Birss issues hosepipe ban (despite current flooding) - Blue Gentian prevails over Tristar

This Kat recalls Mr Justice Birss (or at least one of his judgments) being referred to as "Arnoldian" at the CIPA President's dinner in October 2013.  The term was used with apology to Mr Justice Birss himself, but without apology to Mr Justice Arnold, who was sitting right there in the room. The IPKat therefore considers that "Arnoldian" is now officially a word, and this Kat ventures to attach to it the definition "long, but not necessarily in a bad way".

Blue gentian, I Presume

Decidedly not Arnoldian is the judgment of Birss J handed down just before Christmas in the case of Blue Gentian Llc & Anor v Tristar Products (UK) Ltd & Anor [2013] EWHC 4098 (Pat) (20 December 2013).  (Merpel just loves the names of the parties in this case - especially Blue Gentian - see here)  In just over 100 paragraphs and 19 pages Birss disposes of the entire case, aided by the fact that infringement was not apparently disputed and only two pieces of prior art fell to be considered for validity.  Also the patent at issue  GB 2490276 relates to rather simple technology of garden hoses.  As the judgment records:

The invention is a hose with an inner tube inside an outer tube.  The outer tube is secured to the inner tube only at the ends.  The hose expands when connected to a pressurised water supply such as a water tap (faucet).  The hose can expand longitudinally up to six times its length and width.  On release of the pressurised water from the inner tube, the inner tube will contract.  The inner tube could be made of rubber while the outer tube could be made of a non-elastic relatively soft fabric like woven nylon.  Figures 9 and 5 and figures 10 and 6 show the invention in its unexpanded and in its expanded states: 

In the unexpanded state, when not connected to water pressure, the inner tube is in a relaxed condition.  There are no forces being applied to expand or stretch it.  It has a relatively narrow diameter.  In this state the outer tube is ruffled.  When the hose is connected to a water supply and the supply turned on, water pressure expands the rubber inner tube.  The inner tube will expand laterally (also referred to as radially or circumferentially) and will also expand axially (i.e. along the length of the hose).  As the inner tube expands the wall thickness of the inner tube material reduces, in other words the material gets thinner.  The radial expansion is constrained by the diameter of the outer tube.  The axial expansion is constrained by the length of the outer tube.  As the water inflates the inner tube, the hose expands lengthways and the ruffles of the outer tube unfurl until it is smooth (see fig 10).  In this state the hose can be used.  The hose contains a flow restrictor, which can be a small disc with a narrower bore than the bore of the hose.  

Birss J had little difficulty in finding the claims novel over US 2003/0000530 ("MacDonald") relating to an oxygen hose for an oxygen mask - if MacDonald was considered without the gas mask it lacked the flow restrictor, while if it was considered with the gas mask it was not a "garden water hose assembly".  On the other hand in relation to a document ("Ragner") that was concerned with garden variety [pun intended] hoses, US 2003/098084 [Merpel notes that the judgment has the wrong number for this in para 2, but this is clearly the document that is meant], the judge found that:

although paragraph [0107] discloses the idea of making the cover material from elastic material, it does not expressly disclose the combination of an inner cover of elastic material and a non-elastic outer material.

He therefore found the claims to be novel over Ragner, and also found that it was not obvious (without hindsight) to modify Ragner to arrive at the claimed invention.

And since infringement was not in dispute, that was pretty much the end of the matter.

The IPKat's ears also pricked up at the penultimate paragraph of the judgment, which indicates how much attention a UK court is likely to pay to a Patent Office opinion:

I will mention a further point which arose in argument.  Blue Gentian provided me with a copy of a Patent Office opinion that the European equivalent of the Blue Gentian patent is not obvious over McDonald.  I have not taken it into account and have not read it (save for the extract in Blue Gentian’s closing).  I mention it here because the quoted extract shows that the examiner does “not believe that [McDonald] can rightly be considered relevant to the state of the art as it is a breathing apparatus for a pilot”.  I sympathise with this sentiment but it appears to suggest that McDonald is not even to be put before a person skilled in the art at all for the purposes of testing obviousness.  I believe that is not the law.

So that would be not a lot, then.