Design & Display Ltd v Ooo Abbott & Anor [2016] EWCA Civ 95
This was an appeal of a decision in an account of profits following a successful claim for infringement of a patent for a display panel used in shops made up of ’slatted panel’ and ’snap-in’ aluminium inserts. At the account HHJ Hacon sitting in the IPEC decided that (a) the scope of the profit derived from the defendant’s infringement extended to the profits made from sales of slatted panel in which infringing inserts were incorporated and (b) the defendants had not satisfied the evidential burden that it was entitled to make any of the deductions which it sought to make from gross profits.
The Court of Appeal allowed the appeal, holding that the judge had made errors in reaching his decision on both issues. On the issue of the scope of the account, the judge should have asked himself how much of the profit on the sale of the slatted panel was derived from the infringement. On the issue of deductible costs, the judge was wrong to require that the defendant proved that it was running to maximum capacity. Feeling unable to assess the profits on the basis of the facts found by the judge, the Court of Appeal remitted the case to the IPEC.
Hugo Cuddigan QC and Chris Aikens appeared for the respondents.