Tamglass Ltd. Oy v Luoyang North Glass Technology Company Ltd. & Anor [2006] EWHC 65 (Ch)

[2006] EWHC 65 (Ch)Case No HC04C02705
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
PATENTS COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 27/01/2006
Before
MR JUSTICE MANN
Between
TAMGLASS LIMITED OYClaimantLUOYANG NORTH GLASS TECHNOLOGY COMPANY LIMITEDDefendantsNOVAGLAZE LIMITEDDefendant
Mr. M. Tappin (instructed by Wragge & Company LLP) for Claimant.Mr Wang Chen (employee) represented the First Defendant. for The second defendant was not represented at the trial.Hearing Hearing dates: 15 th, 16 th, 19 th 20 th, 21 st December 2005
Judgment

Introduction

[1]This is a patent action in which the claimants allege infringement of a European patent (UK) No 0261611 for a glass bending and tempering process. Its priority date is 22nd September 1986 and the date of the publication of its grant was 18th July 1990. The first defendant company (“LNG”) is the manufacturer of a machine which is said to be an infringing machine. It is said to have infringed by importing the machine and selling it to the second defendant. The second defendant company (“Novaglaze”) is said to have infringed by keeping and using the infringing machine and the processes of the patent. It has pleaded to the claim but has played no part in this trial. It has indicated in correspondence that it is content to abide by the court’s decision in relation to infringement and validity, but would wish to be heard on remedies. LNG counterclaims for revocation on the grounds of want of novelty and obviousness.

The technology and the patent in suit

[2]Tempered glass is glass that has been strengthened by a process of heating and then quickly cooling. The differential in cooling as between the centre and the outside of the glass gives rise to a strengthening of the glass and prevents it shattering into shards A typical use is in car windows. The process of tempering has been well known for some time.[3]Various applications (again, for example, car windows) require tempered glass to be bent. This can be achieved while the glass is very hot. Various means exist for bending hot glass. A flat sheet can be put over an appropriately shaped mould and left to adopt the appropriate form by gravity. It can be pressed between complementary shapes when either being hung vertically from tongs (which has the drawback of, amongst other things, leaving tong marks) or horizontally. Another technology involves passing it between rollers which have been pre-configured to produce the shape into which the glass is required to be bent. These various processes have advantages and drawbacks.[4]The invention in the patent in suit seeks to incorporate the process of heating, bending and tempering into one almost continuous process, with the tempering and bending taking place at the same time, or almost at the same time, whilst the glass is in a horizontal position. One embodiment of the process is described in the patent, and I can summarise it as follows. The sheet of glass is heated in a furnace to a temperature suitable for tempering and bending, which involves heating it to a temperature of over 600oC. From the furnace it is carried over stretches of rollers through a tempering and bending section and on to final safe disposal. Switches control when the glass moves from one section to the next by turning sections of rollers on and off. This bending and tempering section itself consists of a set of rollers. These rollers are supported by a system of supports comprising pistons linked to levers. By moving the pistons an appropriate amount, the supporting levers are moved and can be made to assume a concave shape under the glass. The ends stay still and the centre subsides (though the same effect would be achieved by raising the ends and keeping the centre still). When they do this the glass adopts that curve. The axis of the curve is transverse to the direction of travel of the glass. When in that position the glass can be oscillated to and fro; that is to say the rollers can be driven one way and then the other so that the glass slides to and fro within the concave shape that the rollers have formed. In the glass making process it is important to keep the glass moving while it is still hot because if it stops moving on the rollers the quality of glass is impaired. While this is happening, air nozzles descend from above and blow hot air on to the glass to make sure that it does not cool too quickly. Tamglass’s expert said that that air would be typically at 250oC. Once the required period of time has elapsed and the correct shape has been assumed, cool air nozzles are deployed to assist the rapid cooling of the glass in accordance with the normal tempering process. The pistons and levers move so that the conveyor rollers resume their horizontal position and the now bent glass is conveyed away to the next section of the machinery, to be replaced by another piece of glass coming along behind.[5]That outlines the procedure. The claims are, of course, set out formally in the claims section of the patent. The relevant independent claims are set out in the schedule to this judgment. All except claim 7 are process claims; claim 7 relates to a particular embodiment. Conveying heated glass on rollers is not novel; nor is bending it; nor is bending it around an axis transverse to the direction of glass over a set of rollers. What is said to give this particular patent its essential novelty is curving it around an axis transverse to the travelling direction in a way which enables the curvature to take place almost simultaneously across the whole curve and at substantially the same rate and oscillating it in a reciprocating or oscillating motion by means of the rollers. It is said that prior art did not provide for oscillation, and did not provide a means for achieving the bending at substantially the same rate across the whole of the curve – the prior art showed a process in which the curving took place first at a leading edge and then sequentially across the rest of the curve – this will be elaborated on later.

