Patents - Kwikbolt Ltd v Airbus Operations Ltd
Intellectual Property Enterprise Court (HH Judge Hacon) Kwikbolt Ltd v Airbus Operations Ltd  EWHC 732 (IPEC) (25 March 2021)
This was an action for an injunction, damages and other relief against aerospace manufacturer Airbus Operations Ltd, for patent infringement. There was also a counterclaim by Airbus for revocation of the patent on grounds of lack of novelty, obviousness and insufficiency. The action and counterclaim came on for trial before His Honour Judge Hacon between 9 and 12 Feb 2021. In Kwikbolt Ltd v Airbus Operations Ltd  EWHC 732 (IPEC) (25 March 2021) His Honour held that the patent was valid but that it had not been infringed.
The patent in suit is GB2455635B. It was granted for a removable blind fastener. The title might suggest that the invention has something to do with window blinds in an aircraft cabin, In fact"'Blind' is a term of art in the context of fasteners, meaning that the fastener can be fitted from one side of the workpiece, essential if the technician only has access to one side"
"A removable blind fastener 1 comprises a first member having an elongate body 11 with a head 12 at one end and a second member 20 having an elongate body extending from and adapted to slide relative to the first member. The second member 20 has at least one flexible finger 22A, C with a finger head at one end remote from the first member. A screw member 30 has a screw head adjacent the first member head 12 and a screw shaft 33 which passes through the first member and engages with a threaded aperture on the second member20. Rotation of the screw member 30 in one direction causes the second member 20 to slide towards the first member and biases the or each flexible finger 22A, C radially outward. Rotation of the screw member 30 in the other direction causes the second member 20 to slide away from the first member and allows the or each flexible finger 22A, C to move radially inwards. In use the fastener 1 is insertable through an aperture 40A, 50A in each of two workpieces 40, 50 which need joining together with the 12 head of the first member located against a face of one workpiece 40. Rotation of the screw member 30 causes the or each flexible finger 22A, C to expand radially outward so the finger head on the or each finger engages a face of the other workpiece 50 and causes the two workpieces 40, 50 to be drawn together as the second member 20 slides towards the first member."
"It is a purposive construction, the inventor's purpose being ascertained from the description and the drawings as they would be understood by a person skilled in the art with the common general knowledge in mind."
His Honour also directed himself that if a product or process does not infringe the claim as a matter of normal construction, the analysis moves to the second question which is whether the product or process nonetheless falls within the scope of the claim because it varies from the invention according to the normal construction in a way or ways which is or are immaterial.
"In my view there are no clear and unmistakable directions in McClure 1 to the invention of claim 1 because there is no disclosure of a fastener which is suitable for removal as a unit. On the contrary, the skilled person would understand that the sleeve insert should be secured to a workpiece. Claim 1 does not lack novelty over McClure 1. "
"This idea of isolating the collet fingers from the torque moment of the screw to avoid damaging the fingers and the workpiece seems to me to have been central to the inventive concept of McClure 2. It is also the principal difference between McClure 2 and the Patent. I do not believe that it would have been obvious to a person skilled in the art to abandon the key teaching of McClure 2 and instead have the collet moved by receiving the screw into a threaded aperture within the collet (the second member). Claim 1 does not lack inventive step over McClure 2."
"Even if a piece of prior art is old, the hypothesis is still that the skilled person will read it with care at the filing or priority date. If an obvious modification to the prior art would occur to the skilled person, such a modification is not taken out of consideration for inventive step solely because the skilled person would believe that modified or not, this old piece of prior art would have little practical or commercial use as of the filing or priority date."