Saab Seaeye Ltd v Atlas Elektronik GmbH and Another Adrian Dann and Others (Third Parties)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mann |
| Judgment Date | 04 November 2015 |
| Neutral Citation | [2015] EWHC 3163 (Pat) |
| Docket Number | Case No: HP-2014-000013 |
| Court | Chancery Division (Patents Court) |
| Date | 04 November 2015 |
[2015] EWHC 3163 (Pat)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
PATENTS COURT
Royal Courts of Justice
Rolls Building, 7 Rolls Buildings
Fetter Lane
London EC4A 1NL
Mr Justice Mann
Case No: HP-2014-000013
and
Tom Moody-Stuart (instructed by Norton Rose Fulbright) for the Claimant
Iain Purvis QC and Tom Alkin (instructed by EMW Law LLP) for the Defendant
Hearing dates: 14 th, 15, 16 th & 20 th July 2015
Introduction
This is a patent action about underwater mine clearance operations. The claimant (Saab) is the manufacturer of, inter alia, defence equipment. The defendants are the owners of two patents relating to mine clearance devices. The claimant seeks revocation of the patents on the grounds of want of novelty, lack of inventive step and (in relation to one of them) insufficiency. The defendants counterclaim for infringement. There are third parties to the action, but two of them have settled and the third (Mr Dann) has undertaken to be bound by the result of the claim and did not participate at the trial. There are non-patent claims in these proceedings, but they have been stayed for the time being or, as against Saab, have been discontinued. At the beginning of the trial there was an application by the defendants to amend their counterclaim in relation to "essential means" infringement. Saab did not oppose the amendment, and I formally allow it. The trial comes on with a degree of expedition ordered by this court because of Saab's commercial need to answer the questions which this action raises.
The priority dates of the patents were about a month apart (August and September 2010), and the experts agreed there was no material difference between those dates for the purposes of any of the issues in this action. I can therefore proceed on the footing that they shared the same priority date for practical purposes.
Most of the background to the patents was common ground and it is convenient to set it out here. Underwater mines are explosive devices intended to explode in the proximity of ships so as to sink or damage those ships. They are of various types. Some are physically attached to ships. They can be ignored for the purposes of this action. Some are tethered or moored — these are of the kind commonly depicted in cartoons as floating below the service and looking like roundish objects with spikes on them, though they do not, in the real world, all look like that. Others are deployed so as to rest on the sea bed. They can all be activated in various ways — by contact, by sound, and by detecting magnetic variations caused as a steel ship passes nearby.
During or at the end of conflicts it becomes necessary to clear mines that have been laid. The process of doing so (mine counter-measures, or MCM) falls into two categories — mine-sweeping and mine-hunting. The former activity involves indiscriminate activity such as towing cutting devices under the surface across a wide area, to release such moored mines as may be there so that they float to the surface where they can be destroyed by gunfire. Dragging chains along the sea bed is one indiscriminate way of dealing with bottom-dwelling mines. Acoustically or magnetically triggered mines can be sought to be exploded by mimicking ("spoofing") the acoustic or magnetic signature of a ship to which the mine is tuned to respond ("influence mine sweeping"). This involves using large scale equipment to generate a spoof signal over a wide area in the hope that relevant mines are nearby, listening and sensitive to the signal. The patents are not concerned with any of this sort of indiscriminate activity.
Mine hunting is a more targeted activity and is what the patents in this case are concerned with. The purpose of this activity is to identify specific mines, and then to attack those mines individually. If an individual moored mine is identified its specific cable could be cut so that it floats up to the surface where it can, as above, be destroyed by gunfire. However, the preferred method is to destroy the mine without releasing it to float around in an uncontrolled fashion, and in any event seabed mines have to be destroyed where they are.
One method of destroying them is to use a fairly large amount of explosive deposited nearby, and to explode it, in the hope (or expectation) that that explosion will also trigger the mine. This procedure has drawbacks. It requires the use of a substantial amount of explosives and a degree of uncertainty as to whether it will be enough to do the job. There are obvious dangers in ships moving round the sea containing large amounts of explosives. A more focused activity requires divers to swim up to the mine and physically disable it. The dangers of this are obvious.