Procedural Matters

[6]Before continuing with this judgment, I need to record certain unusual procedural or forensic features of this case. I have already indicated that the second defendant has not played any part in this trial (though it did file a Defence). The first defendant was originally represented by English solicitors and counsel. However, in the early part of this year (after formal statements of case had been exchanged) it dispensed with their services, and since then has conducted the litigation without their assistance. In October 2005 LNG sought permission to be represented by various individuals, including a non-English speaking Chinese lawyer. The application came before Lewison J, who (as I understand it) received written submissions from LNG. He gave LNG permission to be represented by two specified individuals who, he was told, spoke English. He refused permission for LNG to be represented by other individuals who did not speak English (and at least one of whom was not at the time an employee of the company). One of the two permitted individuals was an employee known as Wang Chen (“Mr Wang”). It was he who represented the company throughout the hearing before me. On the first day he indicated that he wished to represent the company through an interpreter. I would not have been prepared to have allowed that because it was contrary to the basis on which Lewison J made his order and because it would have been completely impractical for that to have happened. I allowed the trial to start so that I could assess whether Mr Wang’s English was sufficient to enable him to conduct the trial in a manner which was fair to all parties (including his own company), and I concluded that it was. The arrangement was far from perfect, but LNG had made its choice about representation and it did not seem to me that injustice or impracticability would arise as a result of it (though it cannot be pretended that the situation was an easy one).[7]One of the consequences was that the litigation was being conducted by a foreign national with, apparently, no clear feel for the proper conduct of English proceedings (though he was, of course, steered appropriately at all stages of the trial). It seems on the face of things that one result of this was the service of late witness statements by LNG. On 8th and 9th December 2005 (less than one week before the trial was due to start) LNG served three new witness statements. One was from an employee who was already giving expert evidence. Two were from other individuals. The main effect of this evidence was to seek to provide details of a machine which was said to have been newly discovered (at the beginning of November 2005) in China and which was said to anticipate the invention in the patent in suit. The possible existence of such a machine had apparently been known since 1995 and was indeed pleaded as prior art, but its whereabouts was said not to be known and it was said to be not traceable. It was said that it was only as the result of a chance encounter at the beginning of November 2005 that one of the witnesses (the expert, Mr Gao) found out where the machine might be. It was tracked down and purchased by LNG. It was said to have been a machine which was put into operation in about 1985 but which was not satisfactory and which was taken out of production fairly shortly thereafter and has been in storage ever since. One of the witnesses was said to be the inventor of this machine.[8]That gave rise to certain logistical problems. The machine was in a warehouse in Luoyang in China. The claimants had had no chance to inspect it; LNG on the other hand had had a chance to find it and photograph it (and indeed buy it). Some sort of agreement was made to allow Tamglass to inspect the machine over the weekend of 10th/11th December, and it seemed that a satisfactory arrangement had been put in place to achieve that, including the provision of a letter of authority. However, when Tamglass’s representatives arrived to inspect it they were refused permission and no inspection took place. The trial therefore started before me on Thursday 15th December with the machine uninspected. Mr Wang applied to introduce his late evidence (and an amendment to go with it). Tamglass’s primary position was that it opposed the amendment, but alternatively it required the opportunity to inspect the machine and make its own inquiries (and find its own evidence) in relation to the machine. It remained possible that the new case could be advanced without undue prejudice to Tamglass, but that would depend on whether an inspection could take place. I therefore declined to rule on the point until Tamglass had had a proper opportunity to inspect, and I ordered that LNG provide another opportunity for inspection over the weekend of 17th/18th December. That inspection took place; a Mr Sulonen was able to see it, inspect it and photograph it. He is a Tamglass engineer who happened to be involved in the installation of other equipment in the region.[9]There remained the problem of relevant witnesses giving evidence in relation to this late material. Mr Gao is in this jurisdiction, and there was no problem about his giving oral evidence. The other two LNG witnesses were in China. There was no prospect of them being able to fly to this jurisdiction in order to give oral evidence, and have their witness statements tested, before the end of the Michaelmas term, since it would have taken at least three working days for them to get visas. The prospect of their giving video evidence in Hong Kong was considered, but apparently it would have taken them three working days to get the permits to go to Hong Kong. It was therefore proposed that they would give video evidence in Shanghai. That intention was frustrated by various things. First, the video equipment in Shanghai was not compatible with the court’s equipment. Second, the necessary evidence that the Chinese government did not object to evidence being taken in this way was not forthcoming in time (or at all). Third, one of the witnesses indicated that he was not prepared to be cross-examined after all. It was not apparent that the willing witness had actually turned up at the video site at the time arranged anyway.[10]In the meantime, Mr Sulonen had given evidence by video link of what he saw on the inspection. He did so by video link from Hong Kong on the morning of Monday 19th December. I received his evidence de bene esse because technically the question of the admission and status of LNG’s new evidence had not been determined. This evidence was given in the morning of the 3rd day of the trial. It was on the 4th day that the attempt to take video link evidence from the LNG witness failed. The obtaining of video evidence of another Tamglass witness in relation to the 1985 machine was successfully obtained by video link from Hong Kong on that fourth day. Immediately before that happened I ruled formally on LNG’s outstanding application to allow in its new evidence (and a related amendment of the pleading). Mr Tappin’s attitude in relation to that was a very reluctant non-opposition; his clients had, by dint of a considerable effort, managed to put themselves in a position in which they could deal with the point, so the amendment was allowed and LNG were permitted to adduce their new evidence on the 1985 machine. That happened at about 10.30 am. About 2 hours later, when the hearing had resumed in the normal court (as opposed to the video-equipped court) Mr Wang indicated that LNG would no longer rely on the 1985 machine as being prior art after all and it fell out of the picture other than as relating to credibility. A considerable amount of time and costs (not to mention effort) was wasted in dealing with it. Mr Tappin told me in his final speech that the wasted costs involved were getting on for £100,000. Some of the figures that he put forward struck me as a little extravagant, but I do not doubt that the cost was considerable. I ordered at that point that his clients should have those wasted costs in any event, to be assessed on a basis which I have yet to determine (Mr Tappin asked for costs on an indemnity basis, and an interim payment).[11]I should add two things. First, throughout all this Mr Wang conducted himself with dignity and courtesy in this court, in his dealings both with me and with his opponents. Second, Mr Tappin, his instructing solicitors and Tamglass itself are to be commended on the entirely practical way in which they dealt with the shifting and fast moving events of this trial, unaccompanied by any unhelpful forensic or tactical huffing and puffing of the kind that one still not infrequently encounters. Their entirely appropriate and sensible approach enabled the principal focus to remain firmly on the issues in the case and not on procedural points, and greatly assisted the efficient conduct of the case.

