“The superstructure 7 is comprised of a plurality of flat latticework beams 5 whose longitudinal axes coincide essentially with the longitudinal axis of the vessel and the planes of which are vertical. In particular, a latticework beam 5 is provided along each long side of the superstructure 7. In the illustrated case, the superstructure includes four beams 5 each being located above an associated bulkhead 44.”
“(1) A multihull vessel of the catamaran type comprising two or more hulls (2) which extend in mutually parallel and horizontally spaced relationship and which are mutually joined by means of one or more decks (3) and further comprising an overlying space in a superstructure (7) supported by one or more wall structures (4) that extend from respective hulls (2) characterised in that walls in the superstructure are formed by latticework beams (5) whose longitudinal profiles (51, 52) extend horizontally and whose planes are oriented generally vertically and in that the latticework beams (5) are connected firmly to those walls which support the superstructure (7) from the underlying hull.”
“A vessel according to claim 1, characterised in that the longitudinal profiles (51, 52) of the latticework beams (5) are connected to the roof structure (58) and the floor structure (59) of the superstructure (7), said floor structure and said ceiling structure being constructed to contribute to the overall strength of the vessel and to strengthen the bending resistance of the longitudinal profiles of the latticework beam.”
“A vessel according to claim 1 or 2, characterised in that windows are provided in the free spaces defined by longitudinally extending profile elements and struts in the latticework beams that define the side walls of the superstructure. Claim 4: “A vessel according to claims 1 or 2, characterised in that a latticework beam (5) forms at least partially the body of a partition wall, wherein partition wall material is applied to the sides of the beam or in the free spaces defined in the beam by the longitudinally extending beam profile and struts, said wall material being essentially free of appreciable deformation forces.”
“(5) An act which, apart from this subsection, would constitute an infringement of a patent for an invention shall not do so if- … (d) it consists of the use, exclusively for the needs of a relevant ship, of a product or process in the body of such a ship or in its machinery, tackle, apparatus or other accessories, in a case where the ship has temporarily or accidentally entered the internal or territorial waters of the United Kingdom; (e) it consists of the use of a product or process in the body or operation of a relevant aircraft, hovercraft or vehicle which has temporarily or accidentally entered or is crossing the United Kingdom (including the air space above it and its territorial waters) or the use of accessories for such a relevant aircraft, hovercraft or vehicle; (f) it consists of the use of an exempted aircraft which has lawfully entered or is lawfully crossing the United Kingdom as aforesaid or of the importation into the United Kingdom, or the use or storage there, of any part or accessory for such an aircraft. (7) In this section- “relevant ship” and “relevant aircraft, hovercraft or vehicle” mean respectively a ship and an aircraft, hovercraft or vehicle registered in, or belonging to, any country, other than the United Kingdom, which is a party to the Convention for the Protection of Industrial Property signed at Paris on20th March 1883 ; and “exempted aircraft” means an aircraft to whichsection 53 of the Civil Aviation Act 1949 (aircraft exempted from seizure in respect of patent claims) applies.”
“In any country of the Union the following shall not be considered as infringements of the rights of a patentee: 1. The use on board vessels of other countries of the Union of devices forming the subject of his patent in the body of the vessel, in the machinery, tackle, gear and other accessories, when such vessels temporarily or accidentally enter the waters of the said country, provided that such devices are used there exclusively for the needs of the vessel. 2. The use of devices forming the subject of the patent in the construction or operation of aircraft or land vehicles of other countries of the Union, or of accessories of such aircraft or land vehicles, when those aircraft or land vehicles temporarily or accidentally enter the said country.”
