Abbott & Anor v Design & Display Ltd & Anor
Decision date: 26 April 2017
Neutral citation: [2017] EWHC 932 (IPEC)
Overall AI summary confidence: high
Short overview
This short overview is intended to summarise the case, issues and outcome so far as they are supported by the judgment.
AI confidence in this short overview: high
This IPEC remitted two issues after findings of patent validity and infringement concerning Abbott's patent for snap‑in resilient‑metal inserts: (1) what proportion of Design & Display's panel sales incorporating or sold with infringing inserts must be included in Abbott's account of profits, and (2) what proportion of general overheads may be deducted. The judge identified the inventive concept (a snap‑in resilient‑metal insert engaging a panel slot), held Abbott was entitled to the whole profit on infringing inserts and 10% of profit on panels where the insert/slot embodiment was the essential feature, and allowed a proportionate deduction of general overheads apportioned by sales revenue while disallowing director emoluments without proportional evidence.
Ratio decidendi
This summary is intended to identify the ratio decidendi, meaning the legal reasons for deciding and the binding part of the decision.
AI confidence in this ratio decidendi summary: high
The governing approach is (a) identify the inventive concept actually used by the infringer; (b) the patentee is entitled to profits "derived by" the infringer from that use; and (c) where a patent covers part of an article the patentee can recover profit on the whole article if the protected part was the essential (functionally or commercially most significant) feature or the whole article would not have existed but for the infringement. Sales of convoyed goods are recoverable where the patented article "drives" the purchaser's decision. The evidential burden on apportionment and convoyance lies on the infringer.
Obiter dicta
This summary is intended to identify obiter dicta, meaning observations made by the way that were not necessary to deciding the case and are not binding.
AI confidence in this obiter dicta summary: medium
The judge observed (obiter) that working to capacity is relevant but not determinative when assessing whether overheads would have been incurred absent the infringement; apportionment methods (sales‑revenue, volume, floor‑space) should be chosen case‑specifically and sales‑revenue apportionment may often be the least unsatisfactory; and directors' emoluments in closely held companies require particular evidence to be allowable as overheads.