Case No. EWHC-932-(IPEC)

63.Mr Lloyd’s evidence was that the cost of sales and administrative expenses are not dependent on the type of insert sold. Abbott complained that this was a mere assertion and not supported by any documentary evidence. That is true, but there was nothing in the evidence to suggest that the part of the business using non-infringing inserts was conducted in a way significantly different from the business in infringing inserts. I would find it surprising if it was.64.Abbott also pointed out that there was a difference in price between infringing and non-infringing inserts. Some of the non-infringing alternatives were cheaper, some more expensive. Therefore, given the same level of sales, the revenue generated would be different. If revenue were used to apportion overheads, the apportionment would have been different had there been no sales of infringing inserts. This again is true, but on the information I have I think Abbott was grinding the argument too fine. Some non-infringing alternative cost more, some cost less – this may have broadly evened out, at least sufficiently for a necessarily broad-brush account of profits.65.I think it is likely that a particular level of business by Design & Display in inserts and panels incurred the same overheads whether it was dealing with infringing or non-infringing inserts. The first criterion of the Court of Appeal is satisfied.