CLASS 99
The blog for design law, in Europe and worldwide. This weblog is written by a team of design experts and fans. To contribute, or join us, or for any other reason, email class99@marques.org.
Want to receive Class 99 by email?
Click here subscribe for free.
Click here subscribe for free.
Who we all are...
MONDAY, 31 OCTOBER 2011
Dyson v Vax - Court of Appeal clarifies
We covered the first instance judgment in Dyson v Vax here. The appeal judgment has just issued (Dyson Ltd v Vax Ltd [2011] EWCA Civ 1206 (27 October 2011)), and we are pleased to see that Sir Robin Jacob has been able to spare a little more time for guidance on designs.
On the main issue, the Court of Appeal found that Arnold J had been entitled to reach the conclusion that there was no infringement - he had made no error of principle. His rather controversial findings on functionality (following the OHIM Lindner Chaff cutters decision R 690/2007-3 discussed here) form no part of the appeal judgment, since his first instance decision does not rest on them - he found the Dyson design non-functional even on his test.
The points we found of interest were, firstly, a retraction of Sir Robin's (obiter) remarks on Recital 13 of the Design Directive 98/71 in Procter & Gamble v Recikitt Benckiser. The difference in wording he had analysed appears to have been sloppy drafting (according to Alex von Mühlendahl in Design Protection in Europe, 3rd Edn. (2009 at pp.232-3).
Secondly, another review of the position on expert evidence. Anyone running a design case should read this carefully. According to Sir Robin, "It is highly desirable in a registered (or indeed unregistered) design action that, if permission to give expert evidence is to be given at all, the precise ambit of that evidence should be defined. This was the procedure adopted in the present case by order of Arnold J who heard the Case Management Conference. The expert should be told what question or questions he is addressing and confine himself to these. The same is often true in other cases: left to their own devices experts all too often address questions of their own choosing."
Jackson LJ (who should know, if anyone does) added that "It is anticipated that next year CPR Part 35 will be amended in a number of respects. One amendment will require a party, on a permission application for expert evidence, to specify the issues which the expert will address. Another amendment will encourage, but not compel, any court giving permission for expert evidence to specify the issues which the experts should address. Courts already have the power to limit and focus expert evidence. If they do so more often (which I hope will be the effect of the forthcoming rule amendments) substantial costs will be saved."
Finally, a minor point on how to treat colour representations of a design: "Although these are in colour it is common ground that the colour (of both the registration and the alleged infringement) should be ignored for the purposes of considering the scope of registration. This is because the statement of novelty says: "The features of the design for which novelty is claimed reside in the shape and configuration applied to the article as shown in the representations." In order to obviate any risk that colour might enter into the comparison, the physical articles we compared were spray painted grey all over (including those parts visible through the clear dust collecting bins)." Posted by: David Musker @ 14.13
Tags: appeal, colour, dyson, expert, litigation uk, overall impression, samples, vacuum cleaners, vax,
Perm-A-Link: https://www.marques.org/blogs/class99?XID=BHA281
Dyson v Vax - Court of Appeal clarifies
On the main issue, the Court of Appeal found that Arnold J had been entitled to reach the conclusion that there was no infringement - he had made no error of principle. His rather controversial findings on functionality (following the OHIM Lindner Chaff cutters decision R 690/2007-3 discussed here) form no part of the appeal judgment, since his first instance decision does not rest on them - he found the Dyson design non-functional even on his test.
The points we found of interest were, firstly, a retraction of Sir Robin's (obiter) remarks on Recital 13 of the Design Directive 98/71 in Procter & Gamble v Recikitt Benckiser. The difference in wording he had analysed appears to have been sloppy drafting (according to Alex von Mühlendahl in Design Protection in Europe, 3rd Edn. (2009 at pp.232-3).
Secondly, another review of the position on expert evidence. Anyone running a design case should read this carefully. According to Sir Robin, "It is highly desirable in a registered (or indeed unregistered) design action that, if permission to give expert evidence is to be given at all, the precise ambit of that evidence should be defined. This was the procedure adopted in the present case by order of Arnold J who heard the Case Management Conference. The expert should be told what question or questions he is addressing and confine himself to these. The same is often true in other cases: left to their own devices experts all too often address questions of their own choosing."
Jackson LJ (who should know, if anyone does) added that "It is anticipated that next year CPR Part 35 will be amended in a number of respects. One amendment will require a party, on a permission application for expert evidence, to specify the issues which the expert will address. Another amendment will encourage, but not compel, any court giving permission for expert evidence to specify the issues which the experts should address. Courts already have the power to limit and focus expert evidence. If they do so more often (which I hope will be the effect of the forthcoming rule amendments) substantial costs will be saved."
Finally, a minor point on how to treat colour representations of a design: "Although these are in colour it is common ground that the colour (of both the registration and the alleged infringement) should be ignored for the purposes of considering the scope of registration. This is because the statement of novelty says: "The features of the design for which novelty is claimed reside in the shape and configuration applied to the article as shown in the representations." In order to obviate any risk that colour might enter into the comparison, the physical articles we compared were spray painted grey all over (including those parts visible through the clear dust collecting bins)." Posted by: David Musker @ 14.13
Tags: appeal, colour, dyson, expert, litigation uk, overall impression, samples, vacuum cleaners, vax,
Perm-A-Link: https://www.marques.org/blogs/class99?XID=BHA281
MARQUES does not guarantee the accuracy of the information in this blog. The views are those of the individual contributors and do not necessarily reflect those of MARQUES. Seek professional advice before action on any information included here.
The Class 99 Archive
