Adaptive Spectrum and Signal Alignment Inc. v British Telecommunications Plc
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Birss,Mr Justice Birss |
| Judgment Date | 18 December 2014 |
| Neutral Citation | [2014] EWHC 4194 (Pat) |
| Court | Chancery Division (Patents Court) |
| Docket Number | Case No: HC 11 C04102 |
| Date | 18 December 2014 |
[2014] EWHC 4194 (Pat)
The Hon. Mr Justice Birss
Case No: HC 11 C04102
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
PATENTS COURT
The Rolls Building
7 Rolls Buildings
Fetter Lane
London EC4A 1NL
Iain Purvis QC and Joe Delaney (instructed by Wragge Lawrence Graham & Co LLP) for the Claimant
Roger Wyand QC and Hugo Cuddigan (instructed by Bird & Bird LLP) for the Defendant
Hearing dates: 13 th, 14 th November 2014
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
| Topic | Paragraphs |
| Introduction | 1 |
| Technical background | 5 |
| The issues | 6 |
| The 790 patent | 12 |
| Claim construction | 18 |
| The NGA Equation system | 36 |
| Does the NGA Equation system infringe? | 50 |
| The Proposed Further NGA Equation system | 80 |
| Abuse of process | 83 |
| Conclusion | 96 |
| Annex |
Introduction
In this action the defendant (BT) seeks a declaration of non-infringement against the claimant (ASSIA) concerning ASSIA's patent EP (UK) 1,869,790. That patent is entitled "DSL state and line profile control". It has an earliest claimed priority date of 3 rd March 2005, a filing date of 28 th February 2006 and a date of grant of 23 rd May 2012. ASSIA denies that the declaration should be granted.
The case follows on from the trial I heard in autumn 2013 leading to a judgment on 3 rd December 2013 [2013] EWHC 3768 (Pat). The conclusion was that BT's broadband access network called Next Generation Access (NGA) infringed the 790 patent, which was valid. That case also concerned two other broadband access networks of BT and another patent but they are not germane to this current hearing. BT appealed the issue of infringement of 790 but the Court of Appeal ( [2014] EWCA Civ 1462) dismissed the appeal in relation to 790.
The circumstances in which this matter arises are as follows. Once BT saw the trial judgment finding that the NGA system infringed 790, they changed the system. The point of the change was to seek to render it non-infringing. The change involves replacing loop software with an equation. BT contended that the changed NGA system using the equation did not infringe. Since then (December 2013) BT has used the changed system. ASSIA did not agree. ASSIA contends the changed system does infringe. I gave directions for the resolution of this issue. This hearing is the result. By the time the matter came before me no further witness statements or experts reports were needed from either party. Before the court is a document called the "Workaround Product and Process Description" which describes the changed NGA system and is signed with a statement of truth by Mr Croot, the relevant BT engineer. Also before the court are various statements of case from each side articulating their cases why the changed system does or does not infringe. I will refer to the changed system which is the main focus of this case as the "NGA Equation system".
In addition BT advanced a further proposal and contended that even if the NGA Equation system infringed, this further proposed system would not. So there are two systems before the court, the NGA Equation system itself and what I will call the "Proposed Further NGA Equation system".
Technical background
A detailed exposition of the technical background was set out in the trial judgment at paragraphs 16–45. In the Court of Appeal Floyd LJ summarised the relevant background in paragraphs 4–12. Neither side criticised either summary. I will not extend the length of this judgment by inserting them. This judgment will assume familiarity with the terminology used in those judgments.
The issues
The main issue is whether the NGA Equation system infringes claims 1 and 13. ASSIA pleaded infringement of both claims 1 and 13. At one stage BT suggested a case on claim 13 was not pleaded but I find that it was.
The issue developed as follows. The NGA system was found to infringe because the software includes the Cap Level table which was found to be a profile state transition matrix within claim 1 and because the system uses the Cap Level table to select a target profile in a loop routine, running down the profiles until the relevant criterion is satisfied. That way the correct target profile is found. In the NGA Equation system the Cap Level table still remains but the table is not used in a loop routine. The loop has been replaced by an equation which, when computed, produces a single answer which identifies the cap level of the right target profile. So, contended BT after trial, there is no use of a profile state transition matrix and no selection of one of a plurality of target profiles from that matrix.
