Dragon’s Den nightmare

Two Dragons Bannatyne and Caan may well be counting the costs of their recent investments after a recent investment on the show. The product was in relation to an invention called RAPSTRAP which resulted in an entrepreneur Andrew Harsley securing a 150k investment. As a consequence the company RAPSTRAP LIMITED secured an order for 1 billion units. Mr Harsley was obviously delighted and he believed he had sole rights to the invention. The invention related to a cable tie. However all was not as it seems. A company Millipede Marketing Limited sought an opinion from the Comptroller at the UK Intellectual Property Office claiming that the Rapstrap patent infringed its European patent EP0765281B1. This patent relates to a cable tie in which an end unit is threaded through the aperture of another unit to form a closed loop for securing cables. The Rapstrap product is a thin flexible multi-cell cable tie in which the cells can fold over and curl around their longitudinal axis during a threading operation to form a loop in the form of Redstrap. The infringement relies on establishing that the Rapstrap has the features as specified in claims 1-5. Harsley argued that his cable tie did not have a feature which corresponds tot he spring portion as required by the patent.

If the product falls within the scope of claims 1 then it is necessary to follow the procedures as claim construction as set out in Kirin Amgen and others v Hoescht Marion Roussel Limited and others 2005 RPC 9. It is necessary to put a purposive construction on the claims; interpret them in the light of the description and drawings as required by section 125(1) of the Patents Act 1077 and the Protocol to Article 69 of the EPC. Putting it simply the key question is whether a person skilled in the art would have understood the patentee to have used the language of the claim to mean. In this instance Rapstrap was found to fall within the claims and therefore was infringing the cited patent.

While the decision is not binding it is a useful indication that the product is infringing and if they continued to sell they would be infringing the patent and liable for significant damages. So the dragons need to be more careful and do their due diligence.

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