PAPER: FD4 MARKS AWARDED : 63

Transcription

1 PAPER: FD4 MARKS AWARDED : 63 Abbreviations FRNU = Flys - R - Not - Us IALLL = Insects Away LLL B1 = Trap 1 of Doc B B2 = Trap 2 of Doc B = because pdc = Patent drafting convention, X = Feature present, absent C = Doc C PSA = Person skilled in the art CGK = Common general knowledge Construction Claim 1 (C1) 1.1 'An insect trap comprising a housing' Independent product claim 'Comprising' - including at least the following features, may include more. 'An insect trap' = device for luring insects natural meaning, clear in context. 'housing' = body suitable for containing other parts or having parts attached to it natural meaning. Patent describes housing 2 has a floor f, roof R, walls W1, W2, W3, W4 and an enclosed space. However, not limited by special embodiment, because limited by these features. Claim 3 (C3) introduces 'floor or housing'. housing inherently has at least a floor. 1.2 'having an opening through which insects can enter the housing' = housing has a gap for allowing an insect to ingress in to the housing figures 1-3 show housing having opening 3. This is for the ingress of insects 1 - p4, L34. Although a single opening is shown, there may be more than one opening in a gap - natural meaning. 'through which' referring to the opening. 'insects' plural. More than one can enter simultaneously. 1

2 1.3 'the housing containing a source of passive insect attractant' 'containing' = located within the housing because p5, L4-5 discusses body 7 is located within. This seems to make the most sense in context. 'a source of passive insect attractant' = an insect attractant not powered by electricity Patent describes use of 'pheromones' - p5, ll4-5 which attract insects - p5, l25. Passive is something that is not active. p3, ll20-21 describes passive mean 'no electricity is required'. The attractant is not powered by electricity. Active trap use UV light for example - p3, ll = an insect attractant not powered by electricity is located within the housing. 1.4 'the volume between the opening and the source of insect attractant providing an insect fly path' 'volume' = 'fly path' = enclosed space p4, ll35-36 describes what is formed by the housing. The volume is the part defined by the walls of the framing. Not fully enclosed, because opening is present - see Figure 2, 3. route of access towards Flight path, FP, shown in figure 2. This is determined by the insect... not fixed flight path. Flight path is a path traversed by the insect through the housing on the way to the source - p5, ll fly path is an access route. FP is a direct flight path - p6, l5. However, may be indirect because second embodiment must be included in scope of claims. Flight path may not connect attractant with opening. 1.4 = the enclosed space has a route of access from the opening towards the source of insect attractant NB 'source of insect attractant' referring to the passive source of 'a screen located within the housing' = the housing contains a matrix material 'screen 5' has a 'mesh 51' - p5, l8. Function is to 'capture insects which contact the screen'. p4, ll13-18, particularly where coated with an adhesive. Screen may be removable - p4, L10. However, claim not counted to such wording, as long as screen can be placed within the housing. 2

3 Screen is 'slidably received' in a slot located in the housing - p4, ll23-25 and is replaceable. Also p5, ll Sources comprise a mesh, which is providing a filtering effect, shielding the body 7 - fig 2, 3. Matrix material mentioned on p4, L 'are a source of electrical power to electrify the screen' Claim 2 (C2) = mains or battery powered to electrically power the screen. patent describes trap can be connected to the mains - p4, ll5-7 but may also be battery powered - p5, l35-p6, l2. Electrical power is required in order to electrify the screen. The electrically conductive adhesive is electrified - p5,ll Adhesive is added to mesh and includes electrically conductive e.g. (metal) passive - p5, ll screen does not have to be electrically conductive because adhesive is. 1.6 is not suitable for being mains powered/battery power so mains power/battery power is included. 2.1 'An insect trap according to claim 1' = includes all features of C1 + the following pdc. 2.2 'Wherein the source of insect attractant in a body containing one or more insect pheromones' C3 ' body containing' =member holding body 7 is patent is 'doped with' pheromone. This means soaked. Therefore, the pheromone is part of the body. However, not committed to narrow interpretation. Broader interpretation is that a body holds, the pheromone, indirectly or directly. 'insect pheromones' = clear in context. 3.1 'An insect trap according to claim 2 = includes all features of claim 1 + C1 + the following pdc Not dependent on C1 alone. 3.2 'wherein the screen, or a portion thereof, is angled with respect to the floor of the housing' = at least part of the screen is position as at least an acute angle of the housing (not 90 o ) with respect to a bottom 3