A yet more focused activity is to explode a smaller amount of explosive in a shaped charge close to or even fixed to the mine itself. Such devices can be placed closed to the mine, or even attached to it by a diver. Alternatively, they could be manoeuvred close to the device by using a remotely operated vehicle ("ROV"). An ROV is what its name suggests — a vehicle capable of manoeuvring under water and carrying out various tasks there — transportation, carriage of objects, and the manipulation of objects. Many have a form of manipulator arm on them. They are controlled by an operator at some distance via a wire carrying an electronic signal (generally speaking — it is possible to do it via an acoustic signal, but that does not have as much bandwidth for the signal). The ROV will generally carry lights and cameras so that the operator can see what he or she is doing on a remote screen. By the priority date there were expendable ROVs, to which explosives were fitted in the form of a shaped charge. A shaped charge is a way of focusing the explosive effect so that less explosive is necessary than would otherwise be the case. Those ROVs were manoeuvred close to the mine, and detonated via an electrical signal (over an umbilical connecting cord) or an acoustic signal when close enough, with the shaped charge doing its work of destroying the mine. The ROV is sacrificed. That is obviously expensive.
The explosive device has preferably to be physically fixed to the mine. The ways of doing that are limited. One particularly striking, and counter-intuitive, way of achieving it featured in one of the patents and in the prior art. It was apparently found that a nail gun could be used without setting off the mine. One of the patents involves this technique. In this action it is disputed as to whether it was common general knowledge at the priority date.
In this action Saab was represented by Mr Thomas Moody-Stuart; the defendants were represented by Mr Iain Purvis QC and Mr Tom Alkin.
The 576 patent
UK Patent no 2482576B was published on 8th February 2012, and has a priority date of 6th August 2010. It is entitled "A neutrally buoyant underwater weapon clearance appliance". The claims said to be independently valid are set out in Annex 1 to this judgment. The defendant has applied unconditionally to amend this patent and does not seek to defend the unamended patent. I can therefore consider the proposed amended patent only. Having considered the observations of the Patent Office, I consider that it would be right to allow the amendment, provided that the amended claims would be valid. I therefore have to consider those would-be amended claims only.
The Annex sets out the alleged independently valid claims as sought to be amended. Claims 1 and 9 are said to be infringed; the others are not.
In order to assist navigation round the claims, the significant matters in relation to each claim are as follows. Generally speaking, the invention involves carrying an explosive to a mine on an ROV. Claim 1 describes a device for clearing mines, which has a "detachable connection" to an ROV, has neutral buoyancy and a nail-gun for attaching the clearance appliance (explosive) to the body of a mine. Claim 2 describes such a device but adds that it has no "alignment moment", that is to say that it does not pitch, turn or roll in the water (it is in no way self-righting). Claim 5 substitutes a spoofing device to the triggering mechanism to set off the mine. Instead of a charge which blows itself and the mine up, the device contains a spoofing device which mimics the signal to which the mine is sensitive, thus triggering it. Claim 9 adds simultaneity of the firing of the nail gun to attach the device with the process of detachment of the device from the delivery vehicle — as the nail fires, the clearance device is detached from the means of transportation (as opposed to the nail gun firing first, and then the detachment happening afterwards). Claim 10 is a claim to a particular method of achieving that simultaneous disconnection.
Turning to the body of the patent, the description describes a technically simple method of disposal by sending divers to fit an explosive charge manually; but that is dangerous to the diver and limited to maximum diving depths. A further method is to send an unmanned underwater vehicle (ROV), using a manipulator arm fitted to the vehicle, to place a large charge "in the area" of the mine and exploding it; but that requires a large amount of explosive which makes trimming the ROV difficult, requires large storage facilities on the mine-hunting ship and gives rise to a dangerous presence of large quantities of explosive on that ship. A yet further method involves mine-destruction "drones" with shaped charges. These underwater unmanned vehicles are moved "directly adjacent" to the...
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