Jarden Consumer Solutions (Europe) Ltd v SEB SA & Anor

Again, the judge has described the Vogt patent in some detail at paragraphs 83-88, and I do not propose to repeat that exercise in this judgment. It discloses an invention that “allows … removal of the constantly arising steam, so that dry, seared foods are the result” with the “mechanical turning of crumbly foods [making] it unnecessary to constantly watch the cooking process”.

The following figures 1a and 1b show the preferred embodiment as follows:-

So far as heating and steam escape is concerned, the preferred embodiment is described as follows:-

“The container (1) resembles a pan or pot, preferably Teflon-coated on the inside, i.e., a vessel coated with tetrafluorethylene to contain the food being cooked. In use, it is placed on a hotplate (2) with several kilowatts of heating power. For easy handling of the vessel, two handles (3, 3) are provided. In the vessel are rotating scrapers (4, 4), fastened to the shaft (5) rotating at several revolutions per minute, which slide directly on the bottom of the vessel (1), somewhat slanting. These scrapers (4, 4) move the food (13) both in the radial direction (arrows) and also vertically. The shaft (5), in turn, is turned by a reduction gearing (6), which is placed in rotation by the motor (7). As the figure shows, two pinions are provided in order to reduce appropriately the high speed of the motor (7). Directly located on the shaft of the motor (7) are the blades of a fan (8), which draws in fresh air from a gap between the motor flange and the housing, heats it by a heating element (9), and transports it to the surface of the food being cooked (arrow direction 1), so as to blow away the steam arising there. The steam-saturated air escapes through openings, which as shown in Fig. 1b are located between the supporting and holding parts (10, 10) of the top structure, and motor (7), fan (8) and reduction gearing (6).”

Vogt then describes its mode of operation as follows:-

“The device is placed on the hotplate (2), where its bottom is heated. After adding grease, such as butter or bacon fat, if required, the crumbly food is added. In the example, this can be pieces of potato around a cubic centimeter in size, prepared from raw potatoes. At the same time, after inserting the plug (11) into the wall outlet, motor, fan and scraper are placed in motion and the heating element (9) starts to glow. The food is now moved radially and also lifted constantly from the bottom of the vessel, so that different parts always arrive at the heated bottom. At the same time, thanks to the fan (8), the air heated by the heating element (9) begins to flow over the material, both heating it and removing the escaping steam from it. The heating of the food can also be further promoted by mounting radiant heaters on the lid …”

Vogt’s relevant claims are as follows:-

“1.) Method for cooking of crumbly or semisolid foods (potatoes, meat balls, egg dishes, toast and so on) while supplying the cooking heat from heated top or bottom layers, characterized in that food pieces are constantly mechanically tossed during the cooking process and, if desired, the resulting steam is also removed from them.

2.) Device to carry out the method per claim 1, characterized in that a panlike or potlike vessel, preferably coated with Teflon on the inside, is provided with rotating scrapers, lifters, or tossing elements and a fan.

…

5.)

Device according to claim 1 and 2, characterized in that heating elements are provided in the air stream.

6.)

Device according to one of the preceding claims, characterized in that electric radiant heaters are arranged in the lower part of the top piece supporting the drive elements.”

The proper approach to the construction of a Patent was common ground, save in relation to the use of reference numerals. It is sufficient to cite first from Jacob LJ’s abbreviated summary of the principles in the Court of Appeal in Virgin Atlantic Airways Ltd v. Premium Aircraft Interiors UK Ltd [2009] EWCA Civ 1062, [2010]

Article 69 of the European Patent Convention (“EPC”) provides that the claims determine the extent of protection of a patent, but the description and drawings are used to interpret the claims.

Rule 43(6) of the Implementing Regulations to the EPC provides that: “[e]xcept where absolutely necessary, claims shall not rely on references to the description or drawings in specifying the technical features of the invention.”

Rule 43(7) of the Implementing Regulations to the EPC provides that: “where the European patent application contains drawings including reference signs, the technical features specified in the claims shall preferably be followed by such reference signs relating to these features, placed in parenthesis, if the intelligibility of the claim can thereby be increased. These reference signs shall not be construed as limiting the claim”.

