Patents for diapers? Or a load of pants?

I reckon I've dealt with hundreds of nappies over the course of the last five years (I have a 4 year-old and a 1 year-old). At no point (perhaps due to the task at hand) did I stop to look at quite how much clever tech goes into making nappies. A recent patent case means that I'll probably pay more attention when nature calls!

You say diaper, I say nappy...

Both parties in this case produce machines for making nappies. Fameccanica had a patent on a nappy, and a process for making the nappy.

(Diagram created by the author of this blog)

The invention was all about the side vents (the holes in the areas 26a, 26b). In essence, there were three layers; an outer layer, a stretchable middle layer and an inner layer. The outer and inner layers were ultrasonically bonded to form vent holes. In doing so, the holes formed through the middle layer were larger than the bond sites. These doughnut-shaped "breathable passages" improved ventilation.

...let's call the whole thing off

The other party, Joa, did not like the look of this patent, and decided to try and invalidate it.

They claimed that the invention was not new or inventive. In particular, they had found an old patent application ("Coslett") for a material which had a similar three layer system.

In response, Fameccanica revised their patent to clarify the invention. They amended their claims to state that at the bond site, there were no holes in the inner and outer layers (only the middle layer).

It was up to the judge to decide whether the invention was new and inventive, and whether the amendments were allowable.

Clever doughnuts

The Coslett patent application, although it talked about ultrasonically bonding the outer layers through holes in the middle layer, did not mention the breathable passages. Therefore, the invention was undoubtedly new, because of these doughnut-shaped passages in the middle layer which improved ventilation.

The judge also decided that this was inventive as the use of the welding process to form doughnut-shaped passages to improve ventilation was not obvious.

Not-so-clever holes

The patent came unstuck when the judge looked at the amendment the patentee had made. In their claim, Fameccanica decided to state that the process did not create holes in the outer and inner layers. In other words, the claim was amended from the left-hand drawing, to the right below.

(Diagram created by the author of this blog)

It is a hard and fast rule of patent law that once you file an application for a patent, you can't add information to it. This would improve the position of the patentee to the detriment of third parties looking to understand what they can, and can't, make and sell.

The judge ruled that the original application disclosed a nappy in which vent holes were formed in all three layers. By amending the claim to state that the outer layers had no holes, the patentee was adding new information to the patent. Therefore, it was found to be invalid.

What can we learn from this?

Had it not been for the amendment, the patent would still be alive.

What it actually came down to was the court taking a different interpretation of the patent to the patentee. The court could have feasibly concluded that the drawing on the right (above) was what the patent was about all along. If they had done so, the amendment may have been OK.

The key lesson is to remember that the meaning of a patent or application can only be determined with an objective legal test. Fanmeccanica came unstuck here because they forced their own interpretation on the patent, which turned out to be different to what the court decided.