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On appeal from: [2011] EWCA Civ 303, [2011] EWCA Civ 1337

Werit, the appellant company, sold bottles that formed part of a large container for liquids, to a reconditioner that replaced the bottle part of the container. The respondent argued that this cross-bottling activity amounted to an infringement of the patent for the container as it constituted “mak[ing]” the product without the consent of the patentee, contrary to the Patents Act 1977, s 60(1)(a).

The appeal was unanimously allowed. The Supreme Court held that the word “makes” does not have a precise meaning, and must be interpreted contextually by reference to the facts of the particular case. There is a general need to protect the patentee’s monopoly whilst not stifling reasonable competition. Although it may sometimes be useful to consider whether the alleged infringer is repairing rather than making the article, it is important to avoid simply contrasting “making” and “repairing” as these concepts may overlap.

In the present matter the bottle was held to be a freestanding, replaceable component of the patented article that had no connection with the inventive concept.

For judgment, please download: [2013] UKSC 16
For Court’s press summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII