Laid- flat form
40 Counsel for Clorox accepted that in order to consider infringement a bag must be considered in the laid-flat form but contended that this could encompass a laid-flat three-dimensional form. In my view the concession as to the laid-flat form was correctly made. The language of the relevant claims, as set out above, is ambiguous when considered in isolation. The terms chosen by the patentee to describe the monopoly cannot be properly understood without reference to the specification as a whole. In particular, unless the bags are arranged in a laid-flat form, it is not sensible to refer to the front and rear panels of the bag or to the sides of the bag (whether straight or otherwise) or even to discuss the shape of the fourth side of the bag. To consider the bags in any other form or arrangement would be to deprive the essential integers of the invention of any content. While, as previously mentioned, a clear and unambiguous claim must not be varied or qualified by statements in the remainder of the specification, in the present context the language chosen is difficult to comprehend without reference to the description of the invention contained in the body of the specification. Thus, in my opinion the relevant claims each import a requirement that the language used is to be understood in light of the invention being in the laid-flat form. This does no more than give effect to the language chosen by the patentee and does not expand or narrow the relevant claims.
41 At the hearing, the parties provided a number of examples of the various ways in which a bag could be laid flat and the permutations in display options possible because of the inherent characteristics of plastic bags. While these demonstrations were, in the main, directed to demonstrating that the Hercules Bag either did or did not infringe the claims, the demonstrations also revealed the respective constructions placed on the phrase 'laid-flat form'.
42 Mr Hess, in various demonstrations for the Court, submitted that the laid-flat form could involve laying a bag flat and then tensioning each of the edges (or sides) of a bag in order to demonstrate that the longitudinal sides were straight. In my view, the claims do not permit this. The patentee has chosen to import into the relevant claims a requirement that the language of the claims be assessed as if the bag under consideration is in the laid-flat condition. There are good reasons for such an approach. As Mr Caine submitted, there must be a constant way in which allegedly infringing products are to be assessed. However, this does not allow a bag to be laid flat and manipulated in any way.
43 The term 'lay' is defined in the Macquarie Dictionary (revised third edition) as relevantly meaning:
'1. to put or place in a position of rest or recumbency: to lay a book on a desk. … 5. to smooth down or make even: to lay the nap of cloth. … 8. to place, set, or cause to be in a particular situation, state, or condition: to lay hands on a thing. … 20. to place on or over a surface, as paint; cover or spread with something else. …'
44 For my mind, the term 'lay' does not, in the present context, connote the pressing down, manipulating or altering of the bag when laying it down flat. The term must be given its ordinary meaning and this, in my opinion, requires that the bag is to be laid out on the relevant surface and then considered without any further manipulation.
45 However, the specification imports into the relevant claims not simply that the bag be laid down, but that it be laid down flat. 'Flat' is defined in the same dictionary to mean:
'1. level, even, or without inequalities of surface, as land, etc. 2. horizontally level: a flat roof. 3. comparatively lacking in protection or depression of surface: a broad flat face. … 5. lying at full length, as a person. 6. lying wholly on or against something: a ladder flat against a wall. 7. thrown down, laid low, or level with the ground, as fallen trees or buildings. … 9. having a generally level shape or appearance; not deep or thick: a flat plate. … 12. spread out, as an unrolled map, the open hand, etc. … 33. a flat surface, side or part of anything: the flat of a blade, the flat of the hand. 34. flat or level ground; a flat area. …'
46 The term 'flat' has a variety of meanings which makes it difficult to provide a simple, ordinary meaning and resort must be had to the context in which the term is used. In my view, in the present context the term 'flat' must mean wholly or substantially level and spread out. Thus, the 'laid-flat' form imported into the claims requires that a bag be put or placed wholly or substantially level and spread out against the relevant surface. I do not take this to mean that every surface of the bag needs to touch the relevant surface, or that the bag should be pressed against the surface or manipulated in any way. For instance, a person may accurately be described as lying flat on their back on the ground even though the back of their neck is likely not to be actually touching the surface. In this sense I accept that the laid-flat form can encompass a three-dimensional form.
47 In addition, given the nature of the claimed products and the language adopted by the patentee, it cannot be the case that infringement can be determined by reference to more than one form; it needs to be a uniform and constant form. To permit otherwise would be to place any competitor in a situation where they did not have a reliable basis for determining the scope of the claimed monopoly and would be contrary to the very foundation upon which the monopoly is granted: see [18] above. In my view, the laid-flat form adopted by the relevant claims is that contained in Figures 1 and 2 in the specification. The description of these illustrations in the specification gives context and meaning to the unusual language used in the claims described above at [33]. Further, the United States patents together form the prior art base: see [8] above. As Mr Caine submitted, the prior art represented the background to the lexicon of the patentee. As he noted, each of the United States patents presents or describes the bag the subject of the patent by reference to the bag when it is in a flattened condition. Thus, the claims import a requirement that an allegedly infringing product is to be considered in a laid-flat form where the product is, subject to the opening of the top (or fourth) side, ready to be used in its intended manner; that is, as a refuse bag for the purpose of storing and/or transporting material such as garbage or refuse prior to collection or transport to disposal. In my view, this is not to limit the claims impermissibly by reference to the preferred embodiment. Rather, it elucidates the equivocal language of the claims by reference to the form of the bag in the preferred embodiment. To adopt this approach is not to alter or limit the essential integers contained in each of the relevant claims but instead to determine the form in which an allegedly infringing product is to be assessed to establish whether it possesses each of the essential integers.