Jarden Consumer Solutions (Europe) Ltd SEB SA (Defendant/Part 20 Claimant) v Groupe SEB UK Ltd (Part 20 Claimant)
| Jurisdiction | England & Wales |
| Judge | The Hon Mr Justice Arnold,Mr Justice Arnold |
| Judgment Date | 28 February 2014 |
| Neutral Citation | [2014] EWHC 445 (Pat) |
| Docket Number | Case Nos: HC12A03904, HC12B04588 |
| Court | Chancery Division (Patents Court) |
| Date | 28 February 2014 |
[2014] EWHC 445 (Pat)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
PATENTS COURT
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
The Hon Mr Justice Arnold
Case Nos: HC12A03904, HC12B04588
and
Benet Brandreth, instructed by Bird & Bird LLP, for SEB
Andrew Lykiardopoulos instructed by, and Graham Burnett-Hall of, Marks & Clerk Solicitors LLP) for Jarden
Hearing dates: 4–6, 10 February 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.
Contents
| Topic | Paragraphs |
| Introduction | 1–3 |
| The witnesses | 5–11 |
| Expert witnesses | 4–7 |
| Factual witnesses | 8–11 |
| Background | 12–20 |
| The Patent | 21–35 |
| The claims | 36 |
| The skilled team | 37–38 |
| Common general knowledge | 39–53 |
| Domestic deep fryers | 41 |
| "Cool touch" or insulated outer housings | 42 |
| Removable vessels | 43 |
| Hinged lids | 44 |
| Steam venting | 45 |
| Electrical connections through hinges | 46 |
| Methods of heating, heat sources and methods of frying | 47 |
| Temperature control | 48 |
| Rotating components | 49 |
| Aesthetics | 50 |
| Safety regulations | 51 |
| Other matters | 52 |
| Construction | 54–82 |
| The law | 54–55 |
| Dry fryer | 56–62 |
| For automatically coating said food with a film of fat | 63–65 |
| Substantially sealed | 66–68 |
| Claim 8 | 69–70 |
| Mounted on the main body | 71–81 |
| Flow of heat | 82 |
| The prior art | 83–99 |
| Vogt | 83–93 |
| Herbst | 94–97 |
| Siu | 98–99 |
| Obviousness | 100–123 |
| The law | 100–105 |
| General points | 106–110 |
| Obviousness over Siu | 111–112 |
| Claim 1 | 111 |
| Claim 3 | 112 |
| Obviousness over Herbst | 113–118 |
| Claim 1 | 114 |
| Claim 3 | 115–116 |
| Claim 8 | 117–118 |
| Obviousness over Vogt | 119–123 |
| Claim 10 | 122 |
| Infringement | 124–140 |
| The Halo | 124–129 |
| Jarden's experiments | 130 |
| Claim 1 | 131–136 |
| Claim 3 | 137 |
| Claim 8 | 138–139 |
| Claims 10, 11 and 13 | 140 |
| Summary of conclusions | 141 |
Introduction
The Defendant is the registered proprietor of European Patent (UK) No. 2 085 003 entitled "Fryer with automatic fat coating" (the official title is "deep fryer" rather than "fryer", but this is a mistranslation) ("the Patent"). The Second Part 20 Claimant claims to be the exclusive licensee under the Patent. The Defendant and the Second Part 20 Claimant (together, "SEB") claim that the Claimant ("Jarden") has infringed the Patent by importing and selling a fryer called the Breville Halo Health fryer ("the Halo").
Jarden denies infringement and claims that the Patent should be revoked on the grounds of obviousness over three items of prior art:
i) German Patent Application No. 2 102 062 entitled "Method and device for cooking food" filed on 16 January 1971 and published on 27 July 1972 ("Vogt");
ii) United States Patent No. 4,417,506 entitled "Home Cooking appliance" filed on 23 September 1981 and published on 29 November 1983 ("Herbst"); and
iii) United States Patent No. 6,054,681 entitled "Cooking apparatus" filed on 16 February 1999 and published on 25 April 2000 ("Siu").
There is no challenge to the claimed priority date of the Patent, which is 8 June 2004. The specification of the Patent is in French, but there is an agreed translation to which I shall refer. In response to the allegation of obviousness, SEB rely on the commercial success of their Tefal Actifry fryer ("the Actifry") which embodies the patented invention.
The witnesses
Expert witnesses
SEB's expert witness was Martin Nicholson. He obtained a degree in Mechanical Engineering with Business in 1988. He was employed as a project engineer by Kenwood from 1993 to October 1999. Since then, he has run his own product design consultancy. Both during his employment by Kenwood and since then, he has been involved in the design of a variety of food-related appliances, including deep fryers. He is named as an inventor on nine patent applications.