4 p5, ll14-18 describes a 'acute angle'. This is determined by the longer length of the source compared to the height of the enclosure - see Fig 2, 3. However, claim language not connected to this. What is an acute angle! This is a slight incline or decline with the floor. 'the floor' no antecedent. The housing implicitly comprises a floor. 'angled' in addition, function is to allow insects to fall to tray 4 - Fig 2, 3. This might not work if the screen is orthogonal to the floor. 'a slight angle will help. Purpose is to 'drop over a wider zone' - p4, l9. C4 4.1 'an insect path according to claim 3' 'path' this must be an error. Means 'trap' of former claim. 4.1 = an insect trap including all features of claim 3 + C2 + c! + following. Not C2 + C1 or C1 only. 4.2 'wherein the screen interrupts the insect fly path' = screen blocks insect on route to source C5 'attempts' suggest blocks. The screen acts as a barrier. Insects are not allowed to pass. Screen captures the insect - p4, ll Screen ends fly path if in contact. This implies matrix gaps are very small. 5.1 'An insect trap according to claim 1' = including all features of claim 1 + following Not C4, C3, C 'further comprising a removable container located below the screen for receiving dead insects' = a member being moveable with housing to allow insect corpses to be collected and removed. 'removable' suggests can be removed, without damaging, i.e. must be put back as originally found. Released from housing - p4, l10 'container' tray 4 is removable - p5, l29 in order to remove corpses. However not limited to tray. 4

5 Function to allow dead corpses to be removed. Does not have to be detached completely but removable suggests so. While the tray has to be removed to allow insects to be deposited. However, this is very [unclear]. I favour broader interpretation of at lest part being moveable to allow access to corpses. C6 6.1 'a screen for capturing insects is an insect trap' = a matrix material suitable to trapping insects Independent product claim for screen. p4, l2 6.2 'the screen comprising a flat mesh secured to a frame' = the screen having at least two pans, a substantially level matrix material coupled to a member on at least part of a peripheral edge. 'comprising' = includes at least the follow 'floor' = substantially level :- patent does not describe must be flat exactly. Slight variations are acceptable. Function is to trap insects. 'frame' Has to surround the mesh? 'surround 5 2' suggests so - p5, ll8-9. Also Fig 4 shows the surround 5 2 is at the peripheral edge of the mesh frame must be both. Secured to at least part of peripheral edge i.e. 'longitudinal edges' p5,l14 'secured' 'surround 5 2' is slidably received in [unclear] - p5, L14 secured means coupled to. 6.3 'the mesh being coated in an insect adhering material' 'mesh' referring to the flay mesh of 6.2 'coated' at least partially 'doped' used on p4, 22 not essential that fully coated 'insect adhering material' material for sticking insects 6.3 = matrix material is at least partially doped in an adhesive for sticking insects. 6.4 'and being electrically conductive' 5

