OOO Abbott & Anor v Design & Display Ltd & Anor

Decision date: 4 September 2014

Neutral citation: [2014] EWHC 2924 (IPEC)

Overall AI summary confidence: high

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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 judgment records an account of profits after Birss J previously found the Claimants' patent valid and infringed by Design & Display. The judge held that the inventive concept is largely embodied in the insert and that the account extends to panels incorporating those inserts; permitted deductions were a 10% scrap allowance for incorporated inserts and a £7,018 direct labour deduction for cutting slots, while apportioned general overheads and a proposed further 10% discount were disallowed. Design & Display was not permitted to rely on s.62(1) where that defence was raised late and not proven.

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 scope of an account of profits is governed by the inventive concept: where the inventive concept is embodied in a part, the court may require an account of profits for whole products incorporating that part. Deductions from gross profits are limited to direct costs caused by the infringement (and specified, proven increases or opportunity-cost-related portions of overheads); general overheads cannot be deducted absent proof. Procedurally, s.62(1) defences should normally be pleaded by case management stages in IPEC and late reliance will generally be refused.

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 even a modestly embodied inventive concept may justify accounting for profits on entire convoyed goods (examples such as tin-whistle/battleship were discussed), and criticised parties for holding back significant defences until the account stage as undermining procedural fairness.

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