Traditionally, purchasers of patented products in the UK have thought that they have a "right to repair" the goods they buy, even where the repairs are extensive. In Schütz v Werit [2011] EWCA Civ 303, the English Court of Appeal rejected this approach.
Schütz had European patents protecting intermediate bulk containers (IBC) having a removable plastic inner bottle fitted into an outer protective cage. Werit were selling their own bottles to Delta, who fitted them into Schütz cages, and then sold the "cross-bottled" final product to fillers in competition with Schütz.
The High Court had decided that these activities did not infringe the patents which claimed the the total container. Although only a part of the claimed product, the lower court determined that it was the cages which embodied the inventive concept, and found no infringement as Werit were not making cages.
Giving the judgment of the Court of Appeal, Jacob LJ noted that it was an infringement to "make a ... product which is the subject-matter of the patent".
As a result, Jacob LJ determined that the question in the case is:
"The upshot is simply this: does the act of putting a bottle into a Schütz cage, constitute "making a product which is the subject-matter of the patent"..."
The judge noted that in this case the product, namely the IBC, ceased to exist when the bottle is removed. What remained was the cage, namely an important component from which a new IBC could be made. The judge concluded that any additional "whole inventive concept" test was excluded and that any perceived "right of repair" did not exist if it led, as in this case, to the making of a new product in accordance with the patent claims.
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