Case No. EWHC-932-(IPEC)

ngFetter Lane, London, EC4A 1NLBefore : HIS HONOUR JUDGE HACON Between : Chris Aikens (instructed by Gordons Partnership LLP) for the ClaimantsTom St Quintin (instructed by Appleyard Lees IP LLP) for the DefendantsHearing date: 1 March 2017Judgment Judge Hacon : Introduction 1.In a judgment dated 24 February 2016, [2016] EWCA Civ 95, the Court of Appeal allowed an appeal against an order made by me dated 16 October 2014, in which I assessed sums due to the claimants (collectively referred to as “Abbott”). This followed the trial of an account of profits and my judgment of 4 September 2014, [2014] EWHC 2924 (IPEC) (“the first account judgment”).2.Earlier HHJ Birss QC had found that Abbott’s European Patent (UK) No. 1 816 931 (“the Patent”) was valid and had been infringed by the defendants, see judgment of 30 May 2013, [2013] EWPCC 27.3.The Patent claimed a display panel of the type used to display goods in shops. The important part of the invention concerns inserts made of a resilient metal, typically aluminium. The inserts are located into horizontal slots cut into the panels. Shelves or hangars for displaying goods are supported by the inserts.4.Abbott settled their case against the second defendant and so the trial on the account concerned only the first defendant (“Design & Display”).5.The Order of the Court of Appeal on 24 February 2016 included this:“2. The Account of profits be remitted to the Intellectual Property Enterprise Court for determination of the following issues:(a)What proportion of sales of slatted panel sold together with infringing inserts should be included within the Appellant’s account of profits?(b)What deductions (if any) for general overheads may the Appellant make in its account of profits?” The background facts 6.Lewison LJ quoted from my description of Design & Display’s business:“[5] Design & Display manufactures and sells retail equipment, including display panels for use in shops. … [Its] primary business was as a joiner for shopfitters, making bespoke items of shop furniture, … called ‘equipment’. This equipment included displays, some of which had slatted panels (sometimes referred to as slatboards or slatwalls) sold both in standard sizes and as custom-sized panels. These were the panels with horizontal slots into which the aluminium inserts could be introduced – in the case of the infringing inserts, introduced by a snap-in process. Shelves or hangars for displaying the goods could then by located into the inserts.[6] In the relevant period Design & Display sold the slatted panels in two ways. First, it sold the panels with inserts separately for subsequent assembly by the customer. At the trial these were referred to as ‘unincorporated’ panels and inserts. Secondly, Design & Display sold pre-assembled displays of which the panels with inserts were part. These were referred to as ‘incorporated’ panels and inserts. In addition, some unincorporated inserts were sold without slatted panels.[7] Design & Display did not itself make the inserts but purchased them from an aluminium extruder in the form of lengths which were cut into sections to make the individual inserts. The panels were purchased in the form of plain MDF panels into which the slots were machined by Design & Display.” Profits due to Abbott on Design & Display’s sale of panels