ASSIA's case is as follows. It pointed to the existence of another table used in the NGA system called the Service Profile Table. The Service Profile Table is a table consisting of an entry for all the profiles in the system identifying a file name containing the details of the profile parameters, indexed by the upstream and downstream cap level and interleaving level. When the controller has chosen a profile, it sends the filename to the DSLAM. The DSLAM uses the filename to extract the details of the profile needed in order to configure the line in question.
ASSIA contended that the Service Profile Table's existence or at least its significance only emerged after trial. ASSIA argues now that the Service Profile Table is a profile state transition matrix which satisfies all the requirements of the claim. It also argues that although it is true that the equation no longer loops through the Cap Level table to select a profile, by using the software the controller still identifies a target profile by reference to its cap level. The controller then selects the target profile in the Service Profile Table using the cap level and the claim is satisfied.
BT disputes that the existence or significance of the Service Profile Table only emerged after trial. It also denies that the Service Profile Table is a profile state transition matrix within the claim and denies that the NGA Equation system operates in accordance with the claims.
A second issue arises about abuse of process. I will address that below once the main issue has been resolved.
The 790 patent
The judgments at trial and on appeal address the 790 patent and the issues of claim construction which arose. I will start by borrowing from the judgment of Floyd LJ:
13. The specification of 790 is entitled "DSL state and line profile control". The invention is said to relate to managing line profiles in a DSL system. An example of a line profile is set out at [0003], identifying, amongst other things, maximum and minimum upstream and downstream data rates as controllable profile parameters. At [0004] it is explained that operators currently use these profiles in a simple manner to control only an individual line's data rate, and perhaps forward error correction margin. These were, therefore, often controlled manually, thereby causing that line to remain in the same profile until maintenance personnel intervened to set a new profile, perhaps in response to a customer request for a faster service. Even when a line is permitted to change profile automatically, only a few transitions are considered. Thus the specification explains at [0006] that:
"Systems, methods and techniques that permit implementation of a wide variety of line profiles and transitions between such profiles automatically and with ease in communication systems such as DSL systems would represent a significant advancement in the art. In particular, prioritization and implementation of transition options in the communication system would represent a considerable advancement in the field of DSL service rates and associated ranges."
14. Having thus set out its overall objective, the patent then sets out two aspects of the invention, along the lines of the independent claims. The claims refer to three concepts which are important: a "state transition matrix", "priority" and "feasibility". An understanding of these can be gleaned from the specification at [0043] to [0048]. The judge summarised them in this way:
"197. The patent uses two concepts which are key to the method of selecting profiles it discloses. These are priority and feasibility. Neither expression is a term of art and the skilled reader's understanding of them would come from reading the patent itself. Essentially the idea is that the system will extract out from a set of possible profiles which a line could adopt, a set of feasible profiles. That is a set of profiles which would provide acceptable operation of the line in the given circumstances. The set of possible profiles is divided into those which are feasible and those which are infeasible. This still presents a problem since the system has to have a means for selecting a particular profile to use from the group of profiles which are determined to be feasible. This is the point at which the priority concept plays a part. The possible profile transitions have an allocated priority which is independent of line conditions. It is an inherent property of each transition from a given profile to each target profile. The transition to a feasible profile with the highest priority is the one which is selected. The DSL line is then operated using this profile.
198. To carry out the method disclosed, the patent describes the use of a profile state transition matrix. The profile state transition matrix is a matrix which records the state transitions which are allowed and contains the priority of each possible transition. An...
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Adaptive Spectrum and Signal Alignment Inc. v British Telecommunications Plc
...BT [2013] EWHC 3768 (Pat); [2014] EWCA Civ 1462, and (for Birss J's decision in respect of the first modification) ASSIA v BT No 2 [2014] EWHC 4194 (Pat). 9 There were several elements to the overall settlement, which are discussed further below. Broadly, each of BT and ASSIA granted a r......