6 Infringement Not clear if mesh or adhesive is electrically conductive by the wording used. I believe it refers to mesh P5, l11-13 adhesive contains metal particles in spec. Adhesive vaporises when electricity applied when insect present - p5, ll = Mesh is suitable for receiving an electrical charge IALLC - B1 is for scientific use (p10, l25) MARKS AWARDED 15 No significant UK presence - P2,29 may rely on experimental use defence. Currently in development (p10, l6). No infringing acts yet, only potential ones. If B1 made, offered, disposed, imported, used or stored for commercial use in UK, acts are potentially infringing. End user of B1, B2 - B2 is for commercial use - p11, l25. if B2 is made, used, offered for sale, sold, imported or stored in the UK, such an act is a potential infringement. Currently, only in developments - p10,l6. Use potential for B2 but can rely on private and commercial defences. Retailers of B1, B2 Storing, disposing, offering to dispose of in UK of B2 potential infringement act. C1 B1 = Trap Insect trap discussed on p10, l26. This is a device for luring insects. 'enclosure' of B1 - p10, L26, Fig A in a body suitable for containing other parts because pheromone and mesh 1-3 within the enclosure. Also housing has flaps F1-3 attached to it - Fig A. 1.2 opening' discusses on p10, L26, Fig A = #insect entrance'. This is a gap (insect entrance) for allowing an insect to ingress in to the enclosure (housing) p11, ll15 discusses insect enters enclosure. 6

7 1.3 Pheromone used as an insect attractant - [11, l15. This is not powered by electricity. Pheromone is a chemical p10, ll27-28 'solution' = liquid. The pheromone is located within the housing - see Fig A pheromon housing 1.4 Fig A shows an enclosed space defined by the enclosure. Access [unclear] is provided between opening and towards pheromone. p10, 230-p11, meshes 1-3 are matrix materials and are contained within the enclosure - Fig A, p10, ll Mains electricity powers the mesh - Fig A, P11,l11-13 B1 infringes C1. C2 2.1 All features of C1 2.2 cotton pad is body - p10, l This is soaked in pheromone - p10, l28. B1 infringes C2. C3 3.1 All features of C2 + C1 present 3.2 X According to Fig A mesh are orthogonal to the bottom. B1 has not infringed C3 7

8 C4 4.1 X 3.1. not present 4.2 p11, ll15-19 describes how at least one mesh will block insect on route to the pheromone. B1 does not infringe C4, (due to dependency) but does show features of 4.1. C5 5.1 features of C1 present 5.;2 flaps are moveable within housing to allow insect corpses to be removed - Fig A, F1-3. P11, ll flaps collect corpses, although not being a tray or traditional container. B1 infringes C5 C6 6.1 Meshes 1-3 are suitable for trapping insects. P11, ll X Screen does not have two paths. Mesh is single path fixed to enclosure - P11, ll X No coating, no adhesive. 6.4 Yes electrically conductive - P11, l B1 does not infringe C6 B2 C1 1.1 P11, l26 - insect trap, enclosure 1.2 opening shown in fig B, P11, 226 to allow [unclear] or insect. 1.3 pheromones in enclosure - p11, L16, fig B 1.4 enclosure provides an enclosed space providing a route of access towards pheromones fig. B, P12, ll mesh M21, 22, 23 or ball of wire are matrix materials 1.6 Fig. B shows mesh powered. B2 infringes C1 8

9 C2 2.1 all of C1 present 2.2 cotton pad soaked in pheromone fig. C, p11, LL B2 infringes C2 C3 3.1 all features of C2 + C1 present 3.2 portion of mesh or ball of wire are at least on a acute angle (fig B, C) to the bottom of housing B2 infringes C3 C4 4.1 C3 features present 4.2 X Mesh or ball of wire do no block insects (every time) on route to pheromone. May pass through mesh - p14, ll28-32 B2 does not infringe C4 C5 5.1 All C1 features present 5.2 X No moving or replaceable parts within housing. B2 does not infringe C5 C6 6.1 mesh in figure D in matrix material suitable for trapping insect. 6.2 solid portion and mesh portion of Fig D - P12, ll2-3 are two pan. Although slightly bending (p12, ll11) in use the mesh screen substantially flat when not in use. 6.3 X mesh not coated in adhesive. 9

