LG Philips LCD Company Ltd v 1) Tatung (UK) Ltd 2) Viewsonic Europe Ltd 3) Number One Services Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Neuberger,Lord Justice Leveson |
| Judgment Date | 20 December 2006 |
| Neutral Citation | [2006] EWCA Civ 1774 |
| Docket Number | Case No: A3/2006/0122 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 December 2006 |
[2006] EWCA Civ 1774
Lord Chief Justice of England & Wales
Lord Justice Neuberger and
Lord Justice Leveson
Case No: A3/2006/0122
PAT.NO 04022
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PATENTS COURT
His Honour Judge Fysh QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Peter Prescott QC and Mr Benedict Bird (instructed by Messrs Linklaters) for the Appellant
Mr Richard Meade (instructed by Messrs Wragge & Co) for the Respondents
Introduction
This is an appeal against the decision of His Honour Judge Fysh QC, sitting in the Patents County Court, in an action involving a claim for patent infringement and a counterclaim for revocation of the patent in question. The patent concerned is UK Patent No. 2346464 ("the Patent") , entitled "Portable computer", and it is registered in the name of the appellant, LG Philips LCD Ltd. The Patent concerns a way of mounting flat panel display devices into housings, the combination being subsequently incorporated into portable computers and display monitors.
The appellant brought proceedings for infringement of the Patent against the three respondents, Tatung (UK) Ltd, ViewSonic Europe Ltd, and Number 1 Services Ltd ("the respondents") . The respondents denied infringement and counter-claimed for revocation of the Patent on the grounds of anticipation, obviousness and insufficiency. In order to meet part of the respondents' case for revocation, the appellant applied to amend the Patent.
The hearing of the action took place over six days in September 2005, and the Judge gave a very full judgment on 28 November 2005. Having explained the technical background and the specification of the Patent, the Judge then discussed, briefly and uncontroversially, the relevant common general knowledge, the reliability of the expert witnesses, and the proper approach to the interpretation of the Patent.
The Judge then explained the amendments which the appellant wished to make to the Patent. He then discussed the issues thereby raised, and decided that the amendments should not be allowed, on the ground that they constituted added matter, and, in the case of one of the amendments, on the further ground that it suffered from lack of clarity.
The Judge recorded that it was conceded by the appellant "that the action would fail if the amendments were not allowed". This concession meant that the Patent was admittedly invalid as the application to amend had failed, and the infringement action also necessarily failed. However, the Judge went on to consider, albeit relatively briefly, the outstanding issues, on the assumption that the amendments had been allowed. On that basis, he held that (a) none of the respondents had infringed the Patent, and (b) although he rejected the respondents' case on lack of novelty, he accepted it on the issue of obviousness. In those circumstances, he dismissed the infringement claim and granted the revocation sought on the counterclaim.
The appellant appeals against all the conclusions reached by the Judge, save, of course, his rejection of the respondents' case of lack of novelty. The respondents have cross-appealed. All references to sections in this judgment are to sections of the Patents Act 1977.
Technical matters and the general teaching of the Patent
The Patent is concerned with mounting of a flat-panel display device within a two-part housing. The resulting unit may then be incorporated into products such as a laptop computer or free-standing computer monitor. Although there is more than one sort of display device, the teaching of the Patent is directed principally to Liquid Crystal Displays ("LCD"s) in laptop (or notebook) computers.
What one might call the monitor (or the hinged lid) of a laptop computer has a cover consisting of two parts, which form a display case. The first part is a (normally rectangular) front through which the display may be viewed: it is like a picture frame for the "picture" of the display. If one is viewing the display, the four sides of this frame have a normally flat and fairly narrow surface (or bezel) in roughly the same plane as, but a little proud of, the display surface. There is a corresponding rear part, which is solid. The front and rear are sometimes called housings or frames. The front housing is usually attached directly to the rear housing.
The LCD module, which forms the display, is mounted between the front and rear housings. An LCD module is a complex product with many layers. It looks like a wide flat box with a lip around the front to prevent the layers falling out. The functions of the various layers of the module are largely irrelevant for present purposes. LCD modules are made by various manufacturers, and the appropriate module for a particular application is purchased from such manufacturers. Indeed, from the point of view of the addressee of the Patent, the modules were just "slabs", and indeed were so called by employees of the company in which Mr Talesfore, the appellant's expert witness, worked.
There is one aspect of LCD modules which is important for present purposes, namely the fact that they contain at least one glass layer. This layer does not extend to the edge of the metal enclosure: there is a gap between its edge and the side wall of the enclosure, and that gap is of varying size. Further, the portion of the display, on which the image is actually shown, is not co-extensive with the whole of the glass layer. It is within that glass layer that the display area, that is what the viewer sees, is created. The glass can thus be treated as consisting of two areas, namely a (normally much) larger, central, area (the active area) wherein the display is created, and a lesser, peripheral, area surrounding it which is inactive and is normally located under the bezel of the front housing. However, there is no requirement that the inactive area is precisely co-extensive with the area of the glass under the bezel.
Mr Meade, who appears for the respondents, as he did below, summarised, in my view accurately, the basic teaching of the Patent as it appears from the specification, in the following terms:
"(a) It asserts that the prior art common general knowledge method of mounting LCD modules was by the use of flanges attached to the modules at their edges.
(b) It asserts that the use of such flanges made an assembly of that kind unnecessarily wide (wasted side space) . Wasted side space could be undesirable because e.g. in a notebook computer of fixed width it meant that less of the available space could be devoted to the display.
(c) It asserts that the problem of wasted side space could be avoided by omitting the flanges and moving fixing points to the rear …."
In paragraph 15 of his judgment, the Judge put it this way, after going through and quoting short passages from the specification of the Patent:
"The object of the invention is therefore to maximise the display area of the display case. And how is it proposed that this should be done? Simply by re-positioning the mounting flanges at the side of the module to the rear of the module. [Counsel then appearing for the appellant] accepted that it was the idea of making this change which was at the heart of the invention."
It is right to mention at this stage that Mr Peter Prescott QC who appeared for the appellant with Mr Benedict Bird on this appeal, contended that in that passage the Judge erred. They said that the teaching of the Patent did not involve re-positioning the side flanges to the rear of the module, but replacing the side flanges with fastening parts which are located behind the glass.
A drawing produced during the course of the hearing below and which appears to me to be helpful for the purposes of this appeal is this:
The solid right-angled lines denote the outside and inside of the front housing (i.e. the frame for the viewing display as explained above) . The dashed lines denote the extent of the glass area which is shown hatched. The position marked "A" shows the prior art flange. The relevance of the other letters marked on the drawing will be apparent from what follows later in this judgment.
At this stage, I turn to claim 34 of the Patent upon which, as the Judge put it, "interest has almost entirely focussed". If the appellant cannot succeed in making the amendments to claim 34 it seeks, then, as already foreshadowed, it accepts that its infringement claims must fail and that the Patent must be revoked.
16. Claim 34 (as broken down by the Judge and by both counsel at trial) reads as follows (with the proposed deletions being bracketed and the proposed additions being in italics) :
"A flat panel display device [capable of being] mounted to a housing comprising a front housing part and a rear housing part,the flat panel display device not being fixed to the front housing, part the flat panel display device comprising:
A back light unit including a first frame having a fastening part at a rear surface of the first frame;
A flat panel display adjacent to the backlight unit; and
A second frame
Wherein the flat panel display is between the first frame and the second frame, the first frame of the backlight unit [capable of being] is fixed to the housing through the fastening part of the rear surface of the first frame; and the fastening part is behind the flat panel display."
The Judge...
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