Schütz (UK) Ltd v Werit (UK) Ltd
Whether replacing a part of a patented product amounts to making it depends on whether the part replaced is a significant part of the inventive concept, so replacing a worn bottle in a container was not infringement.
Facts
Schütz held a patent for intermediate bulk containers, consisting of a plastic bottle held in a metal cage, used for transporting liquids. The inventive concept was in the design of the cage. The bottles wore out more quickly than the cages. Werit's business involved buying used containers, replacing the bottles with new bottles made by Werit, and reselling the reconditioned containers. Schütz argued that this amounted to making the patented product, which was an infringement.
Legal principle
The Supreme Court held that Werit had not infringed. Lord Neuberger said that the question whether a person makes a patented product is a matter of fact and degree, and the court should consider whether the replacement part was a subsidiary part of the product, whether it was a part that was expected to be replaced during the product's life, and whether it embodied the inventive concept of the patent. The bottle was a relatively short lived part, which did not include any aspect of the inventive concept, which lay in the cage, so replacing it was repair, not making.
Related cases on patents: claim construction and infringement
- Actavis UK Ltd v Eli Lilly & Co [2017] UKSC 48
- Catnic Components Ltd v Hill & Smith Ltd [1982] RPC 183
- Gillette Safety Razor Co v Anglo-American Trading Co Ltd (1913) 30 RPC 465
- Grimme Maschinenfabrik GmbH & Co KG v Scott [2010] EWCA Civ 1110, [2011] FSR 7
- Improver Corp v Remington Consumer Products Ltd [1990] FSR 181
- Kirin-Amgen Inc v Hoechst Marion Roussel Ltd [2004] UKHL 46, [2005] RPC 9
- Monsanto Technology LLC v Cefetra BV Case C-428/08, [2010] ECR I-6765
- Smith Kline & French Laboratories Ltd v Evans Medical Ltd [1989] FSR 513
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