Summary judgments: when experts can be dispensed with

In Nampak Plastics Europe Ltd v Alpla UK Ltd [2014] EWHC 2196 (Pat), a 3 July 2014 Patents Court, England and Wales, decision of Mr Justice Birss, some useful light was cast on the availability of summary injunctive relief in low-tech patent litigation.

This action involved an application for summary judgment where Alpla was seeking a declaration that a redesigned bottle did not infringe Nampak's patent for a plastic milk bottle, after Nampak --a manufacturer of moulded plastic milk bottles -- had commenced infringement proceedings against it. Having produced its modified design, Alpla invoked the commercial need for certainty at an early stage and sought summary judgment on the declaration.

According to Birss J, while although summary judgment was unusual in patent cases because claim construction and infringement determination generally required expert evidence, where a patent owner seeks to resist summary judgment he must give specific details as to issues where expert evidence would be required, since general assertions would not suffice. In this case, this patent was sufficiently simple for there to be no call for expert evidence: its claims did not use terms of art.  Accordingly the court could proceed to construe the claims.  On the facts, those claims would not be infringed by the redesigned bottle, so summary judgment on the application for a declaration of non-infringement would be granted.