Petition for revocation – Obviousness
Phil & Ted's Most Excellent Buggy Company Ltd v TFK Trends for Kids GMBH and others: Patents County Court: 8 May 2013
Both the claimant and the first defendant companies sold buggies for young children. The second defendant, who was a director of the first defendant (TFK), wrote to the claimant, threatening proceedings for patent infringement in relation to a patent owned by the third defendant. The patent, number EP (UK) 1,795,424 was entitled 'transformable seat inlet for child's or doll's pram'. It was alleged that the claimant had infringed with regard to sales in the UK of the claimant's product called the Promenade.
The Promenade had a seat that converted into a carry cot and vice versa. The claimant commenced proceedings for unjustified threats and a claim for revocation in the ground that the defendant's patent was invalid. The first defendant responded with a claim for infringement.
The claimant submitted that the patent was not infringed and was invalid for obviousness. It relied on three factors: a Chinese patent (Goodbaby); a UK patent application (Bigo) and common general knowledge, based on a product called the Bugaboo Frog (the Frog). Goodbaby, which was entitled 'seat pocket for a stroller', could be turned from a seat to a cot and vice versa. It entailed fixing the seat plate of the cot to a chassis. Bigo, which was entitled 'Convertible carrier for an infant', described a chair that could be converted into a cot.
The claimant contended that the state of the common general knowledge meant that it would have been obvious to fit the Bigo insets to a chassis so that it could be removed. TFK contended that the idea of removable attachment to a chassis was not disclosed. It further submitted that the special feature of the patent was not present in the arrangement disclosed in Bigo. Frog, which was part of the common general knowledge, had two fabric inserts, used either when it was being used as a cot or a seat.
With regard to Frog, the issue arose as to whether the change to a single fabric insert had been obvious. TFK contended that to change the product to a single fabric insert would be to abandon its basic design. It was common ground that the relevant person skilled in the art in the instant case was a person interested in designing buggies. They were likely to have a degree in industrial design or mechanical engineering. It was further necessary to determine the relevant common general knowledge applicable to the case. In considering the issues, the court had regard to European Standard EN1888:2003.
The court ruled: (1) The relevant common general knowledge had three elements: safety standards; buggies that were sufficiently well known to be part of the common general knowledge; and design features and techniques. The safety standards included the concepts of convertible products and combination products in European Standard EN1888:2003. Several other buggies on the market in 2005 were part of the common general knowledge.
A number of design features were part of the common general knowledge: (i) using lockable connectors or adapters on a chassis to enable different components to be attached to the same chassis; (ii) foldable fabric seat units; (iii) moveable foot sections; (iv) reclining mechanisms in general (v) frame construction from tubular aluminium or steel with plastic moulded joints. An important area of common general knowledge related to the design techniques used to handle fabric. Buggies generally had fabric on the sides and often under the base. The use of gussets, zips and straps to gather up and control such fabric were all well known expedients in the relevant field (see , - of the judgment). Pozzoli SPA v BDMO SA  All ER (D) 275 (Jun) applied; KCI Licencing v Smith & Nephew  FSR 31 applied.
(2) On the evidence, to produce a product within the claim starting from Goodbaby, a skilled person would have to both attach the product to a chassis removably and employ fabric. Both steps were obvious and would be done by an uninventive skilled person putting Goodbaby into practice. It was not inevitable that a skilled person putting Goodbody into practice would produce an arrangement within the claim. However, an arrangement within the claim was something which a skilled person could produce without exercising any inventive step, given Goodbaby (see  of the judgment). The patent was obvious (see  of the judgment).
(3) On the evidence, it would have been obvious to a skilled person reading Bigo in 2005 to fit the arrangement disclosed in a removable fashion and therefore to use adapters. However, there was nothing in the common general knowledge which made it obvious to use the arrangement to be reconfigured between seat and cot while minimising the disturbance to the child. There was no reason why a skilled person would produce a product within the claim, acting without invention over Bigo (see  of the judgment).
(4) With regard to the Frog, given that the product was common general knowledge, if the change to a single fabric insert had been obvious, it was surprising that that had not been done already. TFK was right to argue that to change the product as suggested by the claimants would be to abandon its basic design. On the evidence, the arguments over the Frog were tainted with hindsight and the obviousness attack would be rejected (see  of the judgment).
Andrew Lykiardopoulos (instructed by Fasken Martineau) for the claimant; Douglas Campbell (instructed by Jennings LP) for the defendants.