This recently decided case concerns a patent owned by Rapid Action Packaging Limited (RAP) for a carton to hold sandwiches. RAP is a UK company which specialises in providing packaging to the food industry in Europe. The case concerned UK Patent No 2,397,593 “Improvements in or relating to cartons for sandwiches or like foodstuff” and the invention is illustrated below (Fig 13 from patent).
An application to revoke this patent was submitted by Nampak Cartons Limited (Nampak). Nampak is also a packaging organisation, in food and other sectors, which is headquartered in South Africa but has a large European presence including manufacturing sites for cartons in UK, the Netherlands and Belgium.
RAP amended the patent following the attack and the claims have been narrowed to “a sandwich carton with a lid that can be bonded to the flanges by heat sealing, and that is adapted to be torn open by means of Concora cuts made in the flange of the carton. When a carton according to the invention is opened, the flange of the carton delaminates, with part of the flange material remaining bonded to the lid”.
The “Concora” method of providing tear strips is an arrangement that involves making two parallel lines of partial sever (often called microcuts) into the paperboard packaging. When the packaging is torn apart, the microcuts allow the paperboard material between the two lines to delaminate.
The Hearing Officer at the UK Patent Office concluded that the inventive concept is a cardboard sandwich carton with dual parallel lines of partial cut along the flanges, one being at the junction between the flange and the wall adjacent to the inside face of the lid and the other being part way across and on the other side of the flange so that the flanges can be split (i.e. delaminate between the cuts) to allow the lid to be opened. He turned down the application by Nampak for revocation of the patent. Nampak bought an appeal against this decision on the basis that the Hearing Officer failed to have due regard to expert evidence; failed to apply common knowledge and failure to construe the claims of an earlier patent when determining whether RAP's patent was for an invention that lacked an inventive step.
The decision to overturn the appeal was issued on 18 June 2010 where the judge (Floyd J) gave a reminder that an appeal hearing is not a rehearing, and that the temptation for the appeal judge to hear the case afresh for himself has to be resisted.
Nampak Cartons Ltd v Rapid Action Packaging Ltd  EWHC 1458 (Pat).