Title

[12]LNG did not, in the end, dispute that Tamglass was the current owner of the patent; technically there had been an issue as to this on the pleadings. The route by which Tamglass claimed title was a somewhat unusual one. The patent application was originally made by another company known as OY Kyro AB. In December 1988 it was transferred to a company known as Tamglass Oy and that transfer was registered at the EPO. There is some evidence that from the early 1990s the claimant (which is not the same company as Tamglass Oy) was treated as the owner of the patent for accounting purposes and that Tamglass Oy was not. However, there is no evidence of any actual transfer. Accordingly, the claimant did not acquire title at that time.[13]There then followed a short series of mergers and demergers over the next few years. Since there is no real contention in relation to the title issue, it is not necessary for me to give the details of those mergers and demergers. I received unchallenged expert evidence on Finnish law, which provided that under Finnish law title to assets could pass without express assignment from one company to another as a result of these mergers and demergers. As a result of this exercise a company known as Kyro Oyj Abp, also known as Kyro Corporation, became the owner of the patent from 31st March 2001. On 17th May 2004 that company executed an assignment in favour of the claimant company, along with all accrued rights to sue for breach.[14]Section 30(6) of the Patents Act 1977 requires assignments to be in writing. However, section 30(3) allows for assignment by operation of law. Having considered the evidence, I am satisfied that the written documents referred to above amounted to assignments in writing, and the various Finnish statutory provisions relating to the effect of mergers and demergers under Finnish law provided for a chain of intermediate assignments by operation of law within that subsection. As a result, I am satisfied that the claimant has properly acquired title to sue in this action. I understand that Novaglaze may have a point in relation to accrued rights of action for prior infringements as against them. Mr Tappin did not invite me to make any finding which would impinge upon that particular point, which can be dealt with (if necessary) in due course.

Infringement – the machine

[15]Infringement is technically an issue in this case. However, in my view, as a result of a series of admissions made by LNG, there is no significant issue about it at all. LNG was asked to admit that the infringing machine (installed in Novaglaze’s premises) had all the features comprising the integers of the various claims. There was one qualification in relation to claim 12, but since claim 12 is not an independent claim that does not matter. Accordingly, and subject to some points made by Mr Gao, the allegedly infringing machine demonstrates all the relevant features and therefore infringes.[16]Mr Gao, as expert for LNG, said that the allegedly infringing machine had a number of additional and different features. For example, in the infringing machine the curve is effected not merely by the effect of gravity, causing the glass to subside into the hollow created by the subsiding conveyor belt, but it is also formed, or is assisted, by some upper rollers of the same curvature. I have considered these differences and additions carefully. They are in fact all additions, which do not prevent the allegedly infringing machine from having the various features set out in the claims of the patent, and the machine therefore infringes. I so find.

