UK court decides milk bottle patent case without trial
UK courts have the power to dispose of all or part of a case without a trial if there is no real prospect of success. In a decision upheld by the Court of Appeal, the defendant in the patent case of Nampak Plastics Europe Limited and Alpha UK Limited has successfully made use of these powers, receiving a favourable declaration of non-infringement from the High Court without the need for a trial.


Nampak and Alpla are rivals in the plastic milk bottle business. Nampak contends that Alpla’s bottle, referred to as ECO 1, infringes its GB patent. Alpla denies infringement and contends that the patent is invalid. There is to be a trial on these issues in January 2015.

In the meantime, Alpla applied to Nampak for a declaration that a proposed bottle design (ECO 2), which has not been launched, does not infringe Nampak’s patent. Nampak did not provide the requested declaration. Alpla therefore applied to the High Court for a summary judgment (a decision without a trial) providing a declaration that the ECO 2 design does not infringe Nampak’s patent.

Summary judgments

Summary judgments are only given where there is no real prospect of success for one of the parties and there are no other compelling reasons why the case should go to trial.

Summary judgments are rarely made in patent cases. This is due to the requirement that the court views the patent claims and the alleged infringement through the eyes of the skilled person in the relevant technical field. In order to do this with confidence, the court will usually require a trial so as to hear expert evidence regarding the common general knowledge of the skilled person.

Experts not required

In the present case, Nampak’s patent claims described the shape of the milk bottle using ordinary English words with no special or technical meanings. The contentious issue related to the position of the boundary between the sides and the corners of the ECO 2 design, since this determined whether ECO 2 design fulfilled the requirements of Nampak’s patent claim.

The High Court considered a summary judgment suitable in this instance due to the simple nature of the technology, the lack of technical terms in the claim, and Nampak’s inability to specify how further evidence might impact the High Court’s interpretation of the claim. Therefore, the High Court was in as good a position as it could be to decide on the matter. After interpreting the patent’s claims in light of the specification, the High Court concluded that Alpla’s ECO 2 design did not infringe the patent. Therefore, the High Court was able to make a declaration that the ECO 2 design does not infringe Nampak’s patent without the need for a trial.

In reviewing the High Court’s decision, the Court of Appeal noted that it also could not see anything credible emerging at trial, from experts or otherwise, that could alter its interpretation of this straightforward patent. The decision was therefore upheld.


Alpla’s successful pursuit of a summary judgment has given it the commercial certainty that the ECO 2 design does not infringe without the need to wait for a trial. Although this is a rare example of the UK courts deciding on a patent case without a trial, it does demonstrate the viability of this approach for patent cases where the technology is simple. It also demonstrates that patent cases are not immune from summary judgments. Therefore, justified reasons for conducting a trial must be given if an opposing party has made an application for a summary judgment in its favour.

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