The Leonardis invention
(i) The previous art
4 The patent is entitled "Building Foundation Form Work Arrangement". As that title suggests, the invention is concerned with building foundations. Prior to 1986, usual practice in relation to the provision of a stable building foundation involved excavation of trenches, placement of reinforcing rods and mesh in and over the trenches and the pouring of concrete. However, this method was labour intensive and expensive. Moreover, foundations so produced were susceptible to instability in expansive soils, such as the clay soils of Adelaide, which shrink and swell according to changes in their moisture content.
5 In 1986, an engineer, Peter Koukourou, applied for a patent for a kind of building foundation suitable for use in such soils. This was granted as standard patent No 584769.
6 Mr Koukourou's invention involved levelling the supporting ground and placing a number of hollow boxes in rows on the ground so that a grid of intersecting channels was formed between them. The boxes were usually made of stiff waterproof cardboard containing internal baffles for strength. An alternative proposal was for a rigid polymer foam, but in practice cardboard boxes have been used. Concrete blocks ("Celtex bricks") would then be placed at intervals between the boxes to maintain their separation into rows. Reinforcing rods would be laid on the concrete blocks along the rows and would intersect at right angles with each other. Spacers for holding reinforcing bars would be placed on top of the boxes and a mesh of reinforcing rods rested on them. Concrete would then be poured over the whole assembly to cover it, and so form a foundation comprising a reinforced slab with intersecting reinforcing beams under it.
7 The idea of a slab of concrete with integral concrete beams in a grid formation on its underside, made by placing void formers of various types on a level supporting surface and pouring concrete over the top, has been well known since the beginning of the twentieth century. Such slabs, called waffle slabs, have commonly been used as floors in buildings. Mr Koukourou's invention involved their use as a raft for the footings for a building.
(ii) The nature of the Leonardis' invention
8 The Leonardis invention involved an advance on the use of concrete blocks as spacers between the cardboard boxes. Spacers are necessary because concrete poured in a channel on one side of a cardboard box would press against, and deform, the box if there were no equivalent material on the opposite side. This lateral pressure might be aggravated by the vibration conventionally used in concrete pourers to ensure consistency of composition.
9 Mr Leonardis contended that concrete blocks are unnecessary; cardboard boxes can withstand the lateral pressures if held in place, near their corners, by a different type of spacer. The Leonardis spacer, like the concrete block, sits on the bottom of the channel defined by the cardboard boxes. It is, in essence, a framework which holds in place pairs of vertical plates set at right angles to each other. The plates fit over the corners of adjacent cardboard boxes and hold them in place relative to each other. The spacer is described thus in the complete specification:
"The invention … can be said to reside in a building foundation formwork arrangement in which a plurality of cardboard boxes are located on a supporting level surface, and are kept apart to leave channels between each side of each of the boxes by spacers within the channels between the boxes, at least one spacer engaging against both sides adjoining a corner of a first box, and at the same time against both sides adjoining a corner of a second box adjacent to the first box."
By engaging against both sides of a corner of a first box and at the same time against both sides of the corner of the second box adjacent to the first where the two boxes are defining a channel, the spacer is said to provide "substantive resistance to …distortional pressures".
10 The specification mentioned a particular problem encountered where a concrete block is located midway between the corners of the same box, and if the width of that block defines the channel width. In such a situation the use of the concrete block could result in a localised weakening at the interface of the foundation concrete and the block. Fracturing at the interface, although not necessarily structurally dangerous, could allow water to reach the steel reinforcing rods in the concrete by way of capillary action.
"This can be avoided by ensuring that concrete for the foundation extends to form an integral portion of concrete below the main body of any spacer. This is achieved by providing that each spacer, while having a substantially large outermost engaging surface to bear against the side of a box, nonetheless has frame members which have a lowermost edge which are [sic] substantially above a lowermost edge of such outermost engaging surface and as such above any supporting ground level surface. In this way, much concrete is allowed to flow and set below such frame members thereby maintaining as much as possible the structural integrity of the concrete."
11 The invention was illustrated in the patent specification by a series of figures. Figure 1 is a plan view showing a typical building foundation formwork arrangement incorporating the invention. Figure 3 is a spacer, as incorporated within channels at a crossing over location, and where four corners of adjacent boxes meet at a common location. These two figures are reproduced at the end of these reasons.
