“… is based on the discovery that application of differential motion locally to the pore opening will open a blocked pore. The opening of the pore is due to the fact that the blocking materials within the follicles have different physical properties than the wall of the infundibulum and the surrounding skin. With the present invention, the skin area is deformed slightly and then released to a relaxed position and then deformed slightly in the opposite direction and then again released to a relaxed position, at a specified frequency, which resulted in the plugs being loosened from their position in the skin pores. The loosened plugs can then be readily removed, such as by wiping or washing, permitting thereafter normal skin secretion of lipids, and consequently avoiding the consequences of more fully developed acne.”
“[0033]Figures 9A-9D show the action on the skin and a sebaceous plug with the shear aspect of Figures 6-8. Figure 9A shows a pore 78 blocked by a sebaceous plug 79 therein. The contact elements are in a neutral position. The movable contact element will then be moved in one direction, in parallel with the fixed contact element, which distorts the sebaceous plug (Figure 9B). The movable contact element and mounting plate combination is then reversed and returns to the neutral position. This is shown in Figure 9C. The movable contact element continues in the opposite direction, which deforms the sebaceous plug in the opposite direction (Figure 9D).”
“These configurations operate on substantially the same principles as the devices described above, but have contact elements composed of bristle tufts. In these embodiments, the base portions holding the bristle tufts are analogous to the mounting plates described above. Instead of rigid or compliant solid contact elements, a plurality of bristle tufts are employed.”
“The adjacent rows of bristle tufts for the devices shown in Figures 15 to 22 move relative to each other as an amplitude sufficient to deform the skin in region I and slightly into region II of Figure 4 as shown to produce the cleansing action.”
“[0059] It is also possible to combine the advantages of the differential shear mode and tension/compression modes described above into a compound motion, for example, elliptical.”
“[0060] It is also possible to apply bi-directional motion to the skin via a single set of contact elements for cleaning or clearing the infundibular opening. Unlike the case above in which there is a differential reciprocating motion between adjacent contact elements, the use of a single set of elements relies on inertia of the skin to affect a differential force on the pore openings. The single set of moving contact elements, such as a row of bristles, forces the skin immediately adjacent to it to move. This movement is coupled to skin regions somewhat distant through the skin’s elasticity. However, skin also has inertia which resists motion, thereby producing a shear force in the direction of movement. This shear force decreases at greater distances from the moving contact elements.”
“[0061] Applying bidirectional reciprocating movement via a single set of contact elements is generally not as effective as using adjacent contacting elements arranged to apply tension/compression or shear between them.”
“[0077] There are two basic modes of differential movement that can be applied: shear and tension/compression. The shear mode device applies a linear differential motion via narrow elements which contact the skin, and which move in the direction of their length with respect to each other. The device typically applies a sinusoidal oscillation to adjacent contact elements. The arrangement includes two contact element assemblies. The device moves the contact elements in parallel to each other along their long axis. Sufficient frictional forces between the surface of the contact elements and the skin surface will transfer this motion to the skin, creating a shear action on the skin between them as shown in Figures 9A-9D. “[0078] The tension/compression mode device, in contrast to shear mode, moves the contact elements toward and away from each other. The oscillations are perpendicular to the long axis of the contact elements (i.e. one element moving toward one neighbor and away from its other neighbor), thus creating alternating tension and compression stress in the tissue surrounding the infundibulum. Sufficient frictional forces between the surface of the contact elements and the skin surface will transfer this motion to the skin as shown in Figures 13A-13D.”
“In mechanics, compression is the application of aligned inward (“pushing”) forces to different points on a material or structure, that is, forces with no net sum or torque directed so as to reduce its size in one or more directions. Tension is the opposite action of compression. In contrast, shearing forces are unaligned forces pushing one part of a body in one direction, and another part of the body in the opposite direction.”
“… as I drew on the board, there are stress fields in front and behind of the element, that are causing the pore to be deformed and they are causing the pore to be deformed either in compression and in tension depending on the exact position of the element 57 with respect to the pore at that particular time.”
