UK court makes concrete decision on infringement under doctrine of equivalents

In a recent case, Cloud Cycle Ltd v Verifi LLC, the Intellectual Property Enterprise Court held that Cloud Cycle’s concrete mixing system did not infringe Verifi’s patent, which relates to a method for calculating and reporting a property of concrete called “slump” in a concrete delivery truck.

This case is slightly unusual for two reasons: 

• Firstly, there were no issues of validity. 
  
• Secondly, the assessment of infringement was solely on the basis of the doctrine of equivalents, as introduced in the UK by the Supreme Court in its landmark judgment in Actavis v Eli Lilly [2017] UKSC 48. 

Background

The action was commenced by Cloud Cycle, who sought a declaration of non-infringement of patent EP (UK) 1 720 689 (the “Patent”) in respect of its concrete mixing system. The Patent is owned by Verifi, the first defendant, and exclusively licensed by GCP Applied Technologies, the second defendant. 

The Patent relates to systems for the calculation and reporting of “slump” (a measure of the consistency or workability of concrete before it sets) using sensors associated with a concrete mixing truck. These sensors measure the hydraulic pressure required to turn the mixing drum and the rotational speed of the mixing drum. 

Infringement 

As there was no allegation of infringement on the normal interpretation of claim 1, infringement was assessed entirely under the doctrine of equivalents. 

The judge, Recorder Douglas Campbell KC (sitting as a High Court Judge), began by addressing the inventive concept of the claim. While the parties put forward submissions as to the inventive concept, the judge did not fully adopt either side’s formulation. He considered that the inventive concept of claim 1 was a system to calculate slump performed according to the following steps: 

“a) compare the current pressure and speed measurements to previously stored values thereof; 
b) determine if the speed and pressure are stable 
c) do not use the stored values if the speed and pressure are not stable, 
d) store the current pressure and speed measurements 
e) repeat steps (a) to (d) until the system has been stable for long enough that a calculation can be performed 
f) and then calculate a current slump value using the stored pressure and speed…