IP-2024-000061 - [2025] EWHC 1936 (IPEC)

The principal disagreement between the parties regarding the CGK was whether BlackTrax or an equivalent system on the market at the priority date would have formed part of the skilled team’s CGK.

Battlekart’s foremost point was that Mr Viant had never heard of any of these systems. This does not come as a surprise. Mr Viant has no experience in the sort of tracking, lighting and software coordination needed for live entertainments. His world of XR has been confined to simulated experiences in an aircraft cockpit or in a medical context. He said that he knows about video games but admitted that he has never created one. He has no experience of amusement parks or the immersive entertainment industry outside his knowledge of video games. None of the projects Mr Viant has been involved in would have engaged any interest in a system like BlackTrax. Mr Viant’s lack of knowledge of BlackTrax and equivalent tools does not rule out their being part of the CGK.

Mr Densham, of course, is very familiar indeed with BlackTrax and to a large though lesser extent, equivalent systems. It does not follow that any of them would have formed part of the skilled team’s CGK. But such systems would undoubtedly have been useful to a skilled team with knowledge of the problems of projected lighting, tracking and coordinating software. On the evidence I have, Mr Densham is likely to have the more reliable idea of whether the skilled team would have known about any of the three tracking systems, especially BlackTrax.

Battlekart said that BlackTrax only became available three years before the priority date. That gets Battlekart nowhere without evidence that in those three years it was a niche product known to few. This was not Mr Densham’s evidence.

Battlekart pointed out that Mr Densham did not state the number of sales of BlackTrax or equivalent systems or to whom the systems were advertised. That is correct but Mr Densham’s evidence in chief was that the systems formed part of the relevant CGK as he understood that to be. He fully maintained this in cross-examination and was not shown to have misunderstood the meaning of CGK in law.

Mr Viant was asked about the following passage in Mr Densham’s second report:

Mr Viant said that he had absolutely no reason to dispute that passage.

Battlekart submitted that even if BlackTrax and equivalent systems were known by the skilled team to exist, the evidence did not show that the team would have appreciated that such a system could be used to improve the experience of conventional karting. Reasons for this assertion were given.

The first was that the evidence did not show any use of BlackTrax outside the entertainment industry save for one instance if its use at the opening of the Rotterdam container terminal.

The hypothesis as I have found it to be is that the skilled team, with its CGK as discussed above was contemplating improvements to the experience of conventional karting. The prior art, which I will come to, would have led the team to consider the sort of lighting projection, tracking and coordination that is used in the entertainment industry These are made simpler for anyone in that industry by BlackTrax and similar systems. As indicated above, Mr Viant did not dispute that any park developer or live entertainment producer in the UK would have known about BlackTrax.

Mr Densham accepted that apart from the use of BlackTrax in Rotterdam and an example of its use to track motorbikes in a show, both before the priority date, there had been no public demonstration of using BlackTrax to track moving objects travelling at up to 30mph. Battlekart submitted that in neither case was there a driver of a moving object who was given partial control of the moving object.

That is correct, although Mr Densham’s examples showed that BlackTrax could probably be used to track karts driven by players around a track, at the least up to an unknown speed. The skilled team would have known that BlackTrax may or may not have provided the whole solution to the task prompted by the prior art but even if not, it would have been of considerable assistance and there was no reason to dismiss the use of BlackTrax on that ground.

I find that the skilled team would not only have known about BlackTrax and the two equivalent tracking systems at the priority date, the team would also have believed that any one of them would prove a useful tool in the task of improving a karting experience. The team would have tried using a tracking system of that kind expecting it to be helpful.