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ISSUE 1 2014 MASCHIO & SOAMES IP LTD The situation is different if the consumable is no longer, or has never been, patent-protected. The original equipment manufacturer may then lose control over the supply of consumables and the resulting revenues. Various attempts have been made to cover such consumables indirectly through system and method claims in patents directed to improvements in the machines that use the consumables.
Thus, a patent to a new and inventive coffee machine feature may contain a claim directed to:
“A system comprising a coffee machine having [new and inventive feature], and a coffee capsule inserted in the brewing clamp of the machine.”
Or it may contain a claim to:
“A method of making a beverage comprising inserting a coffee capsule into the brewing clamp of a coffee machine having [new and inventive features], injecting hot water into the capsule, etc.”
The machines are, of course, dimensioned and configured to receive the specific non-patented consumables of interest. The hope is that the supply of consumables for use in the new machines will be deemed to be contributory infringement of the system and method claims under European Law. On the face of it, this approach seems reasonable. Contributory infringement is defined as supplying “means, relating o an essential element of the invention, for putting the invention into effect”. The means themselves do not need to be patented. The consumables configured to work in the inventive machines would appear to be just such a means, relating to an essential element of the invention, for putting the invention into effect.
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