Mr Nicholson's reports were extremely thorough. They were also longer than they needed to be, because a certain amount of space was devoted to issues of construction falling outside Mr Nicholson's province; but I do not blame Mr Nicholson for that. Consistently with his reports, Mr Nicholson's oral evidence was very careful.
Jarden's expert witness was Dov Glucksman. He obtained a BS in Mechanical and Nuclear Engineering and an MS in Aeronautical Engineering in the early 1960s. Since 1974, he has been President and head of the technical team at his own product development company, Appliance Development Corporation, which specialises in designing small electrical appliances. He also founded, and was until very recently Chairman of, Brew1 Technologies Inc, a company engaged in manufacturing and distributing single-serve coffee brewing systems. He has not been involved in designing a deep fryer, but has designed other cooking appliances such as grills, griddles and breadmakers. He is named as an inventor on over 120 patents and patent applications.
Although he gave his oral evidence fairly, Mr Glucksman was not impressive as an expert witness. Cross-examination revealed that he had not read the key documents in the case with the care that was required. In the case of Siu, he made an elementary and inexplicable error in his reading of the document; but he was somewhat cavalier in his approach in a number of other cases as well. Accordingly, on technical matters I have accorded more weight to the evidence of Mr Nicholson.
Factual witnesses
SEB called Valérie Vuillemot. Ms Vuillemot was employed by SEB from 1997 to 2012. She was the product manager at SEB when the Actifry was designed and launched. She gave evidence about the commercial success of this product.
In addition, SEB relied on a witness statement of Bernard Bois which was served under a hearsay notice. He worked at Moulinex. He gave evidence about a low-fat fryer Moulinex was in the early stages of developing before it became insolvent in 2001.
Jarden called Craig Asbridge and Christopher Salmon. Mr Asbridge is Jarden's Engineering Manager at Jarden and verified Jarden's Product Description. He instructed Mr Salmon to undertake some experiments for the purposes of this litigation.
All of the factual witnesses who gave evidence in person were straightforward witnesses.
Background
There are three main ways in which to cook food. The food may be heated by conduction, as by placing the food on a hot surface; by convection, as by placing the food in an oven or in boiling water; or by radiation, as by grilling or microwaving. It has also long been common to heat food by a combination of two or more of these methods.
Frying food involves the use of melted fat or oil (like the Patent, I shall use these expressions interchangeably) as a cooking medium. Since oil has a high boiling point, the temperature of the oil can be raised to a point which achieves rapid cooking of the food. In conduction cooking, the oil also provides a good thermal path from the heated surface to the food.
Two main types of frying have long been known: deep frying, where the food to be cooked is immersed in a bath of hot oil; and shallow frying, where the food is placed on a hot surface covered with a layer of oil.
Within the general category of shallow frying, various different techniques exist, often varying with the cuisine: pan-frying, sautéing, stir-frying and so forth. In most cases of shallow frying, oil will be added to the pan. Sometimes the food itself contains sufficient fat that additional oil is not needed, particularly if the pan has a "non-stick" surface such as a Teflon coating. Naturally, different types of frying are suited to different kinds of foods and achieving different kinds of effects.
In shallow frying, there are significant temperature variations between the side of the food in contact with the hot surface and the other sides. For that reason, and to stop the food sticking to the hot surface, the food is usually turned to bring different sides into contact with the hot surface. Even with turning, it can be hard to cook the food evenly, depending on the shape and thickness of the food. By contrast, deep frying has the advantage that all sides of the food are evenly cooked.
Getting good quality chips is difficult without deep frying. Deep frying of chips is usually a two-stage process. First, the potato is gently cooked to dissolve starch in the outer layers and allow it to migrate to the surface of the chip whilst the inner part cooks. In the second stage, the chips are introduced to a much hotter bath of oil, which flash cooks the entire outer surface so as to produce a crisp, golden-brown outer layer.
As the Patent discusses, deep frying has a number of disadvantages. In addition, the high oil content which results from the cooking process is considered to be unhealthy. Deep frying is persisted with despite these disadvantages because the food produced, particularly in the case of chips, tastes good.
An alternative to traditional deep-fried chips is oven chips, that is to say, chips impregnated with oil which can be cooked (usually from frozen) in a domestic oven. These eliminate many of the disadvantages of deep frying, but are generally considered not to taste as good. Furthermore, they still contain a level of oil which is regarded as unhealthy.
The Patent takes a different approach. It discloses what it claims to be a novel method of frying food, and in particular chips, which aims to...
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