(iii) The claims in the specification
12 Claims 1 and 6 are the dominant claims in the patent specification. Williams J noted that counsel were content to argue the case by reference only to them. They were in the following terms:
"1. A building foundation form work arrangement in which a plurality of boxes are located on a supporting level surface and are kept apart to leave channels between each side of each of the boxes by spacers within the channels between the boxes, at least one spacer engaging against both sides adjoining a corner of a first box and at the same time against both sides adjoining a corner of a second box adjacent the first box, the arrangement being further characterised in that the spacer includes outermost planar surfaces engaging against the sides of respective adjacent boxes and frame members holding such outermost engaging surfaces which frame members have a lowermost edge which is substantially above the supporting level surface.
…
6. A spacer for a building foundation form work arrangement wherein a plurality of boxes are located in spaced apart relationship to define there between channels, the spacer including outermost engaging surfaces adapted to engage against both sides adjoining a corner of a first box, and at the same time against both sides adjoining a corner of at least a second box adjacent the first box, the spacer being characterised in that each of the outer most engaging surfaces is held by a frame member extending between at least one other of the outermost engaging surfaces each of the frame members having a lowermost surface which is substantially above a lowermost edge of each of the engaging surfaces such that concrete can extend continuously beneath each of the frame members."
13 Although he considered the point was not free from doubt, Williams J held that claim 1 should be regarded as a method (or process) claim and claim 6 as a product claim. He said:
"Claim 6 is with respect to a spacer. However, the spacer described in Claim 6 does not have the same necessary characteristics as that described in Claim 1."
The appellants dispute the correctness of the second sentence in this statement.
The earlier litigation
14 Mr Leonardis was granted a petty patent for "improvements relating to foundation formwork" on 23 June 1987. The petty patent had a priority date of 23 October 1986 and expired on 23 October 1992. Mr Leonardis alleged the petty patent was infringed by Sartas No 1 Pty Ltd ("Sartas"), during its currency but after 30 April 1991. Mr Leonardis also alleged Sartas infringed his standard patent - that is No 591816, the subject of the present proceeding.
15 Sartas responded to those allegations by instituting an action, pursuant to s 128 of the Patents Act 1990, in which it claimed that Leonardis (and also Koukourou & Partners Pty Ltd) had made unjustified threats: see Sartas No 1 Pty Ltd v Koukourou & Partners Pty Ltd (1994) 30 IPR 479.
16 Insofar as it concerned the Koukourou patent, the proceeding was dismissed with no order as to costs. However, it continued as between Sartas and Leonardis. Sartas asserted that both the petty patent and the standard patent were invalid. Leonardis cross-claimed, asserting that Sartas had infringed both patents. The proceeding was heard by Gummow J. Sartas succeeded. Gummow J revoked the standard patent and declared the petty patent bad for obviousness. He held that a number of the claims (7 to 15) in the standard patent were not fairly based on the relevant provisional specifications, which were the first and second provisional specifications read together, and were invalid by reason of anticipation. Claims 1 to 6 inclusive, which were concerned with broadly claimed building formworks, and two method claims (16 and 17) were held invalid for obviousness.
17 Gummow J also found, in any event, that the Sartas spacer did not infringe the claims of the patent. It was an essential integer of the relevant claim (number 12) that the lower most surface of the components of the framework ("frame members"), holding the vertical plates or "engaging surfaces", be so substantially above the engaging surface of the spacer as to enable concrete to flow continuously below the frame members. This feature was lacking in the Sartas spacer.
18 Mr Leonardis appealed against the orders made by Gummow J. The appeal was partially successful: see Leonardis v Sartas No 1 Pty Ltd (1996) 67 FCR 126. A Full Federal Court (Burchett, Hill and Tamberlin JJ) held the first and second provisional specifications did provide a fair basis for the claims in question. The Court rejected a notice of contention that the claims it found to be fairly based were invalid for obviousness. The Full Court did not interfere with the findings by Gummow J against claims 1 to 6 and 16 and 17, that they were invalid for obviousness.
