England and Wales Patents County Court
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Cite as: [2007] FSR 10, [2006] EWPCC 5
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B e f o r e :
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| (1) REGINALD JOHN BAILEY (2)LESLIE DENISE BAILEY (Trading as ELITE ANGLING PRODUCTS) |
Claimants |
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| And |
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| (1) GRAHAM HAYNES (2) SHIRLEY HAYNES (Trading as R.A.G.S) |
Defendants |
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Guy Tritton instructed by Rickerbys (Cheltenham), appeared for the Defendants.
Dates of hearing: 4-7, 10-14, 17-20 July and 1 October 2006
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Crown Copyright ©
- This is the trial of a design dispute relating to an item of fishing tackle used in coarse fishing. The principal interest of anglers in this field are two freshwater fish, the carp and its bearded relation, the barbel. Carp are voracious bottom feeders and as the plethora of specialist publications produced during trial show, they can grow to a very substantial size. After catching carp, anglers in this country generally return these fish to water. However (so I was told), carp are eaten with relish in Hungary and Eastern European countries. The fish are caught using bait bags, a boilie[2] and a hook, the combination falling to the bottom of the water to attract the interest of a passing carp. In recent times, the bait bags have been made of knitted PVA (polyvinyl alcohol) mesh which rapidly dissolves when it is immersed in water causing the bag to burst. The bags are usually formed from continuous tube which can be tied at one end, stuffed with bait of various kinds, tied again at the open end and then cut into desired lengths for use - somewhat in the manner of a string of sausages. The bag is secured to the line in proximity to the hook and the combination is cast. It falls to the bed of the lake and once the mesh has dissolved, the bait lies exposed beside the hook. The carp is attracted by the scent of the floating boilie and in expectation of greater satisfaction next turns its attention to the pile of bait-and it is hoped, to the hook. The angler waits, often sleeping ('bivvying') it seems, beside his line in expectation of a grand catch.
- This is an enthusiast's sport attracting devotees from all backgrounds whose interests are catered for by a variety of specialist products sold through retail outlets. The bait mesh subject of this action is just such a product. These retailers are supplied by wholesalers who in turn are supplied by 'sourcers', that is, by persons who develop, manufacture (or as the defendants do, have manufactured overseas) and sell, anglers' accessories. The litigants in this case are in fact both sourcers.
- Evidence was given about the many PVA meshes used by anglers and I was treated to eloquent dissertations on this micro-subject by the witnesses and by counsel. Mesh is sold in reels as a continuous tube of woven material for stuffing in situ. It is of some importance to appreciate that bait comes in various sizes, from fairly coarse-pelletted meal to live maggots and more recently, even to finer material. The bait is stuffed into the mesh using a short length of plastic tube (a 'loading tube') and a plunger, the finer bait being stuffed into what is called 'micromesh' material. This case is in fact concerned mainly with micromesh bait bags which first became commercially available in I think, 2002. Micromesh is woven to comprise small repeating units having (in undistorted state), diamond, hexagonal[3] and possibly other shapes. These repeating units in the mesh are hardly visible to the naked eye as sold but were made more visible for the purposes of the hearing by being stretched and expanded over the loading tubes which I have mentioned. They were then mounted to exhibit boards, one board for each side. I would mention that examples of micromesh stuffed with bait were also produced at trial and are to be found, fortunately sealed in an odour-proof plastic bag, as Exhibit 1. Exhibit 2 comprises a boilie and hook combination.
- At the time of the events which have led to this litigation (that is, in about mid-2003), there was it seems, a lively contest among aficionados to achieve model bait bags for casting. Like many products, the meshes used by carp anglers have lately become the subject of technical improvement which has affected various aspects of mesh design. In addition to the use of PVA (late 1990's), control of mesh shape and size soon became important. I should however say that maintaining the integrity of the mesh prior to its dissolution had become of particular importance and laddering of the mesh is, it seems, a serious drawback in this product. The propensity of various meshes 'to ladder or not to ladder' was a topic which featured strongly as part of the parties' evidence though it should be said that no mesh it seems, is ladder-proof. In practical terms, this case is about 'anti-ladder' or 'ladder-resistant' meshes.