In Virgin Atlantic, Jacob LJ said this about reference numerals in relation to the claims in a patent at paragraph 17:-

“In particular, we do not think that numerals should influence the construction of the claim at all – they do not illustrate whether the inventor intended a wide or narrow meaning. The patentee is told by the rule that if he puts numerals into his claim they will not be used to limit it. If the court subsequently pays attention to the numbers to limit the claim that is simply not fair. And patentees would wisely refrain from inserting numbers in case they were used against them. That is not to say that numbers are pointless. They help a real reader orient himself at the stage when is trying to get the general notion of what the patent is about. He can see where in the specific embodiment a particular claim element is, but no more. Once one comes to construe the claim, it must be construed as if the numbers were not part of it. To give an analogy, the numbers help you get the map the right way up, they do not help you read it to find out exactly where you are.”

On the main construction question, the judge gave his reasons for preferring SEB’s construction at paragraph 81 of his judgment. The judge specifically endorsed the reasons given by SEB’s counsel which he had set out at paragraphs 72-75 of his judgment. The judge concluded that the skilled team would understand the patentee to be using the words “main body” in the context of integer 9[B] as including the lid as a part of it, albeit an optional and distinct part, so that claim 9 extended to an arrangement where the main heater was mounted on the lid. His reasons can be summarised as follows:-

In relation to the construction of claim 3[C] requiring that the “lid together with the main body form a substantially sealed chamber around the food”, the judge held that

The judge’s holdings on the disclosure of Vogt are not challenged on appeal. I shall set out his conclusions briefly, however, since they formed the basis of his decision on the obviousness of claim 10 over Vogt. The judge decided that:-

Vogt did not clearly disclose that its top structure was removable.

Finally, the judge decided (of relevance to the appeal) that the ‘heater means’ claims 10, 11 and 13 were not obvious over Vogt. His reasoning can be summarised as follows:-

Mr Andrew Lykiardopoulos QC, leading counsel for Jarden, made the following submissions in support of his construction of the Patent:-

Mr Benet Brandreth, counsel for SEB, supported the judge’s reasons. In his succinct and well directed oral submissions, he sought to amplify and explain those reasons. He started by submitting that the Patent is about a device that can achieve a novel method of cooking that achieves a particular result. The Patent explains that there are many possible ways of doing so. The novel method in question is to use a flow of heat to replicate the deep fat frying effect of a bath of oil.

Mr Brandreth emphasised that the use of the numerals was never SEB’s primary argument. Indeed, SEB had urged the judge to follow Jacob LJ’s injunction in Virgin Atlantic. Instead, SEB’s primary argument had always been that the clear language of the Patent contemplates that the main body includes a lid, where one is present (i.e. not in claim 1). The distinction is made between the main body and the lid in claims 3 and 4, because those claims are specifically concerned with the relationship between the main body and the lid (first, as to opening, and secondly as to hinging). He relied particularly on the scheme of paragraphs 31 to 34 of the specification showing that the

On Jarden’s second main point as to the meaning of “main heater means”, Mr Brandreth submitted that paragraph 84 of the specification is the central provision. That paragraph demonstrates that the term “main heater means” “denotes a heater means which can of itself provide at least most of the contribution of the heat for cooking”. The “main heater means” is not, therefore, to be understood as a physical thing, but as a system of directing heat at the food to cook it. It is central to the invention of the Patent. The main heater means is a reference to whatever components are chosen by the designer to achieve the specified purpose. Whilst the main heater means is necessarily implemented by specific components, they could all be in the lid or partly in the lid and partly in the body, but the key point is that they achieve the necessary flow of heat being directed at the food broadly from above it.

In essence, Mr Brandreth submitted that since part of the main heater means was inevitably going to be in the lid (as was shown by the arrow from numeral 24 in Figure 2 of the Patent – see the fifth diagram that I have included above), the term

“mounted on the main body” in claim 9 had to include the lid.

