No need to cry over spilt milk: summary judgment on patent non-infringement claimPrint publication
The Court of Appeal has upheld a summary judgment  on an application for a declaration of non-infringement of patent, showing that it is perfectly possible for non-infringement applications to be dealt with by summary judgment.
The application was for a declaration that a redesigned milk bottle did not infringe an earlier patent incorporating a plastic milk bottle design. The patent owner had brought an action against the defendant, a competitor in the milk bottle design industry, for infringement of the patent. The defendant produced a modified design and sought summary judgment on the declaration of non-infringement, on the basis that it needed commercial certainty.
On the summary judgment application, Birss J accepted that summary judgment was unusual in patent cases. This is because, as Birss J made clear, claim construction and infringement determination generally require expert evidence. In this case, the patent in issue was sufficiently simple; the claims did not use terms of the art; and there was no requirement for expert evidence to be adduced. This meant the court was able to construe the claims itself without the need for expert assistance and to determine that they would not be infringed.
The Court of Appeal agreed with Birss J, rejecting the submission that this was a case which required expert evidence. On a summary judgment application, it was necessary for the party claiming that the court was inadequately equipped to determine claim construction to identify, at least in general terms, the nature of the evidence proposed to be adduced and to explain why that evidence might impact claim construction.
Cases like this, where non-infringement applications are dealt with by summary judgment, will remain the exception rather than the rule but this decision does show that it is possible for non-infringement applications to be ‘mopped up’ quickly.
 Nampak Plastics Europe Ltd v Alpla UK Ltd  EWCA Civ 1293