Gareth Kevin Glass and Others v freyssinet Ltd

JurisdictionEngland & Wales
JudgeJudge Hacon
Judgment Date21 October 2015
Neutral Citation[2015] EWHC 2972 (IPEC)
Docket NumberCase No: IP14M01755
CourtIntellectual Property Enterprise Court
Date21 October 2015

[2015] EWHC 2972 (IPEC)

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

INTELLECTUAL PROPERTY ENTERPRISE COURT

Royal Courts of Justice, Rolls Building

Fetter Lane, London, EC4A 1NL

Before:

His Honour Judge Hacon

Case No: IP14M01755

Between;
(1) Gareth Kevin Glass
(2) Adrian Charles Roberts
(3) Nigel Davison
Claimant
and
freyssinet limited
Defendant

Richard Davis (instructed by Mathys & Squire LLP) for the Claimant

Lindsay Lane (instructed by Dehns) for the Defendant

Hearing dates: 8–9 September 2015

Judge Hacon

Introduction

1

The Claimants are joint proprietors of UK Patent No. 2 426 008 ("the Patent"). They are also the joint inventors of the invention claimed in the Patent, entitled a "Treatment process for concrete". They allege that the Defendant ("Freyssinet") has infringed the Patent. Freyssinet denies infringement and counterclaims for revocation on the grounds of lack of novelty and inventive step.

2

Mr Davis appeared for the Claimants and Ms Lane for Freyssinet.

The technology

3

Reinforced concrete is concrete containing bars made from another material, usually steel, which confer added strength (known as 'rebars'). The strength in compression of the concrete is complemented by the higher tensile strength and ductility of steel. Calcium hydroxide and alkaline salts within the concrete combine to create an iron oxide film on the surface of the steel which protects it from corrosion. That film may be broken down, typically by atmospheric carbon dioxide or carbon dioxide dissolving in rain water, creating carbonic acid, which enters the pores of the concrete and reacts with the iron oxide layer. Alternatively chloride ions from de-icing salts or seawater may destabilise the layer. Corrosion of the steel is then liable to occur. Rust created by corrosion occupies a volume greater than the steel it replaces, creating an expansive force which leads to cracking and spalling (surface failure leading to flaking) of the concrete. The structural capacity of the concrete accordingly suffers. In addition the cracks allow further ingress of water, accelerating the deterioration.

4

At the priority date of the Patent (16 March 2005) a number of means were known to arrest the corrosion of rebars. One was 'cathodic protection'. An electrochemical cell is created within the concrete in which the rebar acts as a cathode and this inhibits its corrosion.

5

Two types of these electrochemical cells were known. In the first, a DC current supply is used to create an 'impressed current'. An anode is located in the concrete and connected to the positive terminal of the current supply. The rebars are connected to the negative terminal so that they become cathodes. The concrete serves as the electrolyte. This is known as an impressed current cathodic protection system.

6

An alternative arrangement relies on the difference in electrode potential between metals. Where, for instance, zinc and steel are electrically connected and both contained in an electrolyte, an electrochemical potential is created between them so that current will flow. The zinc will form the anode and the steel the cathode. The zinc anode will then corrode preferentially. The zinc (in this example) forms what is known as a sacrificial or alternatively a galvanic anode. In any such arrangement, the metal to be protected must be less electrochemically active than the metal which is to be sacrificed. Using the traditional language of chemists, it must be a more 'noble' metal than that of the sacrificial anode. This arrangement is known as a sacrificial or galvanic cathodic protection system.

The invention in summary

7

The invention claimed in the Patent is a hybrid system for protecting steel rebars in reinforced concrete, combining the impressed current and sacrificial anode techniques. There is an initial impressed current phase in which an external source of DC current is used with the steel serving as the cathode and another less noble metal as the anode. This is followed by a longer sacrificial phase in which the external DC potential is no longer applied but the difference in electrode potential between the metals sets up a flow of a current and thus a sacrificial system to protect the steel.