- This dispute is thus concerned with the claimants' design of a PVA micromesh for a bait bag, which is ladder-resistant. Though always within the general context of the angling industry, the case has largely been concerned with weaving and with the resultant appearance of woven PVA structures. The claimants allege that a 'revolutionary' weave which it had developed, was in fact copied by the defendants.
- The parties to this litigation are both husband and wife partnerships – and competitors. Both are of modest commercial size, the defendants being I would guess, more substantial in commercial terms than the claimants.
- The claimant partnership is from Carmarthen: Mr and Mrs Bailey, Reginald and Lesley respectively. They sell angling accessories under the style 'Elite Angling Products' and Mrs Bailey is the moving spirit in the enterprise. I shall refer to the claimant as 'Elite'. Elite were represented by Mr Mark Chacksfield. The defendant partnership trades from Ross-on -Wye in similar products under the name R.A.G.S.. The defendant partnership is Mr and Mrs Haynes, Graham and Shirley respectively. Mr Haynes is the moving spirit in this partnership. They were represented by Mr Guy Tritton and were referred to throughout as 'RAGS'.
- Mrs Bailey gave evidence for Elite and Mr Haynes gave evidence for RAGS, such evidence being mainly directed to background matters and to the issue of alleged copying. These persons were the protagonists in the litigation and their evidence was the subject of criticism by opposing counsel on various grounds, their own counsel characterising flaws in their respective clients' evidence as arising merely as a result of 'confusion'. Whilst, as we shall see, there was indeed material to be confused about, I regard that description as being somewhat charitable. Though neither person was I think, deliberately seeking to mislead the court, I found the evidence of both these witnesses to have been partisan and I have accordingly received it at times with caution. This has made the task of establishing the probable truth with regard to copying (which - as is usual when it is in issue- took up most of the hearing), difficult. Of one thing however I am certain: Mr Haynes knew much more about the UK market in angling meshes and bait bags than did Mrs Bailey.
- As a result of the evidence, I have come to appreciate that in the angling world there is a well-established chain of distribution. I have described both parties as 'sourcers'. Sourcers have products manufactured for them and stock them to sell on to substantial wholesalers. An item will reach the angler via one or possibly two further stages. In this case, the parties had a number of wholesalers in common, some of whom (such as Gardner Tackle Ltd) gave evidence. Somewhere along the chain, a product acquires a trade mark or name and gets advertised in the many trade journals. Trials are conducted and the results are also published. This question of advertising forms one of the numerous sub-topics which Mr Chaksfield invoked to support his case on copying and I shall have to return to it. I should however say that the parties differed in this respect: RAGS never advertises or 'trademarks' its products; that is left to those lower in the supply chain. It has no brand. On the other hand, Elite has always promoted the product incorporating the design in issue (the 'Elite Micro Mesh'[4]) with gusto, believing it to be a 'revolutionary' product[5]. Whether that claim is justified is another matter to which I shall return when I consider copying. Nonetheless I have no doubt that Elite was genuinely proud of this product particularly as it was their first mesh. RAGS on the other hand have always sold a number of bait meshes.
- For the record (and this again has a bearing on copying and indeed on other issues in the case), I find that the Elite Micro Mesh (a small sample of which is to be found inside a philatelic bag at C1/1/15) was first commercially shown at the Evesham Angling Fair sometime in August 2003 and first advertised in October 2003 : Mrs Bailey, witness statement I /B/1/§§ 48 and 53. Mr Haynes told me that he did not see the Elite product until September 2003 having been told about it by a prospective employee in late August 2003: Haynes witness statement I B/9/§§ 68 and 75. I accept this evidence - which also has a bearing on copying.
