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Intellectual Property Law

: IPKat

Rapstrap

By Johanna Gibson, David Pearce, Jeremy Phillips and Ilanah Simon.

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The IPKat noticed with interest an opinion issued recently by the UK-IPO relating to an cable tie (pictured right) known by the name (and registered trade mark) 'Rapstrap'. Regular viewers of the BBC programme Dragons' Den may already be familiar with this name, as it relates to one of the programme's major success stories (see relevant clips from the BBC here), resulting in entrepreneur Andrew Harsley securing a Ł150k investment from Dragons Duncan Bannatyne and James Caan. Rapstrap Ltd then went on to secure an order in September 2008 for 1 billion units, amounting to Ł36M according to this report, in which Mr Harsley is quoted as saying, "When I first came up with the idea, I could not believe someone else hadn't thought of it".

Unfortunately for Mr Harsley, it turns out that someone had already thought of the idea, and at least once before. Bizarrely, it appears that this someone also goes by the name of Andrew Harsley, who is named as sole inventor on European patent EP0765281, issued in March 1999 to Millipede Cable Ties Limited. Now known as Millipede Marketing Limited (strangely, not a registered company according to Companies House), the patent proprietor requested an opinion under section 74A of the Patents Act 1977 regarding whether the Rapstrap product infringed claims 1 and 5 of the patent. Two relevant figures from the patent are shown below.

Claim 1 of the patent reads as follows:

"An integrally formed tie strip (10), made of a semi-rigid resiliently bendable material, comprising a series of unit cell portions (1) connected one to the next along the strip, each of the said unit cell portions (1) being formed to define at least one latch member (11) projecting laterally of the strip?s longitudinal axis, and to define an aperture (14) through the strip, characterised in that the aperture (14) of each unit cell portion (1) is bounded on at least one side by a spring portion (13) formed by parts (13) of the strip that extend transversely with respect to the said longitudinal axis, the spring portion (13) being resiliently deformable so as to enable the shape of the aperture (14) to be changed, wherein a first unit cell portion (1) of the strip can be passed through the aperture (14) of a second unit cell portion (1) of the strip so as to form a closed loop by way of the spring portion (13) of the first and/or second unit cell portion (1) being bendingly deformed such that the shape of the aperture (14) of the first and/or second unit cell portion (1) is respectively changed upon relative passage of the unit cell portions (1), and where the spring portion (13) of the first and /or the second unit cell portion (1) relaxes after said passage so that the at least one latch member (11) of the said first unit cell portion (1) inhibits withdrawal thereof from the aperture (14) of the said second cell portion."

The examiner found this claim to cover the Rapstrap in the form presented. Rapstrap Ltd, through their patent attorneys Agile IP, attempted to argue that interpreting the claim to cover their product would inevitably mean that it would be invalid over another much earlier patent, US 3,438,095 (figures 2 and 3 of which are shown below). The examiner rejected this argument because consideration of the validity of the patent would be beyond the scope of the opinion [the IPKat notes that this would not prevent another opinion being requested relating to the issue of validity].

The examiner then concluded that the Rapstrap tie fell within the scope of claims 1 and 5 of EP0765281, implying that it would infringe the patent.

The IPKat suspects that there is a lot more going on behind the scenes than is apparent on the surface of this opinion (which, as we all should know by now, is strictly non-binding and does not mean that Rapstrap will be now forced to pay damages or royalties to Millipede). He is quite surprised though that the Dragons chose to invest in someone who apparently had no control of a patent covering the product he was pitching, which he presumably would have known at the time the pitch was made. The IPKat further wonders what due diligence (if any) went on before the investment was made.

Update: Thanks to a commenter below, some background to the story can be found here.

Full post as published by IPKat on March 10, 2009 (boomark / email).