19 The patent was subsequently amended. The surviving claims were re-numbered 1 to 13.
The present proceeding
20 The present proceeding was commenced in the Supreme Court of South Australia, on 3 March 1993, as an action for infringement of the patent. Initially the only defendants were Theta and RBS. However, three other defendants were subsequently added: Podfix, Mr St Alban and Mr Beales. Mr St Alban is a director of RBS and Podfix. Mr Beales is a director of Theta and Podfix. Mr St Alban and Mr Beales respectively control the day to day operations of RBS and Theta. They jointly control the day to day operations of Podfix. It was alleged that they authorised, or made themselves party to, the acts of infringement by virtue of their control over the activities of one or more of the corporate defendants.
21 The defendants in the South Australian proceeding pleaded, by way of defence, the invalidity of the Leonardis patent; but they initially made no cross-claim for revocation. The learned trial judge directed that certain questions going to liability should be determined before other issues. Mr and Ms Leonardis contended that three spacers infringed the patent. They were called, respectively "Podfix 1", "Podfix 2" and "the Bottom Cover Spacer". Williams J found all three products contained all the essential integers of the patent. He published reasons to that effect on 23 November 2000 but did not then enter judgment.
22 On 21 December 2000, the defendants obtained the primary judge's leave to amend their counterclaim, so as to seek a declaration that the patent was invalid and an order that it be revoked. They accepted they were unable to obtain that relief before Williams J, in the light of the decision of the Full Federal Court in Sartas. However, they wished to reserve their right to pursue the question elsewhere.
23 Williams J considered what orders ought to be made. On 19 April 2001 he published additional reasons for judgment and made a number of orders and declarations. He declared that, by manufacture and sale of the spacers, each of the three present appellants had infringed the patent. He enjoined any further infringement and made an order for delivery up for destruction of certain material. He dismissed the plaintiff's claims against Mr St Alban and Mr Beales. His Honour adjourned the plaintiffs' application for damages or an account of profits. He entered judgment for the plaintiffs on the counterclaim.
24 Theta, RBS and Podfix appealed to this Court against these orders and declarations. Their Notice of Appeal contended that Williams J should have held the patent invalid and liable to be revoked and that he had erred in finding infringement. However, the claim of invalidity was not pressed before us.
25 Mr and Ms Leonardis filed a Notice of Cross Appeal and Notice of Contention in which they claimed Williams J erred in dismissing the claims against Mr St Alban and Mr Beales and also in respect of two rulings he had made contrary to their submissions.
The trial judge's findings on infringement
26 In that section of his reasons for judgment in which Williams J described the three alleged infringing items he referred also to an Ezyline product called "Podlock". This product was said to be an embodiment of the invention appearing in the patent drawings. That may or may not be so. However, as his Honour observed, "the relevant comparison is between the terms of the patent and the accused spacers". In our view, no useful purpose was served by introducing Podlock into a discussion about similarities between the appellants' spacers and the claims made in the patent. If Podlock is a faithful embodiment of the patent drawings, the reference to it was an unnecessary distraction. To the extent it may depart from the drawings, the reference was a potential source of error. However, comparisons with Podlock were introduced. There would be a danger of distorting his Honour's views if we were entirely to eliminate them in quoting his findings.
27 Williams J dealt first with Podfix 2. He said at paras 27-31:
"Podfix 2 (Exhibit P3) has been in use since early 1993 and is still in use. There are two versions of Podfix 2. One has a circular centre and the other has a cruciform centre with a consequential difference in the way in which the protruding tabs or fins are developed. It is not suggested that this difference has any relevance to the issues in the case. The arguments can be applied to either arrangement.
The embodiment of the Leonardis' invention as set out in the patent diagrams contains a concept without physical measurements. However, the general dimensions of the Leonardis' Podlock spacer (Exhibit P2) on the one hand and Podfix 1 and Podfix 2 on the other hand are very similar. No doubt this is largely dictated by the common function in a standard building application which the products perform. For example, in the ordinary course, a spacer (to replace the Celtex brick) must fit into and maintain a formwork channel 110mm in width).
By way of introduction it is convenient to observe the general configuration of Podfix 2 alongside the plaintiffs' spacer as appears from Figure 3 of Appendix A. To the eye of a lay person each spacer appears to be constructed around a square frame having a pair of jaws set into the frame at each of the four corners of the square. (Neither the patent nor the engineering witnesses use these terms. The jaws are the 'outmost planar surfaces' or 'outermost engaging surfaces' described in the claims. The engineers describe as the 'orthogonal members' the components of the frame which I identify as forming a square). According to the patent the 'engaging surfaces' (of the jaws) are 'of substantial cross sectional area each being preferably 55mm wide and 55mm high'. This description is generally consistent with Exhibit P2 and Exhibit P3. The jaws are held in position by two groups of small beams or frame members. The orthogonal members which I have already mentioned are to be distinguished from the diagonal members which traverse the structure at 45 degrees to the orthogonals. Whether the diagonals in Exhibit P3 should be regarded as creating two beams or four beams is at issue.
