Apparatus for simulating flames, the apparatus comprising a source of light, simulated flame effect means for reflecting said light to simulate flames, simulated fuel means to simulate a bed of combusting fuel, and screen means on which to view an image of the simulated flames, said screen means being positioned between said flame effect means and said simulated fuel means, said screen means being capable of diffusely transmitting light reflected by said flame effect means and also being capable of reflecting light from said simulated fuel means so that the simulated flames appear to emanate between the simulated fuel means and an image of the latter means reflected in said screen means.
The primary Judge introduced a qualification that does not appear in the claims, namely that the flame effect means does not ‘substantially rely upon’ or ‘involve to any significant degree’ a process involving light directly emitted from, rather than reflected from, the light source. The claims do not exclude the presence of light additional to the reflected light, so long as the apparatus possesses the means for reflecting light to simulate flames. Bitech accepts that a de minimis contribution by reflected light would not be sufficient to satisfy the claimed integer, but that was not the primary Judge’s finding. The primary Judge observed ... that about half the viewing screen was occupied across its full width by the images sourced from reflected light, even though the images created by directly emitted light were found in the centre area of the viewing screen, were brighter and fuller than the other images and dominated the flame effect.
Fundamental to Garth Living’s submissions on fair basis is an analysis centred on the proposition that neither the specification nor claim 1 refers to a source of direct light. The submission seems to be that if there is infringement by a flame effect means that utilises reflected light and also direct light, the specification must disclose or describe that additional integer. That is simply not the requirement for fair basis.
Claims can extend beyond the scope of preferred embodiments. The skilled addressee would not read the specification as imposing serial restrictions or limitations on the invention. The specification describes different preferred ways in which integers of the invention can be made to maximise the solution to the different problems of the prior art. Those are reflected in the dependent claims.CONCLUSION
In summary, the Full Court found that Bitech's patent is valid, and infringed by the respondents. The decision confirms established law regarding the interpretation of patent claims for infringement purposes, and of the analysis for fair basis.