As the case was ultimately argued, only two main issues arose. The first was whether the words “mounted on the main body” in claim 9 should or should not be construed as including the lid, and the second was whether the judge ought to have held that claims 10, 11, 13 and 15 were obvious over Vogt. The second issue would not arise if Jarden were right as to construction, so that claim 9 did not cover a fryer where the main heater means was not mounted on the lid.

I agree with the judge that these arguments are, at least in some respects, finely balanced. But I should start with the question of whether the judge was justified in making the use that he did of the reference numerals. In this regard, I have no doubt that the judge fell into legal error by allowing the reference numerals to influence his construction of the claim. The judge was not simply using the reference numerals to identify which parts in Figure 2 were being referred to in the claims or the specification, but was relying on the use of the particular identifiers “2”, “2A”, “2B” and “2C” (referring to the main body, the base, the side flank and the lid respectively) to conclude that the lid was to be regarded on a proper construction of the claims as a part of the main body. This can be clearly seen from the fact that the judge said at paragraph 81 that he considered “for the reasons given by counsel for SEB” that “the skilled reader of the specification would conclude that the lid was part of the main body”. One of those reasons was recited by the judge at paragraph 72 namely “the specification describes the main body 2 as having three parts: a base 2A, a side skirt

The judge was, therefore, in my judgment, allowing the numerals themselves to influence the construction of the claim in violation of Jacob LJ’s primary injunction in paragraph 17 of Virgin Atlantic. This was not a use of numerals simply to identify the parts of the patented device, or, to use Jacob LJ’s analogy, to enable the reader to get the map the right way up. It was the use of numerals to direct the skilled reader to which parts of the patented device were to be read in the claims as being included when a particular term was used. Whilst, as the judge said, the point was not used to “limit” the claims in direct violation of Rule 43(7), it was used to construe the claims and, in particular, to give an extended meaning to the term “main body” so as to include the lid, which increased the scope of the patentee’s protection. That was in my judgment impermissible.

I do not, however, think that the appeal can succeed simply on that ground, since it is still necessary to consider whether the judge’s construction was anyway correct. As Mr Brandreth emphasised, the numerals point was very much a secondary issue.

The construction of the term “main body” is complicated by the fact that the use of language in the Patent is not entirely consistent, which may be partly because we are looking at an agreed translation of the Patent from the original French. It seems to me, however that, once it is clear, as it is, that the judge fell into error in one of the reasons he adopted for the construction he decided upon, I must look at the matter afresh without paying any impermissible regard to the identifying numerals as an aid to construction.

In many cases, the rules of construction are stated as something of a mantra without always being given their full and proper effect. This is a case that I have found repays a close study of the principles so often set out. I will try to explain what I mean. The founding principle is in article 69 of the EPC which provides that “[t]he extent of the protection conferred by a European patent … shall be determined by the claims. Nevertheless, the description and drawings shall be used to interpret the claims”. As was said in the oft-cited passage from Virgin Atlantic cited above and by the judge “[i]n short the claims are to be construed in context”, and “[i]t follows that the claims are to be construed purposively – the inventor’s purpose being ascertained from the description and the drawings”. The next passage is equally important: “[i]t further follows that the claims must not be construed as if they stood alone – the drawings and the description only being used to resolve any ambiguity. Purpose is vital to the construction of claims”, as is what follows, namely that the “purpose is not the be-all and end-all. One is still at the end of the day concerned with the meaning of the language used … if the patentee has included what is obviously a deliberate limitation in his claim, it must have a meaning …”.

