Claim No: IP-2023-000054 - [2025] EWHC 563 (IPEC)

There is a dispute as to the identity of the PSA in this case, although it appears to be common ground between the parties that the PSA is the same for both Patents. I will therefore focus on ‘509 for this purpose. It is important to note that neither party pleaded that the Patents were addressed to a PSA made up of a team of people.

The Claimant pleads that the PSA is “A lighting design engineer with 2 to 5 years’ experience with a focus of working in the field of exterior lighting. They would likely be an individual but could work within a team. They would have had a general awareness of public infrastructure lighting, but would not have any detailed knowledge of or experience working in public infrastructure such as bridges and railways.”

The Claimant’s pleaded case is generally supported by the Claimant’s expert, Mr Fisher, although is perhaps slightly narrower than his opinion in his first report. He opines that as the subject matter of the claims in issue is pathway lighting units, the person with an interest in devising the invention and putting it into practice would likely be a university degree-level educated product design engineer (but may be a mechanical engineer) employed within the product design team of a luminaire manufacturer with experience of exterior public infrastructure lighting and a general knowledge of designing lighting for various application spaces. In his opinion, which is slightly wider than the Claimant’s pleaded case, the PSA may have experience of designing products to light pathways or bridges but would not be a specialist in designing such products. Mr Fisher considers that they would have an understanding of anti-vandalism measures for consideration when designing an exterior luminaire, such as use of impact-resistant plastic rather than glass, and consideration of impact ratings for products in high-risk public areas, but he disagrees with the Defendant’s position that the PSA would have expertise in pedestrian safety, including anti-climb measures. He opines that the PSA would be “unlikely” to have considered the risk of lighting being used as a foothold and would not have considered anti-climb measures in the design and development of a luminaire for a walled pathway. In his second report, he said that specific railway regulations and guidance relied on by Mr Keay, said to set operational standards and technical procedures for the railways, were “simply not relevant in the field of a person designing and implementing lighting units, even those for use in public infrastructure settings”, and further notes that none of those make any reference to the use of anti-step features in lighting units. Mr Fisher was asked in cross-examination if they were not relevant because he considered the PSA would not be interested in such measures, or doesn’t care about them, or thinks they don’t matter, or simply ignores them. He said that “at the point of designing it would not be clear that was the intended or sole application and so he would not have designed for that environment” and for that reason, in his view, anti-climb features would not form part of the remit.

In his oral evidence he shifted his opinion slightly, and fairly in my judgment, by saying that the PSA would have considered such matters, and designed with such standards in mind, if they were presented to him in a specification or brief for the design of a custom lighting support. In his opinion, the PSA would either have to go and look up the regulations or he would have to bring someone with specific railway safety expertise into the design team, like Mr Keay’s PSA.

The Defendant does not plead to the PSA, but wrote to the Claimant on 4 June 2024 stating that it was “an individual with expertise in pedestrian safety and anti-vandalism measures in public spaces. This person would have knowledge and experience of public infrastructure projects concerning the development of bridges and walkways.” The Claimant treated this letter as a statement of the Defendant’s case as to the PSA at trial. The Defendant’s expert, Mr Keay, opines that the PSA is “someone with an interest in items (such as handrails and lights) that were suitable for safe use on publicly accessible infrastructure such as at railway stations.” He says that he is “entirely comfortable” that he can place himself in the shoes of such a person. Mr Keay further defines the PSA with someone with good knowledge of the relevant regulations and guidelines concerned with public safety referred to in his report, including those addressing the use of certain anti-climb measures, and would be highly motivated to work within the relevant statutory framework. His PSA may have an engineering background but would not necessarily have to have such a formal qualification.

In his oral evidence Mr Keay said that at the Priority Date, the PSA would be somebody working for the infrastructure team at Railtrack, the then owner of the UK network infrastructure, or one of Railtrack’s then maintenance contractors, such as Carillion, or a safety inspector. In cross-examination, he said that at that time, in order to install a lighting support or fixture, a person in the infrastructure team (often the PSA) would carry out a risk assessment to satisfy himself that the risks at that location are as low as reasonably practicable, which would include assessing the previous history of the site, any existing mitigations, etc to determine if there is a climbing risk. If there is, they would come up with measures suitable to control the risks of the operation. His evidence in cross-examination was that in the risk assessment, all the applicable standards and regulations that pertained to the proposed installation would be defined, and cross-checked. He said that the significant findings of that risk assessment and proposed light fittings would be, inter alia, included on a form which was required to be provided to Network Rail “in all applications where lighting to [non-station footbridges and non-mainline station] footbridges is required”, pursuant to a technical user manual NR/CIV/TUM/400 revision A of April 2008. If they were required to be notified in other instances, I was not told about them.

Mr Keay’s opinion in his second report is that Mr Fisher’s approach is not credible. He notes:

“…passenger safety was a primary and fundamental concern on the railways at the priority date, and remains so. Preventing climbing in high-risk areas such as passenger footbridges was a key priority. It would have been a futile exercise for a lighting designer to create products for this market which did not contain safety features, because potential clients would not have purchased them.

The types of anti-climb measures that I have set out in my Report were in place on many public installations and were therefore widely known as a matter of public (i.e. not necessarily specialist) knowledge. As the Court will appreciate, many of these measures are largely a matter of common sense. I would therefore expect a lighting product engineer with any experience of working on public infrastructure to know that pedestrian safety and anti-climb measures were of paramount importance to products intended for this market and would therefore have been familiar with the measures that had been employed…”.