“While it would be arrogant to exclude the existence of any other circumstances, my current view is that reference to the file would only be appropriate where (i) the point at issue is truly unclear if one confines oneself to the specification and claims of the patent, and the contents of the file unambiguously resolve the point, or (ii) it would be contrary to the public interest for the contents of the file to be ignored. The first type of circumstance is, I hope, self-explanatory; the second would be exemplified by a case where the patentee had made it clear to the EPO that he was not seeking to contend that his patent, if granted, would extend its scope to the sort of variant which he now claims infringes.”
“Further, contrary to the Court of Appeal’s reasoning, I would have thought that if the specification had not referred to antifolates but had only referred to pemetrexed disodium, that would have been a more powerful indication that the patentee was intending to limit himself to pemetrexed disodium. The very fact that the specification teaches that there are other antifolate drugs which have a similar effect to pemetrexed disodium (coupled with the fact that it was generally known that cations other than sodium could be successfully used with anti-folates) highlights a point similar to that made by Lord Diplock in Catnic[1982] RPC 183 , 244, namely “No plausible reason has been advanced why any rational patentee should want to place so narrow a limitation on his invention” as to limit the scope of protection afforded by the Patent to pemetrexed disodium - a telling but not always conclusive point. Additionally, there is no teaching in the specification which relates to the relevance or importance of the sodium cation.”
“In respect of all of the bristles here, there is an angle here and it is moving free. There is obviously a row of bristles here that will be moving in the same plane; but yes, where it is angled, they are moving like this. So, on a different plane.”
“wherein the frequency of movement of the moving contact element is within the range of 80 - 200 Hz”
“the contact elements could also be coated with a compliant material or be composed entirely of compliant material …or the contact elements could be replaced by bristle brush tufts or the like.”
"A further alternate mechanical configuration is shown in Figures 15-22. These configurations operate on substantially the same principles as the devices described above, but have contact elements composed of bristle tufts."
"The present invention is intended to operate in a frequency range of 20 -1,000Hz. A preferred range is 80-200Hz."
“17 Whilst I accept that this is not to be treated as a closed list of categories, I consider that they are all examples of situations where either something has obviously gone wrong or relevant material was overlooked through no fault of the parties. In my view they do not sit easily with the situation where a party knows the relevant facts (or, where appropriate, the relevant law) but simply fails to appreciate a potential legal consequence of the matters of which it is aware. 18 It therefore seems to me that in principle there has to be something more than a post-judgment second thought based on material that was already in play. If it were otherwise, any fresh point that occurred to a party following the handing down of a judgment would entitle the party to require the court to hear further submissions with a view to revisiting the judgment. That would then become the rule rather than the exception. It seems to me that this would accord neither with the interests of finality of judgments nor with the overriding objective to deal with cases justly and at proportionate cost, particularly in the sense of ensuring that parties are on an equal footing, avoiding unnecessary expense and dealing with cases expeditiously. However, at the end of the day the court has a discretion which must be exercised judicially and not capricious.”
“The assessment as to whether a design has individual character should be based on whether the overall impression produced on an informed user viewing the design clearly differs from that produced on him by the existing design corpus, taking into consideration the nature of the product to which the design is applied or in which it is incorporated, and in particular the industrial sector to which it belongs and the degree of freedom of the designer in developing the design.” ii) Article 3(1)(a) which defines “design”: “ … “design” means the appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colours, shape, texture and/or materials of the product itself or its ornamentation.” iii) Article 4(1) which concerns protection requirements: “A design shall be protected by a Community design to the extent that it is new and has individual character” iv) Article 5 which concerns novelty: “1. A design shall be considered to be new if no identical design has been made available to the public: … (b) in the case of a registered Community design, before the date of filing of the application for registration of the design for which protection is claimed, or, if priority is claimed, the date of priority. 2. Designs shall be deemed to be identical if their features differ only in immaterial details.” v) Article 6 which defines “individual character”: “1. A design shall be considered to have individual character if the overall impression it produces on the informed user differs from the overall impression produced on such a user by any design which has been made available to the public: … b) in the case of a registered Community design, before the date of filing the application for registration or, if a priority is claimed, the date of priority. 2. In assessing individual character, the degree of freedom of the designer in developing the design shall be taken into consideration.” vi) Article 7, which concerns disclosure: “1. For the purpose of applying Articles 5 and 6, a design shall be deemed to have been made available to the public if it has been published following registration or otherwise, or exhibited, used in trade or otherwise disclosed, before the date referred to in Articles 5(1)(a) and 6(1)(a) or in Articles 5(1)(b) and 6(1)(b), as the case may be, except where these events could not reasonably have become known in the normal course of business to the circles specialised in the sector concerned, operating within the Community.” vii) Article 10, which concerns scope of protection: “1. The scope of the protection conferred by a Community design shall include any design which does not produce on the informed user a different overall impression. 2. In assessing the scope of protection, the degree of freedom of the designer in developing his design shall be taken into consideration.”