At one point in this appeal, I was much attracted to SEB’s construction of the claims. That was because SEB submits with some force that, in order properly to understand the inventor’s purpose, one has to reach paragraphs 82-147 of the specification which concerns heating and cooking of the food. Paragraph 82 starts by explaining that the fat-coated food may be heated using any known internal or external heater means “provided that these heater means are designed and dimensioned to provide excellent heat exchange with the food”, which is more important because there is no deep oil

Taken against that background, SEB submits that the claims can be quite easily understood. Claim 1 focuses on the devices needed to mingle the food with the fat – primarily the stirrer means and the receiver means (the receptacle). Claim 2 adds the “substantially closed chamber”. Claim 3 adds the removable lid to form the “substantially sealed chamber” – only substantially sealed because the skilled person would know of the need to remove the steam and to prevent pressure cooking. Claim 4 adds the hinge connecting the lid to the body. Then claims 5 to 8 add alternative methods of stirring, before claim 9 mentions the “main heater means” for the first time. By this time, the skilled reader is taken to understand that what is being spoken of is the closed box of the description, so that the words “mounted on the main body” must be taken to include the lid, since the heat has to hit the food directly, which can in practice only come from above. Claim 10 then explains the need for the flow of heat that I have described as being needed to strike the food directly, and claim 11 expressly mentions the generation of heat above the receptacle. Claim 12 relates to the whole of the heat being supplied by the main heater means, and claim 13

Attractive though this approach seemed, I have formed the clear view that it is wrong. In essence, it ignores the clear language of the claims that are being construed, and also the plain meaning of a restriction in claim 9 which the skilled reader would, I think, have no difficulty understanding. It makes the supposed purpose of the Patent the “be-all and end-all” and ignores the limited extent of the Patent’s scope. Moreover, it places inappropriate reliance on the method that is described, when it is common ground that this is a Patent relating to a product or apparatus, and not to a method.

I should, therefore, come to the proper construction of the claims. First, claim 3 says that the “lid together with the main body form a substantially sealed chamber”. If the lid were construed to be part of the main body, that formulation would have been different. Claim 4 then provides that the hinge is “for connecting the lid and the main body”. If it had been intended to communicate to the skilled reader that the lid was

Moreover, the specification does not give SEB the assistance that it sought. It is true that paragraph 31 speaks about the fryer comprising a main body intended to accommodate food, and that paragraphs 32-34 then describe the base, the side skirt and the lid. But the only thing that even implies that all three of those parts are included in the main body is the numbering system, which needs to be disregarded for this purpose. The use of the words “the main body is provided with a lid” (emphasis added) is, as Jarden submitted, to be contrasted with the other two parts, which the main body is said to “comprise”. The fact that the lid is said to form a closed box in co-operation with the side skirt and the base, if anything, points away from the lid being part of the main body, since that is not mentioned as being what is formed. Paragraph 120 is, at best, equivocal, since it refers to the filling orifice being extended by a conduit that is “provided in the lid or, more generally, in the main body”. That is no clear indication that the lid is part of the main body, merely that the main body is a greater (or more “general”) part of the whole than the lid.

SEB also, in my judgment, failed adequately to rebut Jarden’s argument that “main heater means” comprised only the heater and the fan, which were both clearly mounted on the main body as opposed to the lid in the preferred embodiment. Whilst it is true that paragraph 84 refers to the function of the “main heater means”, that paragraph does not define the term. The term is explained first in paragraph 83 which says that “a main heater means [is] provided to generate a flow of heat”. The ducting, which SEB says is part of the “main heater means”, does not “generate” anything. Paragraphs 90 and 92 are to the same effect, namely that the “main heater means includes a centrifugal fan generating an air flow by taking air from the main body” (emphasis added), and the “main heater means also includes a heater element … to transform the air flow into a flow of heat”. Claim 14 is in similar terms. In my judgment, these paragraphs demonstrate that the main heater means is explained to the skilled person reading the Patent as including only the fan and the heater itself, not the inlets or the outlet ducting, the latter of which is shown as being in the lid. It is the “assembly of the air circuit” in paragraph 102 that is explained as including the ducting, not the main heater means.

The only real support for SEB’s contention that the main heater means includes the ducting in the lid is the use of the numeral “24” in Figure 2 referring to the “main heater means” with an arrow pointing to an area in the lid, but towards the heating element. Whilst I accept that one can properly look at where the arrow points as an aid to construction, it is not clear that the position of the arrow assists SEB since it is pointing directly at the heater coil, even if the head of the arrow stops before it. This is simply not enough to outweigh the effect of the clear words of the specification and the claims.

