From coffee capsules to spray cans, the difficulty of relying on a staple product defence to infringement before the UK courts

In the recent decision of the UK Intellectual Property Enterprise Court in No Climb Products limited v Gas Safe Europe Limited (full copy of the decision available via this link: No Climb Products Ltd v Gas Safe Europe Ltd [2026] EWHC 908 (IPEC) (22 April 2026)), the judge needed to consider infringement of a claim covering a form of apparatus for testing a gas or smoke detector requiring both a spray container and a moveable spacer member whereby the apparatus is relatively compact when not in use but a minimum distance is maintained between the spray outlet and detector when testing is underway. The defendant (‘Gas Safe’) was held to infringe a valid claim by supply of its testing product ‘DetectaReach’® consisting of an aerosol spray can and a separable spacer.

Gas Safe also enabled buyers of its DetectaReach product to buy replacement aerosol cans (‘DetectaSmoke’® containers) for that product. The judge thus went on to consider infringement by such filled container supply under Section 60(2) of the UK Patents Act.

The requirements of that subsection were held to be clearly met, this being reinforced by the wording which appears on DetectaSmoke containers explicitly specifying: “For use with the DetectaReach® reusable delivery system.” Hence, Gas Safe attempted to rely on argument under Section 60(3) UKPA that nevertheless such cans qualify as a staple commercial product and thereby their supply avoids infringement.

In this respect filled spray cans might be viewed as comparable with coffee capsules for use in Nespresso® coffee machines as previously considered before the UK High Court in Nestec v Dualit [2013]. Supply of such capsules by Dualit was held not to be excused from infringement as supply of a staple commercial product on the basis that the capsules have no use other than with a limited range of coffee machines (although infringement under Section 60(2) UKPA was rejected on the basis that purchasers of Nespresso machines nevertheless have in effect an implied licence to use any compatible capsules). Against this background, Gas Safe argued that DetectaSmoke cans need not be used with a spacer and that when used in that way they are articles which fall in the prior art. The judge regarded such argument as wrongly suggesting that, in effect, if a product cannot infringe under s.60(1) because it forms part of the prior art, it automatically qualifies as a staple product. Rather he noted as of especial relevance that DetectaSmoke cans have a single intended use as a replacement part and commented as follows:

– As to what a staple commercial product is, it is not hard to envisage that a product such as, say, sugar qualifies. Sugar is used all the time for a wide range of intended purposes. Nails collectively in all forms would probably be a staple commercial product although in practice, like most industrial products, nails come in a variety of types and if a specific variety of nail were to be considered the position may become more nuanced. Moving along the spectrum from sugar, there may be products less frequently used for a narrower range of purposes which also fall within the definition. DetectaSmoke containers do not. They have a single intended use, namely to test smoke or gas detectors. I acknowledge Mr Johnson’s evidence that containers of that type can be filled with other material and used for other purposes but empty containers are not relevant to the point in issue. Gas Safe has no defence under s.60(3).

Practice points

This case highlights again that where an inventive product requires a replaceable part liable to attract significant separate sales, then a product claim reciting the presence of that part may be commercially highly useful even if the part itself cannot be claimed. Unless the part has uses going beyond the technical field of note, i.e. is akin to a nail of common use rather than a coffee capsule or spray can required for a specific type of product, then the UK judgment in No climb v Gas Safe illustrates the difficulty of arguing a s.60(3) infringement defence.

The same decision is more fully reported in the May 2026 CIPA Journal: May 2026 – CIPA