In the plaintiffs' product Podlock (Exhibit P2) the lower faces of the orthogonal beams and the diagonal beams ('frame elements') are in fact elevated more than 20mm above the underlying surface when the spacer sits on that level surface or 'deck'. (The largest stone aggregate commonly used in domestic footings is 20mm). However, the claim in the plaintiffs' patent makes no mention of the height of the beam (or frame member) above the deck as being critical in terms of any particular measurement. The patent speaks of the beams being raised 'significantly' or 'substantially' and explains this by reference to concrete flow so as to allow concrete to set below. With a knowledge of building practice (in terms of composition of concrete) it is not difficult to identify the advantage to be gained by elevating the beam sufficiently high to allow the largest particles of standard coarse aggregate to pass beneath a beam. The patent itself does not mention aggregate sizes. I make the observation that the clearance below the beams of Podlock (Exhibit P2) is approximately 35mm. To the extent that the beams in Podfix 2 (Exhibit P3) are elevated, the clearance is only 14mm or thereabouts.
The upper surface of the beams or frame elements in Podfix 2 are considerably below the level of the highest point of the jaws. In the patent diagram (Fig 3) and in Podlock, a characteristic can be observed which is described in the body of the patent specification as follows:
'The respective frame members [marked 30 on the diagram] have an upper surface which lies flush with the upper surface [marked 32 on the diagram] of the surface typically at [24 on the diagram]'.
This characteristic (which I will refer to as 'complete elevation of the upper surfaces of the beams') is absent from Podfix 2." (Original emphasis)
28 His Honour then embarked on a detailed statement of the differences and similarities between Podfix 2 and Podlock. He concluded at paras 33-35:
"After considering the evidence and arguments of counsel, I conclude that Podfix 2 will perform the same task as Podlock although Podfix 2 will be less efficient. It is argued for the defendants that the skirts and fins of Podfix 2 provide supplementary ground support for the beams which is not to be found in Podlock. However, whether Podlock has any unidentified structural weakness might depend upon how it is manufactured. I remind myself that I am required to compare Podfix 2 with the patent although an examination of Podlock (Exhibit P2) is helpful. It is not to be assumed that Podlock will always be manufactured with beams of the size or mass in Exhibit P2 or indeed with any particular specific dimension.
Podfix 2 is designed so that one standard product can be cut up 'on the job' to meet the design variations needed to fit the junctions of channels and channel ends as well as the standard intersection of channels. On the other hand Podlock provides separate articles for each of these applications. In this respect Podfix 2 claims an advantage (which the plaintiffs would treat as irrelevant to the issues in the case).
The points of particular importance are that Podfix 2 has skirts on the orthogonals and it has central fins or tabs extending to about 4 mm above the ground. These items will impede locally the free flow and continuity of concrete. The raised diagonal beams on Podfix 2 (with clearance below them of 14mm) will allow concrete matrix to extend continuously beneath the beams where raised although the presence of the beam (by reason of its limited height) will provide an obstruction to the passage of the larger pieces of coarse aggregate."
29 It is convenient to say immediately that Dr A Bennett SC, who appeared with Mr S Burley and Mr M Darke of counsel for the appellants, did not dispute that Podfix 2 and Podlock perform the same task. She said the critical point is that mentioned in the final paragraph of the quoted passage: the effect of the design of Podfix 2 on the free flow and continuity of concrete.
30 Williams J described Podfix 1 in these terms:
"Podfix 1 (Exhibit P4) does not have skirts on its orthogonal members. In all other respects as now relevant it is the same as Podfix 2. The height (or ground clearance) of the lower surface of the raised frame members (orthogonal and diagonal) is common. Upon my examination I conclude that this clearance is approximately the same in Podfix 1 as it is in Podfix 2. Exhibit P4 has an x-shaped arrangement of tabs or fins at the bottom of its central turret so as to reproduce in this respect one version of Podfix 2 as abovementioned. In Exhibit P4 the elevation of the fin by about 4 mm is apparent. In this respect it is different from the side view of the spacer shown in Appendix C hereto; in that latter case the drawing shows the bottom of the fin as extending down to line up with the bottom of the spacer. However, a clearance of only 4 mm may not show up on such a drawing."
