Brigade (BBS-TEK) Ltd v Amber Valley Ltd
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Birss,Judge Birss |
| Judgment Date | 19 April 2013 |
| Neutral Citation | [2013] EWPCC 16 |
| Date | 19 April 2013 |
| Court | Patents County Court |
| Docket Number | Case No: CC12P00934 |
[2013] EWPCC 16
IN THE PATENTS COUNTY COURT
Rolls Building
7 Rolls Buildings
Fetter Lane
London EC4A 1NL
His Honour Judge Birss QC
Case No: CC12P00934
Alan Johnson of Bristows for the Claimant
Guy Tritton (instructed by Spratt Endicott) for the Defendant
Hearing dates: 4th, 5th March 2013
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.
His Honour Judge Birss QC
| Topic | Paragraphs |
| Introduction | 1 |
| The witnesses | 12 |
| The person skilled in the art | 16 |
| Common general knowledge | 18 |
| The patent | 32 |
| The claims and construction | 39 |
| Infringement | 64 |
| Added matter | 74 |
| Novelty | 91 |
| Obviousness | 100 |
| Neuhaus | 106 |
| Nakagawa/known spoken alarms | 113 |
| Haustein | 118 |
| The use claim and s60(2) | 128 |
| Conclusion | 131 |
Introduction
This is a patent action concerning UK Patent No. 2,318,662 entitled "Improvements relating to locating devices". The claimant, Brigade, was first a licensee and then became proprietor of the patent. Brigade and the defendant, Amber Valley, are competitors. They sell vehicle alarms. The Amber Valley product alleged to infringe is called the Ecolarm. It is a vehicle reversing alarm.
Before me Brigade were represented by Mr Alan Johnson, a solicitor advocate of Bristows and Amber Valley were represented by Mr Guy Tritton, counsel instructed by Spratt Endicott.
Everyone is familiar with the alarms on police cars and ambulances. These alarms make very loud sounds in order to attract attention and warn people that the emergency vehicle is coming. Also familiar today are reversing alarms on large trucks and buses. The familiar reversing alarm makes a bleeping sound to warn people nearby that the vehicle is reversing. All these alarms can be called tonal alarms.
The idea on which the invention is based is that it would be an advantage if alarms made a sound which was easy for human beings to locate. In other words they should make a sound which allows a person to determine the direction from which the sound is coming. The problem on which the invention is based is that the sounds used for many traditional alarms are of a character which makes location difficult. So, considering a reversing alarm, the bleeping may be very easy to hear, but a bleeping sound is difficult to locate. The person behind the reversing bus will hear the alarm, realise there is a reversing vehicle somewhere but not appreciate quickly enough where the reversing bus actually is. Accidents can happen.
The core idea of the invention is an alarm in which the sound emitted is broad band noise. "Broad band noise" is the term used in the patent claims. The paradigm example of broad band noise is white noise, such as the hissing sound which can be heard on a mistuned radio in between stations. Amber Valley accepts that its Ecolarm emits broad band noise.
Experts in psycho-acoustics have known for decades that pure tones were difficult to locate whereas more complex sounds were easier to locate. One of the key elements of more complex sounds is that they contain many more frequencies than a pure tone. Speech and music are examples of complex sounds. They are easier to locate than pure tones. White noise contains all frequencies and is easy to locate. In the 1960s some experiments were conducted on people to test their ability to localise sounds (the Haustein paper). In these experiments the subjects tried to locate the direction in which sounds was coming from loudspeakers emitting white noise.
In 1984 a patent application (Nakagawa) published the idea of using a spoken alarm to warn people that a vehicle was turning or reversing. Since 1989 speaking alarms have been used as one kind of vehicle reversing alarm.
In 1990 there was a proposal in a patent application (Neuhaus) to use a kind of tonal whooping sound in a vehicle emergency alarm in order to make it easier to locate.
Brigade argues that at all times up to and for a while after the priority date in 1995 there was a culture in the alarm industry focussed on using tonal alarms; at the priority date of the patent a vehicle alarm which emitted white noise was a new product.
The parties called expert evidence from acoustic engineers with considerable experience. Brigade relied on Dr Geoff Leventhall and Amber Valley relied on Mr Stephen Moore. Neither party criticised the other's expert witness.