The revocation claims – anticipation and obviousness

[17]The two attacks on the validity of the patent were anticipation and obviousness. Each side adduced evidence from someone said to be an expert, in the usual way, in order to deal with these matters. Tamglass adduced evidence from Mr Harri Perämaa. At one time he was an employee of the Tamglass group, but for many years he has been an independent consultant. He produced a helpful report on which he was very briefly cross-examined. The cross-examination was extremely short and there was no serious challenge to any material part of his report. This may be because Mr Wang did not fully appreciate what had to be done in this respect, but whatever the reason the extent to which Mr Perämaa’s evidence conflicted, or might have conflicted, with LNG’s case was not really tested. That is the regrettable consequence of LNG’s decision to part company with its English lawyers and entrust the case to a gentleman with little apparent feel for what had to be done. Mr Wang, of course, was extended the usual assistance that the court (and indeed the litigant’s opponent) gives to litigants in person, but this state of affairs means I have to approach Mr Perämaa’s evidence with particular care, and I cannot, and by and large do not, treat Mr Perämaa’s evidence as standing in full merely because it was not materially challenged. I have had to conduct the evidence of weighing him and his evidence against that of the defendant’s evidence without the benefit of the usual testing. Bearing all this in mind, I nonetheless considered that Mr Perämaa was a careful and conscientious witness. It will be apparent from what appears below that I accept what he said on most material points.[18]LNG’s expert evidence came from Mr Gao Xueming. Mr Gao’s evidence suffered from various problems or difficulties. First, he was not fully independent. He is the president of LNG with a shareholding which was at one stage about 70% but which may now be a little less. Accordingly, not only was he effectively employed by LNG, he has a significant interest in it and its business. Second, it was not apparent to me that anyone had ever drawn his attention to the requirements of an expert in English legal proceedings, and in particular the Ikarian Reefer requirements. Third, Mr Gao did not demonstrate any great awareness of the need to address certain matters by means of an assessment of how they would appear to the skilled man who plays such a large part in patent litigation. Even when matters were carefully spelled out to him in cross-examination there was a certain difficulty in getting him to understand what was required. Fourth, much of Mr Gao’s report dealt with matters which were not germane to the issues, and those parts which did deal with relevant issues were not always easy to understand. It transpired that he had written his report in Mandarin, and it had been translated into English by a teacher. Mr Gao had signed the English version of the report without any indication that he had read or understood it, or even that he recognised it. There was not even a certificate from the interpreter, and I could only receive the English version by virtue of the fact that Tamglass were able to confirm that the English version did indeed seem to be a translation of the Mandarin (the Mandarin having been made available to them only at the trial). Fifth, Mr Gao did not speak English anyway, and the entirety of his cross-examination had to take place through an interpreter. This presented its own difficulties when technical matters had to be translated.[19]All in all, therefore, there were serious problems with Mr Gao’s evidence. It was something of an indulgence to allow it at all in the circumstances, but allowed it was. The quality of the evidence has to be judged with the above factors in mind. Some of them require me to give very careful consideration before giving a lot of weight to evidence which would support LNG’s case. Failure to appreciate the deemed position of the deemed skilled man diminishes weight even further; but I must be careful not to hold things against Mr Gao where problems with the evidence might have arisen out of a failure of interpretation or a misunderstanding (of which I am sure there were quite a few). Mr Tappin put to him various things which he said indicated that the 1985 machine had in fact been available to LNG from the beginning of this action, and the assertions that they only found the machine in November were a fabrication. I was invited so to find, and to find that that affected Mr Gao’s credibility. I was also invited to find that certain of his answers were deliberately evasive, again demonstrating that he was not a witness on whose evidence reliance should be placed. As to the first, I can see why the material that Mr Tappin relied on (certain pleaded matters) would cause the question to be raised. However, the translation process seemed to me to make it difficult to be sure that Mr Gao was understanding what was put to him in this respect, and for me to be satisfied that the matter had been put to him in a manner which made it possible for him to deal with it properly in evidence. This is no criticism of Mr Tappin whatsoever – it reflects the difficulties in dealing with detailed and technical matters via an interpreter. I can see why Tamglass is suspicious, but I cannot actually find that the facts that they suspect are indeed true (nor do I need to make a finding one way or the other). I also do not find that Mr Gao was ever deliberately evasive in his answers – it is possible that failure to address points put to him were down to misunderstandings arising out of interpretation difficulties. Having said all that, I approach Mr Gao’s evidence with considerable caution. I did not have from him the assistance that I would normally expect from an expert and I did not find him or his evidence as convincing as that of Mr Perämaa.

Anticipation and obviousness

[20]LNG’s case under this head was originally based on nine prior patents or applications (as well as the 1985 Chinese machine which fell away as described above). Mr Perämaa’s evidence dealt with all of those patents or applications; Mr Gao’s did not. At an early stage of the trial Mr Wang indicated that in fact LNG was going to rely on only three of those patents or applications. That limited the debate which was necessary at the trial. I shall take each of the three items in turn.