“73. Consistent with the view of the Landgerichts, it seems to me that s 60(5)(d) and (e) and the Art 5ter of the Paris Convention are concerned to ensure that trade and the carriage of persons between countries is not hindered by patent rights applying to the means of transport. Whether one considers a ship, aeroplane or lorry, each is made up of large numbers of parts and accessories. Any one or more of them could be the subject of patent protection. The owner of a patent to the vehicle itself [or] on any one of its numerous parts or accessories could immobilise the vehicle by infringement proceedings and thereby interfere with international trade or the international movement of people, at least unless and until an alternative means of transport could be put in place. Whether the means of transport takes the form of lorries, planes or ships, the underlying principle is that the normal operation of the vehicle is to be taken out of the scope of patent infringement. If the vehicle is used for an infringing purpose, then patent rights can be invoked, but not if the patent covers the fabric of the vehicle or a process which enables the vehicle to function. … 75. If that is correct, then s 60(5)(d) comes into play to protect the vehicle insofar as it is engaged in inter-state passage. The word “temporarily” should be construed in that context. Its primary purpose is to distinguish between vehicles which are engaged essentially in internal operations and those which travel between countries. For that reason, I accept Mr Miller’s argument, which is consistent with the decision of the Landgerichts, that questions of frequency, persistency and regularity have little to do with determining whether a vessel is temporarily within the territorial waters of the United Kingdom. Temporarily means ‘for a limited period of time’. I do not accept the attractive bridge analogy referred to above. A bridge is anchored at each end to land. It is a permanent solution to a communications or transport need. … 77. It is not necessary to decide what would be the position if the vehicle enters a country’s territory temporarily but, once there, the operator changes his mind although I think it unlikely that a court would construe the immunity from suit as extending to the vehicle in those circumstances. Furthermore it is not necessary to consider whether the word “enter” also connotes moving into “foreign” territory. It is possible that “enter” should be contrasted with “return”
“80. This leads to Mr Arnold’s second point. He draws attention to the fact that the statutory exclusion only applies to a product (or process) “in the body” of a ship. This reads on to the exclusion of “machinery, tackle, apparatus or other accessories” on or in the ship. Taken together, these words suggest that the exclusion extends only to parts of the ship, not to the ship as a whole. Since the claims here are to a multi-hull vessel, it is the Jonathan Swift as a whole which is the infringing article. It falls outside the scope of the statutory exclusion. A similar construction would apply to s. 60(5)(e). 81. I do not accept this argument for four reasons. First, it is difficult to see what the logic would be in having an exclusion effective against parts but not the whole of a vessel. The point may best be illustrated by the other half of these provisions, namely the exclusion from infringement when a vessel or vehicle accidentally enters our territorial waters. If it is thought that such accidental incursions should be outwith the scope of a patent, and that such a principle should apply to parts of ships, machinery, tackle, apparatus and other accessories, it would be logical to apply the same principle to the ship as well. Mr Arnold offers no justification, other than wording, for the difference for which he contends. Second, if the purpose of this legislation is to prevent patents interfering with the means used to carry international trade, the construction suggested by Mr Arnold would undermine it. A purposive construction supports Mr Miller’s argument that these provisions apply as much to vessels and vehicles as to the parts used on them. Third, the terms of the Paris Convention are consistent with Mr Miller’s argument. The Convention, like our Act, deals with vessels, aircraft and land vehicles, but puts them into separate sub-articles. However this appears to be a matter of linguistic convenience rather than an indication of a difference in substance between the way these different modes of transport are to be treated. It will be seen that the wording of Article 5ter (1) is essentially identical to our s 60(5)(d), save that in our provision an “or” has been inserted. However Article 5ter (2) is expressed somewhat differently. In particular it excludes the “use of devices forming the subject of the patent in the construction … of aircraft”
“Mr. Slynn, for the respondent, submits that permanent is not the true or only antithesis to temporary in this context. He submits that when speaking of a vehicle being temporarily in Great Britain, one is not concerned only with the period of time for which it is expected to be there. He says that in considering whether its visit, if I may so describe it, is a temporary one, one must also consider whether such visits are paid ordinarily or regularly by the same vehicle. It is the respondent's case that in order that the trailer may be described as being temporarily in Great Britain, one has to have regard to whether its presence was ordinary or unusual as well, the conception being that a visit constantly repeated and forming part of the regular life, as one might describe it, of the vehicle is not to be regarded as temporary merely because any individual visit is of relatively short duration. For my part, I feel strongly that Mr. Slynn's approach is the right one. I cannot believe that in the context of these regulations the Minister intended that a vehicle should be excused from the very necessary safety precautions with which we are dealing unless it was here permanently for all time. I also think that there is implicit in the phrase 'temporarily in Great Britain' an element other than simply a time element, and I find that the language and the testing of this conception is most aptly expressed in a Scottish case on a wholly different subject but dealing with the same problem which we face today.This is the case of Inland Revenue v. Cadwalader, (1904) 7 F. (Sess. Cas.) 146. The facts there were that an American citizen, with his ordinary residence and indeed practising the law in New York, took a three-year lease of a furnished shooting lodge in Scotland. He resided at the shooting lodge for a period of two months in each year during the shooting season, but the lodge was available to him for the rest of the year if he had wished to come. He kept his home in New York open throughout the year and returned there when he was not shooting in Scotland. The question having arisen as to whether he was in Scotland for a temporary purpose only on those facts, Lord M'Laren says this: “I do not think that Mr. Cadwalader is in a position to affirm, when he comes year after year during the currency of his lease to spend the shooting season in Scotland, that he is here for a temporary purpose only. I do not mean that you might not frame a definition which would bring this within the scope of temporary purposes, but, taking the ordinary meaning of the word, I should say that temporary purposes means casual purposes as distinguished from the case of a person who is here in the pursuance of his regular habits of life.”