Brigade contends the patent is valid in amended form and infringed. Amber Valley denies infringement and argues that the patent (even if amended) is invalid. The validity attack is based on added matter as well as lack of novelty and obviousness over the prior art: Haustein, Neuhaus and the known speaking alarms, which were not taken separately from Nakagawa.
The witnesses
Dr Leventhall graduated from the University of London with a BSc in Physics in 1950 followed by an MSc and then a PhD in acoustics. He completed his PhD in 1964. After lecturing at Chelsea College and working at WS Atkins, in 1987 he became Professor and Head of the Institute of Environmental Engineering at London South Bank University. In 1992 he left to follow his own interests as a full time consultant. He has provided independent consultancy to Brigade since early 2006.
Mr Moore has worked as a consulting engineer in acoustics for 25 years. He has a BSc in mechanical engineering and an MSc in Acoustics from Heriot-Watt University. He is a Chartered Engineer, member of the Institute of Marine Engineers, Scientists and Technicians and a member of the Institute of Acoustics. Today he is a director of the consulting practice MoirHands having previously worked in the Acoustics group at YARD Ltd.
Brigade also relied on a witness statement from Mr Stephen Hall, a distributor of Brigade alarms. His evidence was directed to knowledge of the trade and of customers. He was not cross-examined.
Amber Valley also relied on the evidence of its managing director Mr David Morewood. He gave evidence about his knowledge and the operation of his equipment. He was cross-examined. He gave his evidence fairly and Mr Johnson did not criticise him.
The person skilled in the art
The parties were agreed that the person skilled in the art in this case was an acoustic engineer with a knowledge of electronics.
Acoustic engineers were typically trained to degree level in engineering, took one or two modules in acoustics and then worked in one of three places: local authorities dealing with environmental health, industrial noise and noise pollution; private practice consultancy dealing with industrial noise, sound insulation or more specialised matters; or in industry in larger companies usually on noise and vibration control.
Common general knowledge
The law as regards common general knowledge was not in dispute. Brigade cited Beloit v Valmet [1997] RPC 489 at pages 494–495, Generics v Daiichi [2009] RPC 4 at paragraph 37 and KCI Licensing v Smith & Nephew [2010] EWHC 1487 (Pat) at paragraphs 105–115.
A number of matters of common general knowledge were not in dispute, as follows:
i) tonal alarms were used on reversing vehicles;
ii) voice announcement warnings were used on reversing vehicles;
iii) loud speakers could be used to emit broad band noise; and
iv) audio signals of any frequency in the audible range can be generated and outputted.
The major dispute on common general knowledge relates to what Brigade has called "locatability" of sounds. There is also a point to mention on the culture of the alarm industry.
Locatability of sounds
For the purposes of this case the parties agree that the auditory spectrum can be regarded as running from about 20Hz to 20 kHz. Humans tend to be most sensitive to sounds in the frequency range from about 300Hz to 5 – 6kHz.
How we identify the direction from which a sound emanates has been studied and known for well over a century. Lord Rayleigh carried out preliminary work on the issue in the 1870s. Humans use a number of different cues to locate sounds. They include differences in the intensity of sound between each ear and differences in the arrival time. Intensity differences are most pronounced at higher frequencies whilst time and phase differences are useful for location at low frequencies. Thus a sound comprising both low and high frequencies allows the listener to use multiple cues for location. Sounds which change their intensity or spectral structure over time allow the listener to use the time of arrival of the transients to provide cues for localisation which are not subject to phase ambiguities. Head movements are also used to help locate sounds and the shape of the pinnae, the fleshy parts of the ears, plays a role, especially at high frequencies. These considerations explain why, as a matter of fact, the locatability of pure continuous tones is low whereas the locatability of complex sounds and white noise is much higher.
At this point I should explain white noise. The term has a narrow precise meaning and a looser, broader meaning. To be precise white noise means random noise with a frequency band covering the whole auditory spectrum and with the same power level across the whole spectrum. When used with precision the term white noise may be distinguished from other "colours" of noise such as pink noise, in which the power level drops across the frequency spectrum. On the other hand the term "white noise" is also used in a looser sense to refer more generally to any random noise with a fairly wide frequency spectrum. In this action the term "white noise" was used in its...
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