Technetix BV v Teleste Ltd
| Jurisdiction | England & Wales |
| Judge | Hacon |
| Judgment Date | 18 November 2019 |
| Neutral Citation | [2019] EWHC 3106 (Pat) |
| Docket Number | Case No: HP-2016-000070 |
| Court | Chancery Division (Patents Court) |
| Date | 18 November 2019 |
[2019] EWHC 3106 (Pat)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
INTELLECTUAL PROPERTY LIST (Ch D)
PATENTS COURT
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
HIS HONOUR JUDGE Hacon
(Sitting as a Deputy High Court Judge)
Case No: HP-2016-000070
Hugo Cuddigan QC and Adam Gamsa (instructed by Haseltine Lake Kempner LLP) for the Claimants
James Mellor QC and Thomas Jones (instructed by EIP Legal) for the Defendant
Hearing dates: 8–10 and 14 May 2019
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 Hacon
Introduction
The first and second claimants (collectively ‘Technetix’) are respectively the proprietor and exclusive licensee of EP (UK) No. 1 259 074 B8 (‘the Patent’). The invention claimed is entitled ‘Communication system comprising means for preventing intermodulation products’. The communication system is a cable network used to supply television and broadband services. Intermodulation products is the name given to a form of signal distortion.
The Patent teaches the use of a filter to block low frequency signals and thereby at least partially to prevent the generation of intermodulation products.
Technetix and the defendant (‘Teleste’) are competing manufacturers of electronic components. Both supply products to Virgin Media, the principal provider of cable TV in the UK. Technetix allege that Teleste's supply of products to Virgin Media constitutes an indirect infringement of the Patent pursuant to s.60(2) of the Patents Act 1977.
Teleste counterclaims for revocation of the Patent, alleging lack of novelty and inventive step, and that matter disclosed in the specification extends beyond that disclosed in the application for the Patent as filed.
Technetix has applied unconditionally to amend the Patent and also applies, if necessary, to make a conditional amendment to the Patent. The respective sets of claims were referred to as ‘the Unconditional Claims’ and ‘the Conditional Claims’.
Hugo Cuddigan QC and Adam Gamsa appeared for Technetix, James Mellor QC and Thomas Jones for Teleste.
The witnesses
Technetix' expert was Dr Rob Fronen. He is an electronics engineer who since 1990 has worked for several companies in research and development, specialising in integrated circuits (IC) and their applications. He now leads an IC design centre and co-owns a company which provides solar energy installations. Between 2012 and 2014 Dr Fronen was Executive Vice-President of Technetix.
I found Dr Fronen to be generally a good witness who was trying to help the court. He had no practical experience of the cable TV industry, so his experience did not match that of the skilled person. Mr Mellor submitted that Dr Fronen's evidence was coloured by his time at Technetix and that his answers concerning the Patent were the product of his knowledge of Technetix' products, not what the Patent said. As to his lack of practical experience, I do not believe that this made Dr Fronen's evidence any less helpful. However, I sometimes took the view that Dr Fronen's loyalty to his former employer may have coloured his judgment as to the perception of the person skilled in the art.
Jean-Charles Point was Teleste's expert. Mr Point had more directly relevant experience than Dr Fronen having worked in the radio frequency (RF) industry since leaving university and this included development work in the cable TV sector. Since 2002 Mr Point has worked for his own company which develops products that include those used in the cable TV industry.
Mr Point, like Dr Fronen, was undoubtedly trying to help the court with the technology in issue. Mr Point had an impressive knowledge of his subject and was a good witness.
English is not the first language of either expert. Neither relied on an interpreter and I congratulate both on their patience and hard work in giving their evidence.
The Patent
The application for the Patent was filed on 3 May 2002. There is an undisputed priority date of 11 May 2001.
The specification explains that cable networks are used to transmit several signals at the same time in order to maximise exploitation. Signals travel not only from the provider to customers – the downstream signal – but increasingly also in the reverse direction – the upstream signal – to enable interactive services offered to customers. The signal-to-noise ratio can be low.