Appendix C is a reproduction of a sheet in a sales brochure.
31 In relation to the bottom cover spacer, Williams J said at paras 37-42:
"This design in terms of diagrammatic representation is contained in Appendix B hereto. The representations respectively entitled top perspective view, the bottom perspective view, the side view and the bottom view are of particular interest. The design is incorporated into Exhibit P5.
In a sales brochure issued by the second defendant (RBS) there is an illustration of this item shown in the bottom perspective view.
The accompanying marketing documentation indicates that the spacer is intended for use in the Waffle Raft Footing System as patented by Koukourou and Partners Pty Ltd (Australian Patent No.584769). (The defendants argue against this construction of the marketing brochure).
In this application of the bottom cover spacer, the orthogonal and diagonal frame members are elevated. When so used the spacer is capable of holding the form work boxes apart and the clearance created under the frame by the elevation of the frame members (namely a clearance of 14mm or thereabouts) will allow concrete to pass without obstruction; 'continuity' in the concrete will then be achieved. The combined surface area of the "jaws" of the bottom cover spacer is only about two thirds the area proposed in the Leonardis patent so as to 'grip' the cardboard boxes. There is an argument as to the effect of this difference.
When the spacer is positioned as shown in the top perspective view (as abovementioned) then the relevant surface of all frame members (orthogonal and diagonal) will be flush with the underlying supporting ground surface. If one studies Appendix B (and Exhibit P5) each of the members there shown (whether orthogonal or diagonal) will impede concrete flow when the spacer is set up as in the top perspective view. For the purpose of this examination the 'bottom perspective view' should be treated as functionally relevant bearing in mind the application of the spacer in the manner shown in the advertising or sales brochure.
The plaintiffs complain that as shown on the sales brochure the bottom cover spacer infringes the Leonardis patent." (Original emphasis)
32 As this passage indicates, there was (and is) an issue between the parties as to the intended use of the product described as "bottom cover spacer". The appellants contended it was never intended to be used, and has never been marketed for use, in connection with building foundation work. Williams J did not resolve that issue.
33 Williams J drew on the engineering evidence in order to make findings about two matters. First, he found that an elevation of 14mm was sufficient to allow the flow of concrete beneath the frame members of the spacers, notwithstanding that not all aggregate used for concrete was less than 14mm in size. The evidence established that the usual maximum size of coarse aggregate used in foundation footings is 20mm. However, Williams J thought 14mm was sufficient to answer the requirement that the frame members be "substantially" elevated above the surface upon which the spacer stood. This conclusion is disputed by the present appellants.
34 Second, Williams J considered the meaning of the word "adjacent" in claims 1 and 6. He thought it extended to boxes placed diagonally to each other, as well as boxes in the same line. This construction of the claims was not challenged before us.
35 After stating the issues and dealing with the question whether claim 1 was a product or process claim, Williams J stated his findings on infringement. He did so in section 9 of his first reasons for judgment that he headed "Identification (in pith and marrow) of the essential integers of the patent claims in the accused spacers".
"An essential integer of Claim 6 is that each of the frame members has a lowermost surface which is substantially above a lowermost edge of each of the engaging surfaces ... There is no dispute that the orthogonal members in Podfix 2 are 'frame members' and do not have the clearance necessary so that concrete can extend continuously beneath each of the frame members. Accordingly Podfix 2 lacks an essential integer of Claim 6."
However, it is my view that Podfix 1 and also the bottom cover spacer (when used in the configuration shown in the sales brochure) contain all integers of Claim 6. The clearance below each of the frame members (both orthogonal and diagonal) is sufficient to allow the concrete to extend continuously beneath each of the frame members … even though the largest 20mm pieces of aggregate will not be able to pass (assuming that this size aggregate is used).