The 425 patent

[21]This is a US patent number 4540 425. It involves passing a sheet of glass out of a furnace and moving it through a curve pre-defined by two sets of rollers – the glass passes between the two sets. The rollers are curved in accordance with the curve which it is desired to form; the curve starts at a point almost immediately after the sheet of glass has left the furnace. The rollers are carried on two flexible strips a bit like bicycle chains (or at least that is good enough for the purposes of description), and the curve is defined by draping them over a template of the desired shape. In order that the template can be installed, there is a lever system which raises the two rows of rollers on their strips away from the template; one template is removed and another replaces it; and the lever is then released to allow the rollers to drape themselves over the new shape. After the initial section of the curve, nozzles are deployed to blow air on to the glass to cool it as part of the tempering process. The curve effectively follows a downward path; in the preferred embodiment the path of the glass seems to be assisted by gravity. The glass is taken away at the end of the rollers.[22]LNG acknowledges differences between what is disclosed in the 425 patent and the alleged inventions in the patent in suit, but also says there are similarities. Mr Gao relies on the fact that there are roller groups for bending which are formed on supporting elements. The shape of the roller group changes when the supporting element is changed.[23]That may be true, but it does not mean that the 425 patent anticipates. The plane in which this all takes place is different; in the 425 patent the plane tends to the vertical whereas in the patent in suit claims 2 and 7 require the shaping to take place in the horizontal plane. The mechanical manner in which the desired curve is provided is also different. The 425 patent requires the process to stop and for the template to be replaced, at which point the process can start again. The patent in suit allows a much quicker form of adjustment which can vary quickly from one piece of glass to the next. Again, the 425 patent achieves a sequential bending of the glass. First the leading edge bends as it starts to adopt the curved path imposed by the rollers, followed in due course by the rest of the glass. The patent in suit requires and achieves that the machinery bends all relevant parts of the glass almost simultaneously (see particularly claims 1 and 7). Mr Gao admitted that this could not be built into the 425 patent. Last, the patent in suit secures the continuous movement of the glass by oscillation, whereas the 425 patent simply moves the glass one way down through the rollers. All these matters show that the 425 patent does not anticipate.[24]The differences are not steps that would have been obvious to the skilled addressee of the patent in suit. Mr Gao said that adding oscillation to the 425 patent would be an obvious thing to do. Mr Perämaa disagreed. His evidence was to the effect that not only was it not obvious to do that, it would not actually be possible. This is one of the areas where not having had Mr Perämaa specifically cross-examined on the point leaves the evidence in an unsatisfactory position, but overall I think he is probably right about the difficulties. Having curved the glass into something like a vertical plane, it would probably not be easy (to put the matter at its lowest) to introduce sufficient gripping to be able to reverse the glass and pull it back up for a short period. In any event, it would not have been obvious to do so. The trick is to keep the glass moving. If it has to be pulled through a curve, the obvious thing to do is to keep it going; it is not obvious that it is sensible or useful to pull it back up through the curve. Mr Gao acknowledged that oscillating flat glass in the tempering process was known in 1986 and that oscillating bent glass was not. No basis was put forward for saying that the other differences would have been obvious developments.[25]Putting the matter shortly, therefore, there are the following material differences between the apparatus as disclosed in the 425 patent and the inventions of the patent in suit which mean that the 425 patent does not anticipate and where the differences would not have been obvious to the skilled addressee: i) The glass is bent sequentially along its length in the 425 patent starting with the leading edge, whereas in the patent in suit the glass is bent at all points more or less simultaneously. That feature of claim 1 is not disclosed by the 425 patent, and the development is not obvious. ii) The 425 patent does not disclose oscillation. Contrast the patent in suit – it is an integer of all the claims. I find it is not an obvious development of the 425 patent, if indeed it is possible. iii) In the method of claim 2 of the patent in suit the curve is achieved by arching the conveyor whilst maintaining the tangent of the middle portion of the curve in a substantially horizontal plane. The practical significance of this is that the plane in which the glass is held is substantially horizontal. This is not disclosed in the 425 patent and it is not apparent how this would even be possible, let alone obvious, as a modification of what is disclosed in that patent. Mr Gao’s evidence did not suggest that it was. iv) In claim 15 there appears the integer that the curving takes place once the glass is in situ on the rollers. The glass is carried there flat, and then the carrying mechanism adopts the curve. This is not disclosed by the 425 patent, where the curve is produced by passing a sheet of glass through a pre-established curve. Mr Perämaa said that the patent in suit’s approach is completely different to that in the 425 patent, and that producing, or altering, a curve while the glass was between the rollers would not occur to the skilled man looking at the latter patent. I agree with him. Mr Gao did not agree, but other than asserting that, and saying that he had engineers who had such ideas, he was unable to support his assertion. I do not accept his evidence. v) Claim 7 discloses the invention of rollers in a tempering and bending section carried by support members connected with links and lever arms, which can be curved by varying the angle between the support members. The 425 patent contains nothing like that. Mr Gao sought to say that an engineer would think of adding them, but was unable to suggest how, and I do not see how or why they would be inserted at all. Again, the two ideas for achieving bending go about the matter in a very different way. All Mr Gao could suggest was that inventions sometimes come out of the blue or occur by chance. He is right about that, but it does not make them obvious.[26]For those reasons, therefore, patent 425 does not anticipate or render obvious the inventions claimed in the patent in suit.

