Total Containbment Engineering Ltd V. Twma Group Limited
| Jurisdiction | Scotland |
| Judge | Lord Malcolm |
| Neutral Citation | [2013] CSOH 135 |
| Court | Court of Session |
| Published date | 13 August 2013 |
| Year | 2012 |
| Date | 13 August 2013 |
| Docket Number | A263/12 |
| OUTER HOUSE, COURT OF SESSION | |
| [2013] CSOH 135 | |
| A263/12 | OPINION OF LORD MALCOLM in the cause TOTAL CONTAINMENT ENGINEERING LTD Pursuer; against TOTAL WASTE MANAGEMENT ALLIANCE LTD Defender: ________________ |
Pursuer: Clark QC; Morton Fraser
Defender: Lake QC, O'Brien; Maclay Murray & Spens LLP
13 August 2013
[1] The pursuer alleges that the defender has infringed claims 1 and 15 of United Kingdom (EP) Patent No. 1 144 869 B1, and seeks declarator of the same, plus various remedies flowing therefrom. The patent relates to an invention concerning an apparatus and methods for handling drilling waste generated in offshore drilling operations. It involves a process for slurrying waste materials and drill cuttings in a tank and transferring them to other containers. At a debate, on behalf of the defender, Mr Lake, QC submitted that the pursuer does not relevantly aver any basis upon which the court could find certain integers of the claims to be present in the defender's equipment and processes. He invited the court to dismiss the action.
[2] Claim 1 of the Patent is in the following terms (with the alleged missing integers underlined):
"Apparatus for handling drill cuttings in a tank and transferring them therefrom, the apparatus comprising; pump means having a chamber, and inlet opening into said chamber, a rotatable impeller disposed in the chamber and being driven by a motor to draw drill cuttings contained in the tank into the chamber, a discharge outlet on one side of said chamber, and manipulating means operatively associated with the pump means for moving at least the inlet of the pump means vertically, horizontally, and/or laterally within the tank; wherein the manipulating means includes swivel means for orienting the pump means within the tank."
Note of argument for the defender
[3] In its note of argument, the defender describes its process as involving drilling waste being stored in a holding tank and a pump being situated beneath that tank, with the drilling waste passing into the pump by gravity and then being pumped away. The pump has two cylinders opening into a hopper. Each cylinder contains a piston. On each stroke, one piston pulls back (drawing drill cuttings from the hopper into its cylinder), and the other piston pushes forward (pushing cuttings out of its cylinder). A "swing tube" moves back and forth between the two cylinders, so that when cuttings are pushed out of a cylinder, they pass into the swing tube and are channelled away.
[4] Under reference to the pursuer's averments in article 5 of condescendence, the defender's note comments that the "inlet" in terms of claim 1 is said to be "the lower end of the swing tube" - that is to say, the end which moves back and forth between the two cylinders. The submission for the defender is that the inlet of the swing tube cannot fall within the term "inlet" as it is used in claim 1, since the "inlet" of claim 1 is an "inlet opening into said chamber" - that is, the chamber of the pump. In other words, the reference is to an inlet through which the drill cuttings pass from the tank into the pump chamber. The note states that if the pursuer's definitions of "tank" and "chamber" are accepted, then the "inlet", as the term is used in claim 1, must be the point where the hopper connects to the storage tank above. That would be the point where drill cuttings enter the chamber. However, as is plain from the pursuer's averments, the hopper is static relative to the tank, thus there are no "manipulating means ... for moving at least the inlet of the pump means ... within the tank". Accordingly the submission is that, on the pursuer's averments, it is clear that claim 1 is not infringed.
[5] The defender's note continues that, in any event, the CST unit would still lack the integer of "swivel means for orienting the pump means within the tank." The "pump means", as defined by the pursuer, is fixed in position relative to the storage tank. The pursuer relies entirely upon the motion of the swing tube. However, on the pursuer's own averments, the swing tube is merely an internal component of the pump. At best for the pursuer only the swing tube can be "swivelled and oriented" - not the pump means.
[6] Claim 15 is for:
"A method for moving drill cuttings from a holding tank to a vehicle, the method comprising the steps of locating a pump means in the tank, swivelling the pump means in the tank, and pumping the drill cuttings from an inlet in the pump means to a tank disposed on the vehicle" (alleged missing integer underlined).
The defender notes that the pursuer makes averments regarding certain processes, all of which are said to involve the CST unit. In article 6 the pursuer avers that these processes infringe claim 15 on the basis that the use of the CST unit involves the swivelling of the pump means in the tank. It can be inferred that the pursuer relies upon the same factors as those referred to as "swivel means" for the purposes of claim 1. For the same reasons the defender submits that the averments of infringement of claim 15 are irrelevant.
Note of argument for the pursuer
[7] In the note of argument for the pursuer it is maintained that the inlet of the swing tube in the defender's CST unit is to be regarded as the "inlet" referred to in claim 1. Reference is made to the averment in article 5(b) of condescendence which states that the CST unit features
"a swing tube with an inlet opening into the swing tube from either of the piston cylinders, the swing tube and cylinders forming part of the chamber of the pump means ... The CST unit thus features an inlet opening into the chamber of the pump means, within the meaning of claim 1 ..."
The note states that the defender's argument is predicated upon the assumption that the inlet referred to in claim 1 must be the means by which drill cuttings first enter any part of the chamber. That is said to be a possible, but by no means a necessary reading of the claim. The claim can be interpreted on the basis that it simply requires the inlet to admit drill cuttings to some part of the chamber - in the case of the CST unit, the...
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