The UK Court of Appeal has upheld a decision of the UK Patent Court where Mr Justice Birss gave summary judgment in an action for a declaration of non-infringement (Nampak Plastics Europe Ltd v Alpha UK Ltd 2014 EWHC 2196 (Pat)). The case, involving rivals in the plastic milk bottle business, saw the claimant Nampak Plastics Europe Limited bringing an action against Alpla UK Limited alleging infringement of its patent for a plastic milk container (ECO1). Alpla, denying infringement, produced a modified bottle (ECO2) and brought a claim for a declaration of non-infringement under Section 71 of the 1977 Patents Act and subsequently sought summary judgment from the court, which was granted.

Summary judgment is typical in cases where the defendant has no real prospect of successfully defending the claim or issue before the court, with the evidential burden resting with the applicant.  Generally, given the technical nature of patent cases summary judgments are not common place, however, Birss J noted that this does not mean that a patentee can resist an application of this kind purely by asserting a need for introducing expert evidence.  He stated that a patentee "needs to explain with at least some specificity what fact or what expert evidence or what common general knowledge is to be relied on".

The Court of Appeal unanimously upheld the decision commenting that the evidence of an expert in plastic milk bottle production could not conceivably assist.  The matter was heard without delay so as not to disrupt the trial preparation for the infringement action, in respect of ECO1, which is expected to start in January 2015.