The Court of Appeal in W L Gore & Associates GMBH v Geox SPA  EWCA Civ 794, 29 July 2009 upheld a decision of Floyd J from last year. Floyd found that both patents for breathable waterproof shoes were valid but he declared non infringment only in one of them. Floyd escaped any criticism but instead the appeal court agreed that it was the patentee’s description of the product which was to blame as they were too general.
As is often the case in patent litigation the case turned entirely on the true construction of the main claims of the respective patents and of course seeking that the court determine what the person skilled in the art would have understood the patentee to have been using.
Jacob LJ stated that it would be better to spell out in detail first a particular and specific product or process (possibly with reference to a sample) and then to itemise. He said:-
“In future it may be better to spell out in detail first a particular and specific product or process (possibly also by reference to a sample if one exists) and then to itemise separately and clearly each possible variant in respect of which the party concerned wants a declaration. If an individual variant has within it a range or range of possibilities their limits should be clearly spelt out. Use of a word such as “generally” is likely to add fuzziness and may result in a refusal of a declaration. Quite apart from anything else, if this manner of drafting is followed and it later turns out that a particular variant may infringe it may still be possible to grant a declaration of non-infringement in respect of the specific embodiment described and perhaps in respect of some other specified variations – in effect blue-pencilling the variant which might infringe”.