Patent - Petition for revocation - Obviousness
Unilever plc v SC Johnson & Son Inc: Patents County Court (Judge Birss QC): 25 May 2012
The defendant company held two patents for automated cleansing sprayers for automatically cleaning bath and shower enclosures (GB 2 389 547 (547) and GB 2 403 169 (169)). Claims 1 and 2 of 169 state: ‘1. An automated sprayer for spraying the walls of an enclosure with a cleanser, comprising: a container containing a cleanser; a metering system for controlling flow of the cleanser; a spray head for spraying cleanser during a spray cycle; and a control for automatically controlling spraying of the cleanser out of the sprayer; wherein the sprayer is configured so as to be mountable wholly within the enclosure, and when so mounted can spray the cleanser even when the sprayer does not receive water from a water supply of a building in which the enclosure is located. 2. The sprayer of claim 1, wherein the sprayer is suitable to be hung from a shower head and operates using battery power.’
Claim 1 of 547 provided: ‘A standalone automated sprayer for spraying the walls of an enclosure with a cleanser, comprising: a metering system for controlling flow of the cleanser; a motorised spray head for spraying cleanser during a spray cycle; and a control for initiating the spray cycle and automatically terminating it’. The claimant company applied to revoke 547 and 169 on the grounds that they lacked novelty or were obvious over three items of prior art, all of which had been published before the priority date. The first item of prior art, US 5,884,808 (808), described an apparatus for dispensing material from a container. It had a motor for repeatedly actuating the dispensing element and a battery to provide power to the motor; a controller for activating the motor at predetermined time intervals; and an LCD display to provide an indication of the time remaining until the container was empty.
The second item of prior art, US 4,272,019 (019), described a fluid sprayer apparatus and method. The device was described for delivering atomised fluid in a use area such as a cattle milking barn. Such delivery or spraying could be done using automatically operated switches and timing devices. The device could have at least one and preferably at least two spray heads which could be manually adjusted to direct a stream of atomised fluid in a particular direction. The spray heads operated according to the venture effect with an air supply from an air blower. The container of fluid, blower, heads and timing means were preferably assembled into a wall-mounted case or hung from the ceiling.
The third item of prior art, JP 10-328059 (059), described a bathroom cleaning device which automatically cleaned by spraying the inside of the bathroom with detergent and water. The defendant contended that claims 1 and 2 of 169, and 1, 2, 5, 6, 15, 19, 26 and of 547 were valid and relied on a textbook, Atomization and Sprays, by Arthur Lefebvre (the Lefebvre textbook) as common general knowledge.
It fell to be determined: (i) whether the skilled person would know about the development of cleansers, including automated cleansers, in bathrooms and other environments; (ii) whether the Lefebvre textbook, 059 and automated shower sprayers were common general knowledge; (iii) whether 547 and 169 were novel; and (iv) whether 547 and 169 were obvious. The application would be allowed.
(1) The person skilled in the art in the instant case would be someone (possibly a small team) working in the field of consumer products for household care. They would be the kind of person working in the groups from which the parties' experts had come but they might not have been working in an organisation quite as large and well resourced as the parties. They would have experience of bathroom care products and also related products like cleaning products. They would have a general knowledge over a broad range of the technologies needed to develop mass-produced cleaning appliances incorporating electronic controls (see ,  of the judgment).
(2) The Lefebvre textbook itself had not been common general knowledge. Its contents would not inform or guide a skilled person from the outset nor would the skilled person bring it to bear on reading a particular piece of prior art. On the other hand, as a leading textbook on spraying, it had seemed that the text would be representative of the kind of technical resource a skilled person would know would exist and which would be consulted if they had already decided to look seriously at options in spraying technology. 059 itself had not been part of the common general knowledge.
There had been no evidence it had been known by anyone. As part of their common general knowledge, the skilled people in the art would be well aware of the idea of making smaller portable automated dispensing products for household care. Those products would be designed to save their users’ time and effort. Part of the function of those skilled in the art in the field would involve making such devices (see -,  of the judgment).
(3) It was established law that the approach to the assessment of obviousness would be to: (i) identify the notional person skilled in the art and identify the relevant common general knowledge of that person; (ii) identify the inventive concept of the claim in question or, if that could not readily be done, construe it; (iii) identify what, if any, differences would exist between the matter cited as forming part of the ‘state of the art’ and the inventive concept of the claim or the claim as it had been construed; and (iv) consider whether viewed without any knowledge of the alleged invention as had been claimed, had those differences constituted steps which would have been obvious to the person skilled in the art or had they required any degree of invention (see  of the judgment).
In the instant case, claim 1 of 169 had lacked novelty over 808, as 808 had been suitable for spraying the walls of an enclosure. If it were to be pointed at a corner, two walls would be sprayed. There had been no limit in the claim concerned with the amount of material to be sprayed. Further, it had been novel over 019, which had not been a device mountable wholly within the enclosure as a result of the need for an external electricity supply and the cord. In the instant case, claim 2 of 169 had been obvious over 808 as it would be obvious to a skilled person, bearing in mind their common general knowledge, that a free-standing spray device would be suitable to be used to dispense shower cleanser by spraying the shower walls.
Claim 2 of 169 would not be obvious over 019 since to go from 019 would require the skilled person to take quite a series of steps. Even if individually one or more of those steps had been obvious, they had not been cumulatively obvious. Claim 2 of 169 had been obvious over 059, with respect to a container for the cleanser and a tray to receive the cleanser container in an inverted fashion, as inverting the container so that the neck had been pointing downwards to let the fluid out had not been inventive (see , , , , ,  of the judgment).
(4) Claim 1 of 547 had not lacked novelty as 808 had not had a motorised spray head. Although the action of the motor in 808 had caused the nozzle to move in order to be pressed downwards and activate the aerosol can, that had not moved the spray itself. Claim 1 of 547 had not involved an inventive step over 808 as there had been no inventive step involved in changing the spraying technique described in 808 to an alternative arrangement that had been taken from the common general knowledge. Claim 1 of 547 had been obvious over 059.
The number of changes which would have to be made to convert 059 into a standalone shower cleaning device within claim 1 of 547 had all followed plainly and logically from a single starting point. Claim 1 of 547 would not have been obvious over 019 as a series of steps would be needed. Even if either step individually had been obvious, they had not been cumulatively obvious. Claims 5, 6, 15, 19, 26 and 33 of 547 had all been obvious over 808 and 059. Claim 26 of 547 had not been obvious and claim 33 had been only valid insofar as it had been limited to the fluidic oscillator (see , , , , , - of the judgment). Patent 169 was wholly invalid but patent 547 was partially valid (see  of the judgment).
Andrew Norris (instructed by Potter Clarkson LLP) for the claimant; Simon Malynicz (instructed by Carpmaels & Ransford) for the defendant.