Improver Corporation v Remington Consumer Product Limited
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''Improver Corporation v Remington Consumer Product Limited 990F.S.R. 181'' is a leading
United Kingdom The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Europe, off the north-western coast of the European mainland, continental mainland. It comprises England, Scotlan ...
case on patent infringement, particularly in relation to how to establish what specifically a
patent A patent is a type of intellectual property that gives its owner the legal right to exclude others from making, using, or selling an invention for a limited period of time in exchange for publishing an enabling disclosure of the invention."A ...
covers.


The Catnic Decision

The earlier case of '' Catnic Components Ltd. v Hill & Smith Ltd.'',
Lord Diplock William John Kenneth Diplock, Baron Diplock, (8 December 1907 – 14 October 1985) was a British barrister and judge who served as a lord of appeal in ordinary between 1968 and until his death in 1985. Appointed to the English High Court in 1 ...
had established the principle that patents were to be read in a "purposive" manner. The question to be answered in establishing infringement, as formulated by Lord Diplock, was a complex, multi-part enquiry.


The Improver Questions

In the ''Improver'' case, Mr Justice Hoffmann (as he then was), on behalf of the Patents Court, reformulated the test as a series of three questions to establish whether a variant (alleged infringing article) infringes the claims of a patent. The variant will not infringe if any of the following are true: * The variant has a material effect on the way the invention works. * The fact that the variant has no material effect on the way the invention works would not have been obvious to an expert in the field. * That an expert in the field would have taken from the language used in the patent that strict compliance with the primary meaning was an essential requirement of the invention.


Facts and findings of the case

In the ''Improver'' case, the patent covered a depilatory device having a curved "helical spring" driven by a motor. The spring when rotated gripped hairs between its coils and plucked them from the skin. The alleged infringement replaced the spring with a rubber rod having slits in its surface. The question was whether the slitted rubber rod was "a helical spring". The judge answered the three questions as follows: (i) the change to a rubber rod had no material effect on the way the invention worked; and (ii) it would have been obvious to an expert that the rubber rod would work in the same way; ''but'' (iii) the expert would have understood from the patent that the patentee meant to confine his claim to a "helical spring", in its primary meaning and not in a wide generic sense. For this last reason, the rubber rod did not infringe.


Continued relevance

These so-called "Improver questions" were relied on throughout the 1990s and early 2000s by the United Kingdom Courts, but in 2004 their continued relevance was called into question by the same judge who had formulated them, now Lord Hoffmann, in the case of ''
Kirin-Amgen v Hoechst Marion Roussel ''Kirin-Amgen, Inc. v Hoechst Marion Roussel Ltd.'' is a decision by the House of Lords of England and Wales. The judgment was issued on 21 October 2004 and relates to the scope to be accorded to patent claims, including the doctrine of equivalen ...
'': The current position, therefore, is that the House of Lords has held that the principle of purposive construction is entirely in accordance with the Protocol to Article 69, but that the Improver questions may not represent the best approach for dealing with every infringement issue. See ''
Kirin-Amgen v Hoechst Marion Roussel ''Kirin-Amgen, Inc. v Hoechst Marion Roussel Ltd.'' is a decision by the House of Lords of England and Wales. The judgment was issued on 21 October 2004 and relates to the scope to be accorded to patent claims, including the doctrine of equivalen ...
''.


Foreign relevance

The ''Improver'' decision was cited with approval by the Supreme Court of Canada in its landmark 2000 ''
Free World Trust v Électro Santé Inc ''Free World Trust v Électro Santé Inc'', 0002 S.C.R. 1024, 2000 SCC 66, is a leading Supreme Court of Canada decision on patents, namely claim construction and the necessity to identify essential elements and non-essential elements. Along with ...
'' decision. The ''Improver'' Questions continue to be relevant for the analysis of essentiality under Canadian law.


References

{{reflist United Kingdom patent case law Court of Appeal (England and Wales) cases 1989 in case law 1989 in British law