Sandwich carton patent: who takes the (w)rap?

If you've ever had problems cutting a sandwich neatly, spare a thought for those dedicated souls who work so hard to find new and better ways of making those charming little cartons in which most mass-produced sandwiches are housed and subsequently sold. This technology was exposed to the light of day in Nampak Cartons Ltd v Rapid Action Packaging Ltd [2010] EWHC 1458 (Pat), a decision of the Patents Court for England and Wales (Mr Justice Floyd) last Friday. This was an application by Nampak to revoke a patent belonging to Rapid Action Packaging (RAP) for sandwich cartons. Faced with the prospect of revocation, RAP applied to amend the principal claim of its patent to the effect that when the hinged lid of the sandwich carton described in the patent was opened, the flange of the carton delaminated, with part of the flange material remaining bonded to the lid. This technique, known as the 'Concora' cut, made it possible to open a cardboard package by means of "spaced apart partial cuts approaching from opposite sides of the card", which were similar to those found in tea cartons and other cardboard packaging.

Nampak's assault on the patent was based on lack of inventive step, citing three earlier documents: 'Rigby', 'Meyers' and 'Spiral Packs'. In dismissing the application for revocation, the hearing officer held that Rigby disclosed Concora cuts along the sides, but this was not fatal since those cuts were made in the lid and not in the flange. Meyers was no problem either, in that it featured two methods of creating the opening: (i) a single microcut in the flange, which left it the same width after it was cut as it was before and where the flange delaminated between a single cut and the outer edge of the flange rather than between cuts in the flange itself, and (ii) two cuts, where it was the lid and not the flange which delaminated, that delamination occurring inboard of the flange in order to create a lip for re-closure. Spiral Packs likewise was no problem since it directed the reader to use "tear strips formed by lines of weakening", such strips being capable of being formed by lines of perforation or by opposed double Concora cuts.

The hearing officer said he did not find the evidence of the opposing expert witnesses 'directly' helpful, adding that they were not 'ultimately' able to help.

Nampak appealed, arguing that the hearing officer had failed to apply the correct approach to inventive step as laid down in well-established case law (see Pozzoli SPA v BDMO and others [2007] EWCA Civ 588, on which see the IPKat here), that he had failed to consider the expert evidence and that, in substituting his own opinion, he reached a conclusion which had not been not open to him on the evidence.

Mr Justice Floyd dismissed the appeal. In his view,

* while the structured approach of Pozzoli was of assistance to judges in the analysis of evidence, not every slip in its application opened the decision to an attack based on an error of principle.

* the hearing officer had been fully entitled to reject the obviousness attack based on Spiral Packs or based on common general knowledge. There was ample evidence to suggest that Spiral packs would be read by the skilled person as teaching one or other or both of the methods, namely that a narrow tear strip could be formed by lines of perforation, or by opposed double Concora cuts. The skilled person was in fact left with a variety of tear-strip options as to how to proceed. In the light of the evidence before him, the hearing officer had been entitled to conclude that those options were significantly different from the inventive concept which used a single Concora arrangement in the bonded flanges.

* the hearing officer had not actually disregarded the expert opinion evidence. His statement that he did not find the expert evidence 'directly' helpful and that the experts were not 'ultimately' able to help suggested that he was simply recording the usual fact that experts employed by opposing parties took opposing views. The fact that he said this evidence was not directly or ultimately helpful suggested that it was helpful indirectly, or earlier. In any event he had not reached a conclusion which was not open to him on the evidence.

Says the IPKat: no problem here, this was obviously an open-and-shut case.

Lord Salmon of Sandwich here
Secret sandwiches here
Sandwich rap here
Sandwich wrap here