Up the Spout: Bapco Closures v Selpac

In Bapco Closures Research Ltd and Another v Selpac Europe Ltd [2016] EWHC 550 (IPEC) (18 March 2016), His Honour Judge Hacon had to decide a very short but very interesting point of claim construction.

The patent in suit was European patent (UK) No 1, 656, 306 B1 which had been granted to Bapco Closures Research Ltd ("Bapco") for an opening device for a foil closure (that is to say, a ring pull). The invention is summarized in the following abstract:

"Disclosed is an opening device for a foil closure can be fitted to a container body. The device comprises a spout (4) with a removable disc (10) attached to a pull-ring (12). The disc (10) is secured to the spout (4) by means of a frangible region (30). A foil (8) is sealed to a raised land (34) on a base of the disc (10). The pull ring is mounted to the disc (10) by means of legs so that it applies a force on a peninsula (50) of the disc, thereby reducing the length of the arc over which an initial pulling force is dissipated when the initial tear is being initiated reducing the force required to tear the foil (8) by up to 40%."

The purpose of the invention was to address "the technical problem of minimising the effort needed to open a container closure. It is important to keep the force required to open containers to a minimum in order to reduce the risk of spillage during opening and to enable frail users to open the closure."

Claim 1 of the patent claimed:

"A closure (2) comprising:

• a spout (4) defining an opening (6),

• a removable plastics part (10) connected to the spout (4) by means of a frangible region (30),

• a pulling device (12) connected to the removable part by means of a leg (14), and

• means including a foil (8) creating a seal across the opening, between the removable part and the spout,

characterised in that the leg (14) is mounted such that it applies a force on a peninsula (50) of the removable part to tear the sealing means (8)."

Claim 14 claimed:

"A closure (2) comprising a spout (4) defining an opening, a removable plastics part (10) connected to the spout (4) by means of a frangible region (30), a foil (8) attached to the plastics part (10) and the spout (4) to form a seal across the opening, characterised in that a device is mounted such on the spout (4) such that it applies a pushing force to a peninsula at the periphery of the removable part (10)."

The defendant, Selpac Europe Ltd  ("Selpac") imported from Korea and distributed in the UK the opening device which is shown in the following diagrams. The first was marked up by Bapco:

The second was marked up by Selpac:

After referring to the Court of Appeal's decision in Virgin Atlantic Airways Ltd v Premium Aircraft Interiors UK Ltd  [2009] EWCA Civ 1062, [2010] RPC 8 and considering the prior art, the judge decided that a spout with a removable plastics part connected to the spout by means of a frangible region and a peninsular were essential features of both claims.

At para [55] he asked first whether the Selpac device had a spout. Noting that Selpac's closure was essentially flat or at any rate less than 1 mm the judge found that a user operated the Selpac  device by pulling the ring pull in the centre. That tears the foil in the region marked "V-shaped slot defining peninsula". As the user continues to pull, the inner ring lifts up and continues to tear the foil. After the inner ring has been lifted all the way round then the combination of the ring pull, inner ring, and foil all lift off together leaving the outer ring. Defining a spout as "a pipe or similar conduit through which water or other similar liquid flows and is discharged" and noting that the height of the closure was negligible, Judge Hacon found at paragraph [56] that the Selpac product did not have a spout.

As there was no spout it followed that the second feature could not be present.

However, he decided that the Selpac device did have a peninsula:

"I accept that the Defendant's products have a "pulling device" (the pull ring) and that this is connected to the "removable plastics part" (the inner ring) by means of a leg (the strip of plastic which links the two). The area indicated by the Claimants is not a protrusion, but it is at least a corner. Indeed it is not dissimilar to the third embodiment shown in the Patent. Moreover this corner forms a structure which 'results in a limited arc of the frangible region to which a pulling force created by the pulling device is applied and thereby increases a tearing pressure on the foil'

There being no spout, it followed that neither claim had been infringed and that the action failed.

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