The 426 patent

[27]This is another US patent, number 4540 426. This is another patent involving passing glass between two sets of rollers. This time the heated sheet of glass is curved upwards between parallel sets of rollers. A flat heated sheet of glass is brought to the beginning of the curve by rollers, at which point it follows the curved path defined by the lower set of rollers, whilst being held in place by the upper set of rollers. The distance between the two is adjusted in order to reflect the thickness of the glass. If a simple curve is required then the rollers are straight cylindrical rollers. If a more complex curve is required then the two sets of rollers can be curved in order to produce that more complex curve. An important part of the patent seems to be some form of pivoting arrangement to make sure the glass exits the curve on to the next conveyor belt safely so that it can be conveyed away in a safe manner. This part of the patent is not germane to the present action. The patent does not specify how the curved profile is to be changed. Mr Perämaa considers that if a different curve is required then a different frame, containing the right curve and the right shape of rollers, has to be substituted. In the end that was agreed by Mr Gao.[28]Bearing all that in mind, I find that the following material differences exist between the 426 patent and the patent in suit which mean that the 426 patent does not anticipate, and there is no basis for saying that the differences are steps which would have been obvious to the ordinary skilled addressee: i) Like the 425 patent, the 426 patent curves the glass sequentially, starting with the leading edge; the patent in suit curves all the relevant parts almost simultaneously. It would not be possible, let alone obvious, to adapt the 426 patent to achieve this. ii) The 426 patent does not have oscillation built in; the patent in suit does. Mr Perämaa says it would not be possible to build it in because the 426 patent is designed to be used as part of a continuous process, and if the piece of glass were to reverse direction it would bump into the piece of glass which is following behind. That would be true if the invention inevitably had to be used in such a manner. However, the patent in suit has, as I have described, a series of switches which move the relevant parts of the conveyor system only when there is a piece of glass requiring movement; and I do not see why that could not have been adopted with the 426 patent. Mr Perämaa said that once the glass has reversed it would not be easy or possible to start it moving upwards again. I do not understand why that is the case; the 426 patent is designed and intended to move the glass upwards through its curve and out on to a second conveyor, and I do not see why it matters whether or not that upwards process is the first one or one which comes after a short downwards trip. However, I do accept that oscillation is not an integer of the 426 patent, and I accept that its introduction would not have been obvious. Mr Gao asserted that it was, but I do not accept that unreasoned evidence. He did not deal with the point in his report and his evidence in cross-examination on this was a little confused and little more than assertion. I find that adding oscillation to the 426 patent would not have been obvious. iii) The means of changing the curvature is completely different. The curving rollers in the 426 patent are on a fixed frame. The patent in suit has its system of levers and support members. There is no basis on which it can be said that the substitution of the fixed frame by the movable rollers was an obvious development, and none was suggested. iv) The glass is not held in a substantially horizontal plane in the 425 patent; contrast the patent in suit. This is not possible, let alone obvious, as a development of the 426 invention.[29]It follows from this that the 426 patent fails to anticipate the same integers as the 425 patent, and in substantially the same respects. I do not need to itemise them again here. It also follows that the differences are not bridged by obviousness.

The 301 application

[30]This is a UK patent application numbered 2028 301A. In this application glass is again passed between two sets of rollers which are set in a pre-defined curve. The rollers are mounted on two laterally spaced half-elliptical leaf spring assemblies, and the curve is produced by deflecting the springs and thus the rollers. The upper rollers move with the lower set.[31]This application was pleaded as anticipating, and was one of the three that Mr Wang said that LNG still relied on. However, it was not dealt with or relied on by Mr Gao in his report. Mr Perämaa pointed out the differences between this application and the patent in suit, which are essentially the same as those already referred to above in relation to the other patents. He was not challenged on this, and his evidence is plausible. On this state of the evidence I accept what he says and find that the matters disclosed in this application do not anticipate the relevant integers of the patent in suit.

Conclusion on revocation

[32]It follows that the attack on the patent based on want of novelty and obviousness fails.