10 6.4 X mesh of fig D is not electrically conductive because material not shown. Check. B2 does not infringe C6. Novelty DocC = C Full prior art because published before filing date of A. C1 MARKS AWARDED P16, ll2-8 describes device 11 for attracting flying or crawling insects. Housing assembly 13 - figure 2, p16, L9, p15, L13 is suitable for containing other pan shown in fig. 2 or having other pan attached to it. 1.2 P15, L14 - opening in housing. Also, figure 2, number 17. This allows insects to ingress in to the housing - P16, ll C discusses 'active attractants' - light 23. However, chemical attractant discussed on P16, LL23-27 as an alternative. This would be located within the housing assembly because fig 2 shows 2 number 21 is within the assembly. Chemical attractants without use of electricity. 1.4 the enclosed space of the housing assembly as shown in figure 2 has a route of access for an insect from the opening 17 to the source matrix material shown by number 19 and grid 39. Both are contained within the housing see figure grid 39 is electrified - p17, ll28-34 C2 C1 is not novel over C 2.1 all features of C1 present 2.2 X Pheromones not mentioned 10

11 C2 not novel over C by dependency but is novel in own right. C3 3.1 X 2.2. not present 3.2 X Screen as defined in C1 (i.e. grid 39) is not angled wrt to bottom of housing (fig 2) C3 novel over C by own right but not by dependency C4 4.1 X 2.2, 3.3 not present 4.2 X grid 39 does not block insect on route to source - fig 2. C4 novel over C in own right but not by dependency. C5 5.1 all features pf C1 present 5.2 P17, ll pan member 45 in moveable wrt housing. Insect carcasses are disposed here and can be removed. C5 not novel over C in own right or by dependency. C6 6.1 grid 39 in a matrix material because described as a grid for trapping insect. Open mesh screen 19 not for trapping insects - P17, ll X grid 39 is substantially level according to fig 2. However nothing attached at peripheral edge - Fig 1, 2, base member 37 is coupled at the base not on edge. 6.3 X sticky substance mentioned on p15, l26. However, grid is not coated with such. 6.4 grid is suitable for receiving an electrical charge - P17, l37 'electrified'. C6 novel over C because 6.2, 6.3 not shown. 11

12 Novelty D C1 1.1 Attractant is an insect trap - P19, ll Frame is a housing because path attached to it - Drawing 1,2 1.2 X Gap shows in Drawing 1, 2 between paper and frame but housing does not have an enclosure so insect can ingress. 1.3 Pheromone impregnated in mesh - Drawings 1, 2 are not powered by electricity. 1.4 X No enclosed space 1.5 mesh - Drawing X No source of electricity. C1 novel over D C2 2.1 X all C1 not present 2.2. mesh has pheromone - Drawing 1 C2 novel by dependency not by own right. C3 3,1 X 3.2 portion of mesh angled in Drawing 1 wrt to bottom of frame C3 novel by dependency not in own right. C4 4.1 X 4.2 X mesh is at source not on route C4 novel 12

13 C5 5.1,2 X no container C5 novel. C6 6.1 mesh - Drawing X mesh is not flat. Frame - yes. 6.3 Mesh is coated with adhesive - Drawing aluminium frame - P19, L32 so conductive to electricity. C6 novel because mesh not flat. MARKS AWARDED 15 Inventive Step 1a 1b PSA is a designer or manufacturer of traps for insects. CGK or PSA includes fly paper described in D, p19, ll8-16. PSA is familiar with active and passive traps discussed in p3, ll Therefore familiar with electricity powered traps and those without electricity to lure insect. C1 2. Inventive Concept (IC) of claim 1 is to provide an enclosure with a fly path with a electrifying source. 3. Difference between 1C and C1 and D is that D does not show an enclosed space (i.e. a volume between the opening and the source of attractants) The advantage is to locate the screen within the enclosure in order to improve the entrapment of the insect. 4. Starting with D the PSA is not taught how to provide a fly path. D relies on the insect acting like 'a windmill' - p20, l10 so that it can rotate in a breeze. It is not the aim of D to provide an enclosed space with an opening to the volume. The windmill effect is a 'pleasing mobile effect' to encourage the pheromone to spread - p20, ll Enclosing the mesh of D would not provide the effect taught by D. Therefore, the PSA would not arrive at C1 using D alone. None of the cgk teaches to provide a fly path. 13