The Patent teaches the use of a high-pass filter to improve the signal-to-noise ratio. It attenuates the transmission of frequencies below a cut-off frequency, the value of which will depend on the filter. The filter reflects back the energy of voltage peaks of signals below the cut-off frequency. Thereby, at least partially, it prevents the generation of intermodulation products.
The effectiveness of such filters is said by the specification to depend on what it calls two insights. The first (stated at [0007]) is that low signal-to-noise ratio is caused in part by components in the network in which intermodulation products are created. The second (explained at [0008]) is that the greatest sources of intermodulation products are components comprising ferrite transformers and/or connectors. These components have a non-linear transfer function caused by saturation of the ferrite component.
The transfer function of a component is a measure of its output against input. The graphically represented relationship between output and input may be linear or non-linear.
Saturation of a ferrite or other magnetic material occurs when an increase in a magnetising force applied to it no longer increases its magnetic induction, i.e. the electromotive force (the voltage) across the material no longer increases.
The specification continues: a voltage peak applied to the ferrite component is capable of causing saturation. A filter placed at the input of the signal processing means will beneficially reflect the energy of voltage peaks.
At [0009] the specification states that such voltage peaks in cable transmission networks may give rise to major problems. The peaks may be caused by lightning or by equipment connected to the network. At [0010] the specification discusses known means to protect against voltage peaks (gas discharge tubes and varistors) and their disadvantages.
The improved means used in the invention is then explained:
“[0011] The prevention means as used in the use of the communication system according to the invention do not make use of gas discharge tubes or varistors, but they use a filter for preventing voltage peaks from entering into the components by reflecting the energy. Since there is no question of a short-circuit and of the accompanying very high short-circuit currents (the energy of the voltage peaks is reflected and there is no current flow) in this arrangement, there is no question of a (high) magnetic field being generated, either. As a result, the aforesaid voltage peaks having a high voltage level and a low energy level will not be generated.”
The specification describes a preferred embodiment:
“[0013] One embodiment of the communication system used according to the invention is characterized in that the high-pass filter comprises an LC-filter, including at least one coil and at least one capacitor.”
The L of an LC filter denotes an inductor, the C a capacitor. An inductor, or coil, is typically a wire wound around a solid central core. When current passes through the wire this generates a magnetic flux proportional to the current. The effect of the magnetic flux is to resist changes in current, so that a steady state current will flow easily through an inductor whereas a varying current will not. A capacitor is a device that stores electrical energy in an electric field. It resists steady state current but not varying current.
Two embodiments of the invention are described in paragraphs [0022]–[0024] and illustrated in Figures 2 and 3. The coils in those embodiments have an inductance of 3.3 μH (microhenrys); the capacitors have a capacitance of 1nF (nanofarad).
Paragraphs [0025]–[0029] describe four sets of experiments using the filter shown in Figure 2 of the Patent.
The claims
The claims as granted were centrally amended by the EPO on 31 October 2018. Although Technetix did not formally admit that the October 2018 claims are invalid, those claims had been abandoned by the time of the trial. There was occasional reference to them and I will call them ‘the Centrally Amended Claims’.
Claim 1 of the Unconditional Claims is:
(1) Use of a communication system, the communication system comprising a cable transmission network with several terminal connecting points provided with high-frequency transmission and/or receiving means,
(2) in which the cable transmission network furthermore comprises signal processing means for processing high-frequency signals that can be transported via the cable transmission network,
(3) wherein the signal processing means comprise prevention means for at least partially preventing the generation of intermodulation products in the signal processing means,
(4) wherein said prevention means are provided with a pre-connected filter comprising a high-pass filter for stopping voltage peaks through reflection of the energy contained in the energy peaks,
(5) characterized in that the prevention means is used for the purpose of at least partially preventing the generation of intermodulation products in the signal processing means,
(6) and wherein the high-pass filter comprises an LC-filter including at least one coil and...
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