Infringment – the defendants

[33]LNG did not argue this feature at all. Out of an abundance of caution Mr Tappin sought to deal with all features of this area of the case.[34]Section 60 of the Patents Act 1977 provides as follows: “Meaning of infringement 60(1) Subject to the provisions of this section, a person infringes a patent for an invention if, but only if, while the patent is in force, he does any of the following things in the United Kingdom in relation to the invention without the consent of the proprietor of the patent, that is to say:(a) where the invention is a product, he makes, disposes of, offers to dispose of, uses or imports the product or keeps it whether for disposal or otherwise;(b) where the invention is a process, he uses the process or he offers it for use in the United Kingdom when he knows, or it is obvious to a reasonable person in the circumstances, that its use there without the consent of the proprietor would be an infringement of the patent;(c) where the invention is a process, he disposes of, offers to dispose of, uses or imports any product obtained directly by means of that process or keeps any such product whether for disposal or otherwise.” 60(1) Subject to the provisions of this section, a person infringes a patent for an invention if, but only if, while the patent is in force, he does any of the following things in the United Kingdom in relation to the invention without the consent of the proprietor of the patent, that is to say:[35]It is apparent from all the evidence that LNG has imported the infringing machine and supplied it to Novaglaze. That much is admitted in a formal admission dated 12th April 2005, served in response to a formal notice. The sale documentation is in evidence, and it makes it clear that the seller was LNG. It was shipped in June 2003, according to the documents, and it arrived in Southampton in September 2003. I have already found that the Novaglaze machine infringes, so it follows that LNG has infringed in relation to claim 7 (which contains a product or apparatus claim) by importing for the purposes of section 60(1)(a).[36]So far as the inventions are processes it is said that LNG offered those processes for use in the UK knowing that they infringed, or in circumstances in which it was obvious to a reasonable person that their use without consent would be an infringement. I find that these requirements are fulfilled.[37]So far as making offers are concerned, I find the following: i) Offers were made in a draft contract bearing the date 8th August 2002, and in a final form which was sent to Novaglaze and signed, bearing the date dated 12th March 2003. The contracts were sent to Novaglaze in the UK. ii) In a fax dated 18th October 2002 LNG’s agents, known as CATSA, offered machines which infringed to a company called Romag Ltd. It was CATSA’s job to promote LNG’s machines to potential customers in Europe (as Mr Gao confirmed). Romag Ltd is an English company. CATSA is a Swiss company. The fax is an offer of a list of machines identified by number but described in general terms, and which puffs the machines and LNG. It is nothing like a formal contractual offer, capable of acceptance as such. LNG’s pleading takes the point that this is merely an invitation to treat and therefore not an offer within section 60. I disagree. In Gerber Garment Technology Inc v Lectra Systems Ltd [1995] RPC 383 Jacob J had to consider whether advertisements, or negotiations without a firm offer, were an “offer to dispose” within section 60(1)(a) of the 1977 Act. He declined to classify them for these purposes as mere invitations to treat and therefore not offers and said (at p 412):
“A party who approaches potential customers individually or by advertisement saying he is willing to supply a machine, terms to be agreed, is offering it or putting it on the market. If that is to happen during the life of the patent he infringes. He is disturbing the patentee’s monopoly which he ought not to do. So I think the early advertisements were infringements, not mere threats.”
If things in the nature of advertisements can be offers within section 60 then this fax from LNG’s agents can amount to an offer too and I find that it does.[38]The next question is whether LNG knew that the use without consent would infringe, or whether it was obvious to a reasonable person in the circumstances that it would.[39]LNG adduced no evidence on whether it knew or not. There was no witness, witness statement or disclosure dealing with the point. It is clear from other evidence that LNG knew of the significance of patents. It is a substantial company, and its own publicity brochure referred with pride to its own patents. Mr Gao seemed to admit that it is likely that before LNG started to sell into significant markets (of which Europe is one) it would check the patent position, and at another point he said they should have checked, but he was unable to say whether such a check was made before the Novaglaze machine was negotiated and sold. Mr Liettyä, one of Tamglass’s vice-presidents, said that he did not believe that a significant company like LNG would invest large sums of money in developing, manufacturing and selling costly machinery like the Novaglaze machine without investigating the patents owned by significant competitors (of which Tamglass was certainly one). Tamglass had publicity brochures. One of those brochures showed a machine embodying the invention in the patent in suit, and it referred to the fact that it embodied patented technology. This brochure was available at trade fairs known as Vitrum and Glasstech, held in alternate years and attended by both Tamglass and LNG. Vitrum was held in 2001, and Glasstech in 2002. Mr Gao told me that the job of LNG representatives at these exhibitions was to show LNG’s wares, but it was also their job to see what the opposition was doing. At one point he sought to say that it was not likely that LNG’s representatives would have got this brochure because Tamglass’s stand would have been crowded, and it would not have been easy to get the brochure.[40]To put it at its lowest, there is certainly some evidence in all this which points towards knowledge albeit indirect and by inference. If this were a case in which LNG had been properly represented at trial and throughout the proceedings its failure to adduce any evidence of its own relating to knowledge of infringement, and its thought processes on the point (or why it had no thought processes on the point, which might be more relevant to an assertion of absence of knowledge) would be something that could be taken into account against it in considering whether it had the relevant knowledge. I consider that any well-advised litigant would explain its own factual position on knowledge and seek to justify it, and a failure to do so might well (depending on the evidence the other way) be a significant factor supporting a case of knowledge. However, this is not such a case in that LNG has not been represented for many months, and certainly not during the evidential and trial preparation stage. It may therefore be the case that its failure to adduce evidence on the point, and Mr Gao’s professed ignorance of what others in his company may have known, is attributable to LNG’s failure to appreciate that it needed to deal with the point itself. There was plenty of evidence from the trial process itself that LNG was not fully aware of much of what was required in order for it to have the best chance of resisting the claims made in this action. I must therefore be a little more careful before taking that failure against LNG. However, even doing that, I am prepared to find, and do find, that LNG knew that the process infringed. LNG is a significant company. It has some 20 engineers. Its own publicity claims it produces many machines each year, and the Novaglaze machine cost over $900,000. It claims to have development expertise. It exhibits at international exhibitions. I think it would require a very high degree of almost wilful blindness were it to be ignorant of the patent in suit and its processes, and knowing of it to fail to appreciate that its own product infringed. I do not accept that it had that degree of wilful blindness. I think that it probably knew.