Ultimately, this is a case, as I have said, where it is necessary to pay close attention to the process of construction described in Virgin Atlantic. A purposive construction would ask the skilled reader to look at the cooking process that SEB relies upon, but the Patent is not, as I have said, a method patent. The purposive construction cannot overcome the clear restriction in claim 9 that limits the patentee’s claims to a main heater means mounted on the main body. Claims 3 and 4 and paragraphs 31-34 (together with other later paragraphs) show that the main body is separate from the lid, so claim 9 does not include a main heater means mounted entirely on the lid as in the Halo fryer.

The other reasons relied on by the judge do not, I think, come close to contradicting the clear language of claims 3 and 4: even if the term “main body” is used in contradistinction to the receiver means and the stirrer means, that says nothing about whether it includes or excludes the lid.

I have considered carefully how the judge, with his extensive experience in the field, can have fallen into error on this construction issue. It seems to me that he may have been influenced in his construction of the Patent by issues relating to infringement. In the preferred embodiment of the Patent, it is clear that the “flow of heat” comes down from the lid on to the food, and that is how the Halo works (albeit that it uses radiant heaters). The method adopted by the Halo is certainly similar to that described in the Patent. But that is not relevant to the question of whether the Patent actually claims a device in which the main heater means is mounted on the lid. In my judgment, it does not.

For these reasons, it seems to me that the judge was wrong to conclude that the main heater means mounted on the main body referred to in claim 9 could include a “main heater means” mounted in the lid. I would, therefore, allow this part of Jarden’s appeal.

It was common ground before us that if the judge was wrong on the construction issue, that was an end of the matter, since the Halo fryer would not have infringed claims 10, 11 and 13 which the judge had found to be valid. Accordingly, in the way that I would dispose of the construction issue, none of the many other points raised by Jarden requires to be determined.

Since, however, they were raised and argued at some length, I feel that I should record that Jarden submitted as follows on the judge’s treatment of Vogt:-

I have considered these points and would deal only with the first which concerns whether the judge was justified in holding that the skilled team would not have regarded Vogt as a useful starting point for further development. As the judge recorded at paragraph 102 of his judgment: “the skilled person is deemed to read the prior art properly, and in that sense with interest, but without assuming that it will provide him with any assistance in solving the problem which confronts him. In some

The question on this point was really whether the judge was entitled to raise this point at all, since there was no clear expert evidence to the effect that a skilled person would disregard Vogt or conclude that it did not provide him with assistance as providing a useful starting point for development. We were shown in detail the evidence of Mr Dov Glucksman, Jarden’s expert, to whom the judge had suggested this point at the end of his testimony.

In my judgment, however, this was a point that was open to the judge. He made it quite clear that he preferred Mr Nicholson’s evidence to that of Mr Glucksman, and whilst Mr Nicholson did not say in so many words that he would have disregarded Vogt, his reports make it obvious that that was his view. Vogt teaches a shallow frying mechanism dependent on the main heat source under the vessel. To make it a useful starting point, the skilled team would have at once to have changed the fundamental elements of Vogt’s teaching. It would have been necessary to close the vessel to form a substantially sealed chamber, which as the judge said was contrary to Vogt’s teaching, and to remove the main heater means under the main body to allow a different method of cooking with heat directed at the food.

I would be reluctant to depart from such an experienced judge on a question of obviousness. I am sure that the judge was fully entitled to reach the conclusions that he did in both paragraph 120 and paragraphs 121-2 of his judgment. Having looked with interest at Vogt, I do not think that the skilled team would have regarded Vogt as a useful starting point for further development. In these circumstances, there is no need for me to consider the other points made by Jarden in relation to Vogt and I do not regard it as appropriate to do so.

For the reasons I have given, I would allow the appeal on the main construction point, and declare that claims 10, 11 and 13 were not infringed by the Halo fryer.

I agree.

I also agree.