against the defendant who in turn sought to challenge the validity of the claimant’s patent.
Under Section 1(1) of the Patents Act (“the Act”), a patent will be valid where (a) the invention is new; (b) it involves an inventive step; (c) it is capable of industrial application and (d) the grant of a patent for it is not excluded by Section 1(2) or 1(3) of the Act. The case centred around Section 1(1)(a) but more particularly Section 1(1)(b) and whether the claimant’s development involved an inventive step. The defendant argued that the claimant’s idea was “blindingly obvious” (Laddie LJ at 28) and that no invention was involved since numerous other manufacturers had attempted to produce such cups many years prior to the claimant’s application for a patent. The defendant argued that in view of such common general knowledge which existed at the priority date, i.e. the date of filing of the first application, the claimant’s invention had therefore been previously anticipated by others and was therefore not inventive and thus not valid.
However, the Courts approach was different. Laddie LJ rejected the defendant’s contentions that the patent has been anticipated and went on to focus on the issue of obviousness. At 32 he suggested that in determining whether a development is obvious, several matters are relevant: (a) the problem which the patent addresses; (b) how long that problem has existed; (c) how significant the problem is seen to be; (d) how widely known the problem is and how many are likely to be seeking a solution; (e) what prior art would be likely to be known to all or most of those who would be expected to be involved in finding a solution; (f) what other solutions are put forward in the period leading up to the publication of the patentee’s development; (g) to what extent there are factors which would hold back the exploitation of the solution even if it is technically obvious; (h) how well the patentee’s development is received; and (i) to what extent it can be shown that the whole or much of the commercial success is due to the technical merits of the development. These factors were said not to be exhaustive but pointed one way or another whether the idea was obvious and thus whether there was an inventive step.
In respect of the case in question, the court took the approach that the development of a leak free training cup had existed for a very long time. There were numerous companies involved in the trade who were all striving to produce a leak proof cup and a variety of solutions had been put forward. However as his Lordship stated at 34, “although the objective of making a leak proof cup was known, by and large it had not been achieved.” Numerous efforts were made to find a solution to the problem, many of which were of a complicated nature whilst some required adult intervention to in order to achieve the sought after outcome successfully.
In view that the problem had existed for a long time and “the industry as a whole appears to have wanted to produce spill proof cups” (Laddie LJ at 34), it could clearly be interpreted that there had been a “long felt want” (Bainbridge 2002, pg. 354) for such a development and this inevitably lead to the product being “a remarkable success” (Laddie LJ at 36) when the claimant produced it. In looking at what prior art would be likely to be known to others who would be expected to be involved in finding a solution, the court considered what would have occurred to the hypothetical skilled, but uninventive, worker in that particular art and concluded that the variety of solutions put forward by others which were unsuccessful clearly made the development not obvious. “Where there are numerous attempts to find a solution to a known problem and those developed before the claimed invention are significantly inferior to it as a solution to the problem, this fact is almost conclusive of non-obviousness…If the claimed invention is a significant commercial success, this reinforces that view” (Bainbridge, 2002, p. 354). This was reinforced by Laddie LJ at 45, “had it really been obvious…it would have been found by others earlier…It was there under their very noses…It is not obvious.” The court therefore held that the patent was valid.
The case clearly illustrates the importance of addressing intellectual property issues at the earliest opportunity in new product development. The claimants’ product used raw materials which were all readily available and although the step she took was simple, it was extremely effective and ultimately successful. As was stated in an earlier case by Hoffman LJ in Biogen Inc. v. Medeva plc [1997] RPC 1, 34, “sometimes it is the idea of using established techniques to do something which no one had previously thought of doing…the inventive step will be doing the new thing.” Had the claimant not applied for the patent when she did, in light of the numerous other manufacturers attempting to find a solution to the problem, the development may have been ultimately discovered by another. Her inventiveness would then have gone unrewarded. It was the application for the patent which enabled the claimant to be rewarded for her inventiveness and allowed her to reap the benefits from the commercial success which the development produced. As Laddie LJ held, at 45, “the patent discloses something significantly inventive to deserve the grant of a monopoly.”

SECTION C