ON 15 January, a groundbreaking High Court ruling established that commercial success in the marketplace could be taken into account when determining patent ownership.
In 1990, Hertfordshire housewife and mother-of-three, Mandy Haberman pioneered an invention for spill-proof children's trainer cups.
In 1995, the Anywayup Cup was initially produced on a shoe-string budget, and by 1998 it had become such a runaway success, that 60,000 a week were selling in high street stores such as Safeway and Tesco.
But in July 1998, sales of the Anywayup Cup plummeted. The reason, it was claimed in court, was the launch of the Super Seal Cup under Jackel International's famous child product brand name, Tommee Tippee.
It was at this stage that a patent action began, which IP specialist litigator, Margaret Tofalides – of Paisner & Co, who acted for Haberman – says has laid down important new IP guidelines for the future.
The Anywayup Cup, produced by V&A Marketing, which was also involved in the recent High Court battle, has even been selected as a Millennium product by the UK Design Council, for being among the best and most innovative products to be designed and produced in this country.
It was argued successfully on behalf of Haberman that Jackel had copied the patented non-spill valve which had won the Anywayup Cup its huge success. Jackel, however, challenged the validity of the patent on the grounds that it was "obvious". It claimed that nothing in the technology involved in Haberman's valve was outside normal workshop modifications, and that its operating principles had been known of for a long time.
But Jackel's argument was rejected by Mr Justice Laddie. He held that although Haberman, in the light of existing devices, had only taken a small and simple step – it had been an effective one, and had been sufficiently inventive to deserve the grant of a patent monopoly.
Tofalides says she considers that one of the most important aspects of the judge's decision was that he found that commercial success could be relied upon in determining whether the patent was valid.
She says: "He [Laddie] found there was evidence of success which had to be gauged against the background of a long-felt want for a spill-proof product in the industry sector. For many years there has been a search for a spill-proof trainer cup, and Haberman's invention had solved the problem. This is an important point."
In reaching his decision, the judge said he considered the success of Haberman's Anywayup Cup had been "remarkable" and he took this into account in upholding her patent.
Tofalides adds: "At a time when the Government is stressing the importance of innovation and individual enterprise, it is vital that the resulting creativity is adequately safeguarded if an inventive culture is to be maintained in the UK. This case demonstrates how small companies can successfully protect its creativity – however powerful its competitor."
Haberman told The Lawyer: "The whole legal process of challenging a company the size of Jackel International has been a daunting task for myself and V&A Marketing, which is a very small company.
"I believed that the grant of a patent fully protected my product. It was horrendous to discover that Tommee Tippee had infringed my patent, and that it was able to question the validity of my patent in court. Fortunately, to my relief, the action has been successful. I hope this result gives confidence to other small inventors who find themselves commercially challenged by large companies."
Jackel International has been granted leave to appeal against the decision, and has only three weeks to fulfil existing orders.
Haberman and V&A Marketing have been granted an injunction preventing further infringement, and have been awarded damages and costs.