Enforcement
We have seen that the effect of the patent is to give to the patentee the exclusive right to make, use, exercise, dispose of or import the invention. But, in reality, what does this mean? How is this right enforced — or, put differently, how is an infringement of the right measured?
That part of the complete specification known as the claims is where the protection is defined in a patent. Let’s look at the Kreepy Krauly main claim again.
A cleaning apparatus for automatically cleaning a surface submerged in a liquid, the apparatus including a cleaning head, having a peripheral region releasably engageable with the surface to be cleaned; two suction passages; in suction communication with the head through communication openings therein; and means for automatically transferring liquid flow through passages, from the head alternatively and repeatedly from one of the passages to the other.
The question in infringement is to determine whether a particular product has the qualities or features that are claimed; put differently, whether it has the nature and scope of the invention as claimed. Note: infringement is not determined by comparing, or even looking at, the patent owner’s actual product. It is what he has claimed in the patent that counts. The test consists of firstly dividing the claim into those features that are essential to the working of the invention as claimed. These are called the essential integers.
In a case where Chauvier alleged that the Baracuda automatic pool cleaner infringed the Kreepy Krauly patent, the Court determined that the essential integers for that claim (set out above) were the following:
- A cleaning apparatus for automatically cleaning a surface submerged in a liquid,
- the apparatus including a cleaning head,
- having a peripheral region releasably engageable with the surface to be cleaned,
- two suction passages,
- in suction communication with the head through communication openings therein,
- and means for automatically transferring liquid flow through passages,
- from the head alternatively and repeatedly from one of the passages to the other.
The test for infringement then continues: if the defendant’s product embodies (incorporates) every essential integer, then it infringes the claim. It does not matter that the defendant’s product has more or other features — if it incorporates the essential integers of the patented claim, it infringes. On the other hand, if just one integer is absent, there is no infringement.
As it turned out, the Baracuda pool cleaner was not an infringement. (That might explain why we have both Kreepy Krauly and Baracuda pool cleaners today.) The Court judged that there were no suction passages in the Baracuda cleaner as required (and contemplated) by integer (4). Yes, the water was sucked through passages, but the court said the way all the integers had to be interpreted was that the suction passages described in the claim were separate from the cleaning head. This is apparent from the way integer (5) reads, for example. The flow paths in the Baracuda were not separate from the head.
The drawing below shows the Baracuda cleaner; you can yourself compare the Kreepy Krauly’s suction passages (see numbers 14.1 and 14.2 in the drawing in The complete specification) with the Baracuda — the flow paths of the water around the flapper valve are clearly not the identified suction passages.