“33. The designs are assessed from the perspective of the informed user. The identity and attributes of the informed user have been discussed by the Court of Justice of the European Union in PepsiCo Inc v Grupo Promer Mon-Graphic SA (C281/10 P) [2012] F.S.R. 5 at paragraphs 53 to 59 and also in Grupo Promer v OHIM (T-9/07) [2010] ECDR 7 , (in the General Court from which PepsiCo was an appeal) and in Shenzhen Taiden v OHIM (T-153/08), judgment of22 June 2010 . 34. Samsung submitted that the following summary characterises the informed user. I accept it and have added cross-references to the cases mentioned: i) He (or she) is a user of the product in which the design is intended to be incorporated, not a designer, technical expert, manufacturer or seller (PepsiCo paragraph 54 referring to Grupo Promer paragraph 62; Shenzhen paragraph 46). ii) However, unlike the average consumer of trade mark law, he is particularly observant (PepsiCo paragraph 53); iii) He has knowledge of the design corpus and of the design features normally included in the designs existing in the sector concerned (PepsiCo paragraph 59 and also paragraph 54 referring to Grupo Promer paragraph 62); iv) He is interested in the products concerned and shows a relatively high degree of attention when he uses them (PepsiCo paragraph 59); v) He conducts a direct comparison of the designs in issue unless there are specific circumstances or the devices have certain characteristics which make it impractical or uncommon to do so (PepsiCo paragraph 55). 35. I would add that the informed user neither (a) merely perceives the designs as a whole and does not analyse details, nor (b) observes in detail minimal differences which may exist (PepsiCo paragraph 59).”
“PMS contends that the design corpus includes all designs which qualify as prior art under Article 7(1) of the Regulation and are not excluded by either the obscure designs exception or the confidential disclosures exception. Magmatic disputes this, and contends that the design corpus consists of the designs with which the informed user is likely to be familiar. Thus there may be designs which are not quite obscure enough to be excluded by the obscure designs exception, and thus can be relied upon as prior art for the purposes of Articles 5 and 6 , but nevertheless do not form part of the design corpus when assessing the overall impression created by other designs for the purposes of Article 10 . In support of this contention counsel for Magmatic relied upon the passages from Grupo Promer and PepsiCo that I have just cited. He also relied on passages in the judgment of His Honour Judge Birss QC in Gimex International Groupe Important Export v Chill Bag Co Ltd [2012] EWPCC 31, [2012] ECDR 25 at [44]-[47] and [65], but those were addressed to a slightly different issue to the one presently under consideration. Nevertheless, I agree that Grupo Promer and PepsiCo support Magmatic's contention. For reasons that will appear, however, I consider that it makes no difference who is right about this in the present case.”
“There is nothing in a purposive construction of the Regulation, or indeed in the PepsiCo decision, that supports such a contention. In order to assess the validity of an RCD it is necessary to compare it against each prior design. If any one of those prior designs creates the same overall impression on the informed user as the RCD, that RCD is invalid. But it cannot be that an RCD that survives such an invalidity attack is then protected from the ‘kindred prior art’ that may be obscure-ish but not obscure. For the invalidity test to be the flipside of the infringement test the design corpus must include all prior designs. As a practical matter the legislature cannot have intended that the tribunal should have to apply an additional filter once a prior design is found not to be too obscure….”