“The use of any invention in any … aircraft … of any country which affords similar privileges to … aircraft … of the United States, entering the United States temporarily or accidentally, shall not constitute infringement of any patent, if the invention is used exclusively for the needs of the … aircraft … and is not sold in or used for the manufacture of anything to be sold in or exported from the United States.”
“Counsel have cited a passage from the record of the proceedings at the Hague Conference indicating that in a committee meeting in connection with the 1925 consideration of Article 5ter, subparagraph 2, the question of the significance of “temporarily” was brought up for discussion; the committee indicated that the words “temporarily” and “accidentally” were chosen to cover entries into port for more or less brief periods whether periodically or exceptionally and whether unintentionally or not.”
“[6] The enactment of Section 272 and the adoption of Article 5ter would be incomprehensible if they were intended to cover only trivia. Their adoption implies that they were understood to create a useful immunity from infringement liability that was of enough importance to occupy the attention of the Congress and the negotiators of two treaties. Their language was chosen to deal with an internationally significant matter arising in a world in which scheduled freight and passenger services by established international carriers by air and sea were likely to require such an immunity to cover countless articles aboard aircraft or vessels that could turn out to be covered by patents in the United States that were without counterpart abroad. It is difficult to see any other purpose in Section 272 and Article 5ter than to meet the needs and realities of international trade and navigation. “Temporarily”, then, could not sensibly mean any less than entering for the purpose of completing a voyage, turning about, and continuing or commencing a new voyage. The distinction would be between a Caravelle, manufactured in France and powered with such an engine, delivered here for use by an airline in this country for domestic traffic, even though manufactured and sold in France, and a foreign aircraft arriving here on an international flight only to unload, turn about, reload and depart.”
“… in particular to know whether this expression includes also regular entries – especially periodically – in which case it would prefer the use of the word “enter” rather than “penetrate”.”
“69. It appears, and Mr Arnold does not suggest otherwise, that the delegation wanted to ensure that regular and periodical entries into a country were covered by the Convention. Following this, the word “penetrate” was replaced by “enter”, as in the current version of the Convention.”
“72. Further it held that the defendant’s activities fell within the statutory defence as follows: “Any regularity and enduring repetition of the defendant’s roll trailers staying [in] the domestic territory in no way alters the fact that the roll trailers only temporarily enter the country, since after this stay they always leave domestic territory, as intended from the start, and this happened after a sufficiently short time. … Certainly, a stay on domestic territory can only be regarded as no longer temporary under these provisions if it lasts at least several months at one time. But this is evidently not the case in this instance – as follows from the function of roll trailers and from the speed of today’s sea transport. To this extent it is immaterial that there may constantly be roll trailers of the defendant located in domestic territory. Since the object of the patent infringement can only be the individual roll trailers, the only issue is whether the individual roll trailers are only temporarily in the domestic territory.””
“There is freedom of use only if vessels enter the waters of a foreign country temporarily or accidentally. Temporary entry includes periodical entries. Accidental entry may be caused inadvertently or by shipwreck. In the latter case, the patent will not be infringed even if the presence of the vessel in the foreign water is not temporary.”
“27. There appeared to be no real differences between the parties as to the state of the common general knowledge at the priority date. Naval architecture is conservative and that conservatism has been encouraged and reinforced by the desirability of following what are known as classification rules – that is to say accepted architectural criteria which are set by the Classification Societies and which play a big part in the ship design. These are conventional rules which make it easier for a ship to obtain classification as being seaworthy. However there were no such conventional rules designed expressly for high speed catamarans. The need to deal with local and global forces was well established. Furthermore the use of bracing using diagonal members to make a structure stiff was well known. Mr Marchant gave extensive evidence on this subject. He pointed out that such structures were extremely well known and had been for a very long time. He referred to the well known Warren girder which is to be found on the sides of many railway bridges. Indeed, one only needs to look at any building site to see cross-braced structures used in profusion in cranes. They make the cranes light but rigid. Mr Marchant said that this was just a standard engineering device that could be employed in any structure to increase its resistance to forces. He explained that by “standard” he meant that it is one which has been familiar to engineers for many years. He said that it was well known to use such structures in the aircraft industry where it is necessary to design light fast vehicles. He is in a particularly good position to talk about the latter industry – probably unlike most naval architects – since he had trained in it.”