22 November 2021

Solution to the previous challenge
Moustache guard, J.H. McConnell, patented on Oct. 29, 1912 (found using Espacenet).

The IBC of Theseus - Philosophy and Patents


Fig.1: EPO0734967

In honour of World Philosophy Day on 18 November, we invite you to stroke your beards - whether imaginary or not - and ponder the relationship between philosophy and patents.

"The ship wherein Theseus and the youth of Athens returned from Crete had thirty oars, and was preserved by the Athenians down even to the time of Demetrius Phalereus, for they took away the old planks as they decayed, putting in new and stronger timber in their places, insomuch that this ship became a standing example among the philosophers, for the logical question of things that grow; one side holding that the ship remained the same, and the other contending that it was not the same."

If you were a philosopher living in the late first century, you might have been among the lucky few pondering the above paradox. The thought experiment is believed to be based on the story of infamous Greek hero Theseus, whose ship was kept in a museum after battle. Time took its toll on the ship. Its wooden planks began to rot and eventually they all had to be replaced. And with that, philosophers began to do what philosophers do best: ponder. With these replacement planks, was the ship still the same object, or had it suddenly become something new?

At this point you might be thinking, "Nice story, but what does this have to do with patent knowledge?"

Well... Back in 2008, Schütz, a German manufacturer of intermediate bulk containers (IBCs) (pictured above) and licensee of patent number EP0734967, sued Werit, a British manufacturer, for patent infringement. Because the plastic bottles in IBCs have a shorter lifespan than the steel cages, a third party, Delta, had taken Schütz-manufactured IBCs, replaced the original plastic bottles with Werit-manufactured ones and proceeded to sell these hybrid IBCs on the market.

In its defence, Werit argued that merely replacing the plastic bottles did not count as "making" the patented IBCs - just as some philosophers had argued all those centuries ago that replacing the wooden planks in Theseus' ship meant it was no longer the same ship. If replacing the bottles did not amount to "making" the patented object, then of course Werit would not - and could not - be held liable.

Much like philosophers' opinions on the paradox, decisions on the case varied. The UK High Court found no patent infringement as it held that the inventiveness of the object came from the cage and not the bottle. The UK Court of Appeal reasoned that replacing any part in a patented object entailed "making" it, and the German Federal Court of Justice decided that it was crucial to understand whether the market thought that replacing the plastic bottles implied "making" the IBC. Ultimately, the UK Supreme Court concluded that replacing the bottles did not amount to "making" the patented object.

So, there you have it - an ancient paradox applied to a modern patent dispute and an excellent example of how patent knowledge can be made philosophical.

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