[41]However, even if I am wrong about that, the above evidence and other factors means that infringement would have been obvious to the reasonable man within the meaning of section 60. The existence and importance of patents in the technological area in question is clear. A reasonable person would have known of that importance. Mr Gao himself said that checks should have been made and Tamglass’s position in the trade and its ownership of patents generally would be known to anyone in the trade. The relevant Tamglass brochure was made available at a fair attended by LNG. So far as perceptions of the patent are concerned, the relevant integers are quite clear enough. It is quite clear to me that in the circumstances a reasonable person with the attributes of the skilled man would have found it obvious that the LNG product infringed at the time of the offers for use in the UK.[42]So far as Novaglaze is concerned, it is said to infringe in respect of the apparatus claim (claim 7) by using and keeping the Novaglaze machine. In respect of the process claims (claims 1, 2 and 15) it is said to infringe by using the machine to bend and temper glass, by offering it for that purpose knowing, or it being obvious to a reasonable person, that its use would be an infringement, and by disposing of, offering to dispose of and keeping bent and tempered glass obtained directly by means of the processes. By its admissions following a notice to admit facts it admitted that it operated the machine according to the processes of the three process claims, and in recent correspondence it has admitted that the Novaglaze machine has all the features of claim 7. It has also admitted the use of the machine to make bent and tempered glass which it keeps, offers for sale and sells. The only live point in relation to infringement by Novaglaze is therefore whether it knew of the infringement or whether it would have been obvious to a reasonable man in the circumstances.[43]Tamglass adduced evidence from Mr Stephen Brammer. He is the managing director of a UK Tamglass subsidiary. In 2001 he had dealings with Mr Kenneth Woodcock, Novaglaze’s managing director. Mr Woodcock was considering purchasing a machine at the time (he ended up buying LNG’s) and contacted Tamglass. He visited them in this country and in Finland. He told Mr Brammer (who was then a sales manager) that he was thinking of buying from China, and was immediately told by Mr Brammer that Tamglass machines were protected by patents and that he believed that machines supplied by Chinese manufacturers were infringing copies. Mr Woodcock is said to have responded that he was not concerned about patents because he believed that infringements were difficult to prove, and anyway he would not allow anyone into his factory to see the machine. There was before me a witness statement from Mr Woodcock in which he said that he had no recollection of making his remark about patents, but Novaglaze was not represented at the trial and therefore did not actually put it in evidence. By the same token Mr Brammer’s evidence was not challenged. I find that Mr Brammer’s evidence is correct, and on the basis of that I find that Novaglaze either knew of the infringement or was wilfully blind as to it, which is probably the same for these purposes. Even if that is wrong then a reasonable person in his position, being a person in the trade who has been told what Mr Brammer said, would have known that the use of the processes without consent would be an infringement – it would have been obvious. Novaglaze is therefore liable in the manner claimed. Conclusion[44]I therefore find the patent in suit to be valid, and that LNG and Novaglaze have infringed. The precise relief to be granted will be determined at a later hearing. Appendix Tamglass patent claims Claim 1: A method of bending a glass sheet to be tempered, comprising the steps of - carrying the glass sheet on horizontal rollers - heating the glass sheet for bending and tempering - curving the heated glass sheet around an axis of curvature transverse to the travelling direction - effecting the tempering of the curved glass sheet while keeping said glass sheet in a reciprocating or oscillating motion by means of rollers carrying the glass sheet, characterised in that said curving around an axis of curvature transverse to travelling direction is effected in a manner that it takes place simultaneously and at substantially the same rate over the entire glass sheet area while moving said glass sheet by means of rollers carrying it. Claim 2: A method of bending a glass sheet to be tempered, comprising the steps of - carrying the glass sheet on horizontal rollers - heating the glass sheet for bending and tempering - curving the heated glass sheet around an axis of curvature transverse to the travelling direction - effecting the tempering of the curved glass sheet while keeping said glass sheet in a reciprocating or oscillating motion by means of rollers carrying the glass sheet, - characterised in that said curving around an axis of curvature transverse to travelling direction is effected by arching the plane of a conveyor roller line at least over a distance corresponding to the added-up length of the length of the glass sheet and the length of its oscillating stroke in a manner that, beginning from a horizontal plane, the plane of the roller line curves with a continuously diminishing radius of curvature until a desired final radius of curvature is reached, and during the curving process, the tangent of the mid-portion of a curved conveyor section is maintained substantially in a horizontal plane. Claim 15: A method of bending a glass sheet to be tempered, comprising the steps of: - carrying the glass sheet on horizontal rollers - heating the glass sheet for bending and tempering - curving the heated glass sheet around an axis of curvature transverse to the travelling direction - effecting the tempering of the curved glass sheet, characterised in that the glass sheet is carried onto a bending and tempering section roller conveyor as the latter is in flat condition, whereafter said flat roller conveyor is curved or arched around an axis of curvature transverse to travelling direction while moving the glass sheet, curving of conveyor is stopped and blowing of cooling air is started to both surfaces of the glass sheet while maintaining said glass sheet in an oscillating motion by means of the rollers of said curved roller conveyor. Claim 7: A bending and tempering apparatus for glass sheets, comprising a loading station (1), a heating furnace (2), a bending and tempering section (3) and an unloading station (5), heating means (12) in the furnace for heating glass sheets, chilling means (13) in the bending and tempering section for tempering a bent glass sheet, roller conveyors (6 to 11) consisting of horizontal rollers for carrying glass sheets from the loading station(1) to the unloading station (15 [sic, 5]) through the furnace(2) and the bending and tempering section (3), drive means (M1, M2) for operating the roller conveyors, adapted to drive in an oscillating fashion at least a bending and tempering section roller conveyor (9), characterised in that the rollers (9a) of said bending and tempering section roller conveyor (9) are carried by support members (21, 22) which are connected together with links (9b) and lever arms (31) to build a support beam, which extends in the travelling direction and can be curved around an axis of curvature transverse to the travelling direction by varying the angle between the individual support members (21, 22) of said support beam by means of lever arms (31) and power units (28).