14 I believe that the PSA would not be motivated to look to C because C and D are actually incompatible. One teaches movement to spread pheromone, whereas the other teaches the enclosure of pheromone. C1 is inventive over C, C+ cgk if the PSA was motivated to put the mesh of C in to D, the PSA may replace the light. This would allow the mesh to shine. However due to the several steps required, I do not believe this is obvious. C1 is also inventive over C + D. C2 2. 1C or C2 is to provide pheromone to attract insects. The doesn't prior art in Doc C. 3. Difference is pheromone. 4. PSA would consider using pheromones alone using C. However C mentions chemical means on P16, LL Therefore the PSA is motivated to look for suitable chemical means to attract insects. C3 On reading D, PSA would realise benefit of pheromone and would simply add this as the attractant. I believe C1 is not inventive over C + D. 2,3 Benefit of angle is to provide a widen the are to collect the insects. This is not taught by C or D. 4. Although the difference appears minor the difference is not taught by C or D. Would PSA consider this as a workshop variant: On balance, I feel not. C4 C3 is inventive over C, D and C and D in combination. I believe C4 is inventive because blocking fly path is not shown on route to attractant. C teaches mesh to allow insects through. D does not teach of blocking path. C4 inventive. 14

15 C5 Inventive over D because insects taught to stick to adhesive. Would not drop off. C6 Amendment Sticky adhesive and frame not inventive over cgk when C. MARKS AWARDED 7 - Correct error in claim 4 - 'insect path' should be 'insect trap'. This is likely to be allowed under S.117 because obv. error and correction is obv. (2-pat test) - Recommend considering amending to C1 + C3 because this would be novel and inventive over prior art (C, D) and capture B2. Sufficiency No issues that I can see. Advice to client Summary Claim 1 infringed by B1 & B2 but not novel over C. Claim 2 infringed by B1 & B2, novel over C but not inventive Claim 3 infringed by B2 (not B1), novel over C and inventive. Claim 4 not infringed. Claim 5 infringed by B1. Claim 6 not infringed. MARKS AWARDED 1 MARKS AWARDED 1 Your patent is currently in [unclear] so can be immediately used against a infringe against acts of infringements. However, according to my construction, C1 is not novel over C. However, if claim 3 was added to claim 1, I believe this would make a novel and inventive claim. This would catch IALLC'S product B2 but not B1. B1 appears to no infringe by experimental use defence anyway. 15

16 - If you needed to you could seek damages or account of profits against the IALLC, injunction, delivery up or destruction and a declaration of infringement. - However, acts are currently potential acts. No infringement yet. - I recommend preparing a response to IALLC asking them to take out a licence. If they do not agree, you could request amendment of paten before action. IALLC may oppose however. - We may want to consider to amend foreign patents as well. This may be easier before grants. - We cannot apply for an interim injunction because we do not have an arguable case, particularly if amendment proceedings are pending. We also need to act fast to have clean hands - If we amend are successful and then apply for injunction, IALLC will be forced to design around our amended patent. - IALLC are seeking our agreement because if we do not reply, they can request a certificates of non-infringement from the UK-IPO. Although they are unlikely to be successful because B1, B2 infringe claim 1 as it currently stands, IALLC may request revocation of our patent due to C. At this point, we could amend the patent to include claim 3. However IALLC can oppose because they will be directly altered to this. - We know that IALLC is desperate to avoid patent (P2, ll28-30) infringement design arounds may be difficult for them. - You want to stop IALLC at all costs. recommend amending then alerting them once amended. - If IALLC infringe they cannot rely on innocent infringement because they are aware of patent. - Damages can be reduced for a partially [unclear] patent so recommend amending first because you will be in a better position. - Then apply for an injunction to stop launch in Jan 2016 likely to succeed and IALLC off UK market. MARKS AWARDED 4 16