The witnesses

8

I heard expert evidence from Dr David Gareth John on behalf of the Claimants and from Dr Paul Lambert on behalf of Freyssinet, both of whom were very helpful. There was also evidence of fact from a number of witnesses on each side, all of whom I think were doing their best to give their evidence fairly. I refer to them in context below.

The person skilled in the art

The law

9

The person skilled in the art is likely to have a practical interest in the subject matter of the invention and practical knowledge and experience of the kind of work in which the invention is intended to be used, see Catnic Components Ltd v Hill & Smith [1982] RPC 183, at 242–3. The skilled person has an unlimited capacity to read with care the cited prior art which is deemed put before him (to be taken to include her) and, where appropriate, the patent in suit. He will consider the prior art having in mind both the common general knowledge retained by those in the technical field from which he is drawn and also the common prejudices that prevail among such individuals. He is unimaginative and is without any inventive capacity. One consequence is that he will not combine the teaching of one item of cited prior art with another unless either there is an express cross-reference or the combination would be self-evident enough to occur to his unimaginative mind, see Technip France SA's Patent [2004] R.P.C. 46, at [6]–[10].

This case

10

Ms Lane submitted that the skilled person would work for a specialist supplier of anodes and have a degree in materials science or civil engineering, which in either case would have included a module in corrosion. Aside from some minor debate about whether the skilled person would have further formal qualifications, on which nothing turned, this characterisation of the skilled person was accepted. I would add, for the avoidance of doubt, that the skilled person would be familiar with the manufacture of anodes used in the cathodic protection of steel rebars.

Common general knowledge

11

Kitchin J summarised what constitutes common general knowledge in Generics UK Ltd v Pharmaceutical Co Ltd [2008] EWHC 2413 (Pat); [2009] R.P.C. 4:

"[37] Thus the common general knowledge is the common knowledge in the field to which the invention relates. The notional skilled addressee is the ordinary man who may not have the advantages that some employees of large companies may have and information does not form part of the common general knowledge simply because it is known to some persons in the art. It must be generally known and generally regarded as a good basis for further action by the bulk of those engaged in that art before it becomes part of their common stock of knowledge relating to the art, and so part of the common general knowledge. That is not to say the skilled person must have it at the forefront of his mind. As Laddie J. explained in Raychem Corporations' Patents [1998] R.P.C. 31 at 40, it includes all the material which he knows exists and which he would refer to as a matter of course if he cannot remember it and which he generally understands is sufficiently reliable to use as a foundation for further work."

12

Freyssinet pressed for the inclusion of two particular items within the common general knowledge. The first was the use of titanium connectors. Connectors are used for the electrical connection of anodes to other parts of a cathodic protection system and I will say more about them below. Dr Lambert, Freyssinet's expert witness, said that he spent the first twelve years of his career using only titanium connectors. I did not understand the Claimants to dispute that in non-specific terms it was part of the common general knowledge that titanium connectors were used.

13

The second item concerned the use of arrays of discrete galvanic anodes embedded in concrete. Dr John, the Claimants' expert, was of the view that discrete anodes formed part of the common general knowledge at the priority date but according to him the skilled person would have believed that they did not provide an economical repair and refurbishment option for reinforced concrete. Freyssinet wished to take the common general knowledge of discrete anodes further than that and suggested that a product called 'Galvashield CC', made by Fosroc International Limited ("Fosroc"), would have been part of the common general knowledge. Dr John accepted that Galvashield CC anodes were an off-the-shelf product of Fosroc, of which the skilled person would have been aware, and that the product included cylindrical anodes which could be inserted in holes in the concrete and connected by embedded wires. However the date by which the skilled person would have become aware of Galvashield CC anodes was not established. Dr John said that he did not recall seeing major presentations of the product at conferences he attended in the 2004/2006 period and was unable to say when the product was first advertised. I am not prepared to assume that knowledge of Galvashield CC anodes formed part of the skilled person's common general knowledge in March 2005.

The Patent

14

The Patent relates to the two-stage process for protecting the steel in reinforced concrete referred to above. Anodes are embedded in the concrete. There is what the Patent describes as a temporary and impressed high-current phase using a DC source, which is said to rapidly arrest the corrosion process by...

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