“Once the notional informed user is defined, the question of overall impression can be resolved. From the point of view of assessing individual character (validity), the informed user must be presented with any given item of cited prior art whether or not it is a design for the product in question. Whether the cited prior art is or is not within the user’s design awareness is not the issue. If the cited prior art is not a design for a product of the kind the informed user has gained experience using then it will not be part of their design awareness, but it still must be considered for the purposes of novelty and individual character. The design is only protected to the extent that it has novelty and individual character.”
“130. However, the concept of an informed user cannot be interpreted as meaning that it is only if that user knows the earlier design that the earlier design could prevent recognition of the individual character of a subsequent design. Such an interpretation runs counter to Article 7 of Regulation No 6/2002. …. 131. The General Court’s finding, set out in paragraph 132 of the judgment under appeal, amounts to saying that, for the purposes of examining the individual character of a design, within the meaning of Article 6(1) of Regulation No 6/2002, the earlier design, whose disclosure to the public has been proved, within the meaning of Article 7(1) of that regulation, must be known to the informed user of the contested design. 132. However, nothing in Article 7(1) permits the conclusion that it is necessary for an informed user of the product in which the contested design is incorporated or to which it is applied to know the earlier design when it is incorporated in a product in an industry sector that differs from the relevant sector for the contested design, or is applied to such a product. 133. If the General Court’s finding, set out in paragraph 132 of the judgment under appeal, were to be followed, an applicant for a declaration of invalidity in respect of the contested design would have to prove not only that the earlier design had been made available to the public, within the meaning of Article 7(1) of Regulation No 6/2002, but also that the informed public of the design whose validity is contested knew that earlier design. 134. That would be tantamount to requiring an applicant for a declaration of invalidity to provide evidence of two disclosures: a first disclosure to those in ‘circles specialised in the sector concerned’ and a second disclosure to users of the type of product relevant to the contested design. Such a requirement, besides being incompatible with the interpretation of the phrase ‘sector concerned’ referred to in paragraph 129 of this judgment, would add a condition that neither the letter nor the spirit of Article 7(1) of Regulation No 6/2002 provides and would be irreconcilable with the principle arising from Article 10(1) of that regulation, according to which the protection granted by the Community design extends to ‘any design’ that fails to produce on the informed user a different overall impression.”
“… if a new design is markedly different from anything that has gone before, it is likely to have a greater overall visual impact than if it is ‘surrounded by kindred prior art’ (H.H. Judge Fysh's pithy phrase in Woodhouse at [58]). It follows that the ‘overall impression’ created by such a design will be more significant and the room for differences which do not create a substantially different overall impression is greater. So protection for a striking novel product will be correspondingly greater than for a product which is incrementally different from the prior art, though different enough to have its own individual character and thus be validity registered.”
“32. As the Court has recognised in its decisions, the designer’s degree of freedom in developing his design is established, inter alia, by the constraints of the features imposed by the technical function of the product or an element thereof, or by statutory requirements applicable to the product. Those constraints result in a standardisation of certain features, which will thus be common to the designs applied to the product concerned (Representation of a Circular Promotional Item, paragraph 67). 33, Therefore, the greater the designer’s freedom in developing the challenged design, the less likely it is that minor differences between the designs at issue will be sufficient to produce a different overall impression on an informed user. Conversely, the more the designer’s freedom in developing the challenged design is restricted, the more likely minor differences between the designs at issue will be sufficient to produce a different overall impression on an informed user. Therefore, if the designer enjoys a high degree of freedom in developing a design, that reinforces the conclusion that the designs which do not have significant differences produce the same overall impression on an informed user.”
“Although it is proper to consider both similarities and differences between the respective designs, what matters is the overall impression produced on the informed user by each design having regard to the design corpus and the degree of freedom of the designer. As Jacob LJ has emphasised repeatedly, the most important thing about each of (i) the registered design, (ii) the accused design and (iii) the prior art is what they look like: see Procter & Gamble [2008] F.S.R. 8 at [3], Dyson v Vax [2010] F.S.R. 39 at [8] and Samsung v Apple [2013] F.S.R. 9 at [28].”