Case Comment

Firth Industries v.

citation(s): (1977) R.P.C. 213, as per Stephen, J.

copyright 1997 Donald M. Cameron, Aird & Berlis




The Decision

At p. 218

"Each of the method claims incorporates reference to the covering of the pile of compost "with a substantially air and/or water proof cover for airing or curing", this is an integral step in the claimed methods. Now the infringement of these method claims which is alleged is not that the defendants themselves employed those methods but that they advised and procured others to do so by selling infringing bins together with instruction folders as to their use. Assuming that this amounts to infringement, a matter open to some doubt (see Innes v. Short [1898] 15 R.P.C. 449 and compare Townsend v. Howarth [1875] 12 Ch. D. 830 [n]; Adhesive Dry Mounting Co. Ltd. v. Trapp & Co. [1910] 27 R.P.C. 341 per Parker, J. at 353, and Walker v. Alemite Corp. [1933] A.L.R. 437; 49 C.L.R. 643 per Dixon, J. at 658), the evidence does not establish that anyone has in fact, on the advice of the defendants, undertaken that step, prescribed in the method claims which is involved in covering the pile of compost with a cover for airing or curing. Indeed the defendants' written instructions issued to purchasers of their bins do not prescribe such a course; all that is said in this regard, in the course of quite lengthy instructions for use, is that if the composting material is not needed immediately or is insufficiently cured it should be wrapped in black polythene. It is curious feature of this case that the plaintiffs' own quite elaborate instruction pamphlet is entirely silent concerning this integral step in the method claims, as are the various affidavits filed on behalf of the plaintiffs and which describe the use of the bin, in accordance with the plaintiffs' pamphlet, as entirely satisfactory."


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