The outer most engaging surfaces (ie the faces of the jaws) in the case of the Bottom Cover Spacer are considerably smaller in area than the preferred specification mentioned in the patent (5.5 cms wide and 5.5 cms high). The jaws on the bottom cover spacer (Exhibit P5.) are about 30mm in height compared with a height of about 50mm in the case of Podfix 1. (The length of the jaws of Podfix are about the same as in the Bottom Cover Spacer ie approximately 68 mm). I do not consider that this matters. In my opinion the jaws of the bottom cover spacer would appear to have "engaging surfaces adopted to engage against both sides adjoining a corner" (of a box) and have characteristics corresponding to all integers of Claim 6 when the bottom cover spacer is used in the manner shown in the marketing brochure (Exhibit D10).
The use of Podfix 2 … in my opinion contains all the integers of the invention described in Claim 1. Unlike Claim 6, the spacer described in Claim 1 has 'frame members holding such outermost engaging surfaces which frame members have a lowermost edge which is substantially above the supporting level surface'. It is sufficient for the purposes of Claim 1 that some frame members are elevated, whereas in Claim 6 each of the frame members is required to be elevated. I note that in its body the patent refers to the spacer as having 'frame members' as described in Claim 1 without any requirement for each or all the frame members to have this characteristic. The patent drawings show all the frame members (including the orthogonals) as substantially elevated. Being the 'preferred embodiment' it is not surprising that this is so because any obstruction would create an inefficiency. However, I consider that the change in language as between Claim 1 and Claim 6 ('frame members' as opposed to 'each of the frame members') is a deliberate choice so as to achieve a different outcome in each case in terms of the identification of the essential integers of the claims. …
…
Although Podfix 2 has orthogonal beams which by virtue of their skirts do not meet the criteria of Claim 1, its diagonal beams are sufficient to bring Podfix 2 within the integer because some of the frames of Podfix 2 are substantially elevated so that the concrete matrix may pass beneath the beams.
…
In the result the exploitation of each of the three accused spacers will infringe claims in the patent. Podfix 2 infringes only the method Claim 1. Podfix 1 and the Bottom Cover Spacer infringe the product Claim 6 as well as the method Claim 1." (Our emphasis)
36 In section 10 of his first reasons for judgment, Williams J dealt with the conduct of the corporate defendants in relation to marketing the spacers. No challenge is made to that part of his Honour's findings.
37 In section 11 of his reasons, Williams J considered whether s 117 of the Patents Act applied to the defendants' distribution of Podfix 2. He concluded that, upon the evidence, a primary use of Podfix 2 was as a foundation formwork spacer, a use that would infringe claim 1 of the patent; accordingly, it was appropriate to grant an injunction quia timet notwithstanding there may be a non-infringing application for which it is suitable.
38 Williams J then turned to the liability of the personal defendants. He said:
"In my opinion the facts are insufficient upon the balance of probabilities to establish liability on the part of the personal defendants. As there is more than one person involved in the overall operation giving rise to the conduct pointing to infringement, it is not possible to sheet home an individual responsibility. To what extent the fourth and fifth defendants have each played a part is unclear particularly with regard to the production of the sales brochure. I am not satisfied that any particular individual personally directed the acts of infringement or by his conduct made himself party to such acts.
The personal defendants are not in partnership so as to be liable for torts of each other committed in the course of the partnership business.
They are individually directors of two separate companies and they are common directors of a third company (Podfix Ltd). Even if all corporate defendants have committed acts amounting to patent infringement (as I consider to be the case) it may be that one of the personal defendants left the detailed decision making (as now relevant) to the other or to some employed person. Beyond knowledge of the legal ability of the personal defendants to exercise control I know little else. In my view there is before me insufficient information as to the degree of individual personal involvement of the fourth and fifth defendants to establish upon the balance of probabilities that either of them was party to the infringement by the corporate defendants. It may be that one or other of them or someone else produced the brochure and conducted the marketing. The defendants together and to some extent individually were able to exercise control but the manner and extent to which they did so is unknown.
The links between the two personal defendants are strong as are their links with the corporate defendants. I note the position of Mr Beales as Sales Manager and I note the effect of the correspondence.
The personal defendants have not given evidence. Although this might make it easier to draw an inference the material is insufficient to establish liability. The claim against the personal defendants fails."
39 Finally, the learned judge dealt with the dependent claims. He concluded that the relevant exploitation of Podfix 2 infringes claims 2 and 3 in addition to claim 1, that exploitation of Podfix 1 infringes claims 2 and 3, as well as 1; and 7, 8 and 9, as well as 6. He held the bottom cover spacer infringed only claims 1 and 6; not any of the dependent claims.