- The availability of mediation as a possible avenue of resolving this dispute was the subject of a recital in the order I made at the case management conference in February 2006: see A/9/46. I was told by Mr Chacksfield, that mediation though considered, proved to be of little interest to either of the parties[6]. I should also add that the claimants' case was funded by a conditional fee agreement dated 10 August 2005: see A/3.
- Two causes of action are relied upon, both in relation to the same design ie 'the Elite Mesh': UK unregistered design right (UKUDR) and Community unregistered design right (CUDR). I have set out below the parts of the statutory sources which are I believe, most relevant to what follows, those words and phrases which are highlighted being the subject of debate in this case.
- Unregistered Design Right. The relevant parts of the Copyright, Designs and Patents Act 1988 ('CDPA '88') as amended, are as follows:
- Community Unregistered Design Right. CUDR has its statutory source in Council Regulation no. 6/2002. The parts of the Regulation which are presently most relevant are as follows:
- At this juncture, I pause to make some threshold observations - in no particular order:
- Infringement of the Elite design was alleged by the sale etc of RAGS' PVA Micromesh material, samples of which are to be found inter alia at C3/26, 28 and 30. Also cited is a blown-up photograph of RAGS' product at C4/1/4 (see below).There is also a 1 x 1 cm patch of the RAGS material a philatelic bag at C4/1/16[7]. RAGS have admitted the sales etc of their mesh but deny infringement for a number of reasons. Their primary response to the allegation is on the basis that their product was independently designed for them by their supplier in China i.e. that there was no copying. They have also stated that their product is in any event not made 'exactly or substantially' to the design of the Elite Mesh (CDPA '88, s. 226 (2)).
- With respect to UKUDR, RAGS have also raised the 'method or principle of construction' exclusion (CDPA '88, s. 213(3)(a)). It is to be noted however that until very shortly before trial, separate objections of lack of originality and/or 'commonplace' were not raised by RAGS-at any rate, expressis verbis[8]. With reference to CUDR, RAGS have raised the allegation that the features of appearance relied on are dictated solely by the technical function which the design is to perform (Regulation, Art 8).
- It has often been noted that since UKUDR and CUDR are rights which are intentionally 'flexible' in the hands of their proprietor; they can be 'trimmed' closely to match what a claimant believes the defendant to have copied. The form in which the claim is asserted in the pleadings must therefore be stated with precision: see A Fulton v Grant Barnett & Co [2001] RPC 257 at §37. This was accepted by Counsel. As there was however debate as to what exactly the design in issue comprises, I shall begin by considering the relevant parts of the pleadings.
- Paragraph 4 of the Particulars of Claim reads as follows:
- Annex 1 is a loading tube over which a tubular length of mesh has been slightly stretched (but not distorted lengthwise) and tied at its ends. The woven structure of the mesh (including the open repeating units of which it is constructed) is visible to the naked eye.
- RAGS made a Pt 18 request for further precision in identification of the design in issue[9]. Response 3 to the request reads as follows:
- the size and shape of the actual individual threads used in the mesh attached to Annex 1 of the Particulars of Claim (e.g. the diameter of the thread)
- in the warp knitting method per se by which the thread stitches and structure referred to above were created .
- The 1cm x1cm sample of Elite Mesh referred to is to be found at C4/1/15 and is best appreciated against a dark background. Unlike the stretched material of Annex 1, it appears to me on casual examination as a small patch of loosely woven cloth[11]. On closer examination (helped by a small magnifying glass), its units become visible and its mesh-like quality becomes apparent. The material has an degree of openness about it, having small interstitial spaces. It is admitted that both Annex 1 and the 1 x 1 cm patch of material are made to Elite's Mesh Design.
- The 'article' of s.213(2) (or 'product' of Art 3(a)) upon which Elite relies is a '3-dimensional structure made of thread stitches' which in theory could possess an infinite lateral extension of its constituent units as it is a knitted material. Elite relies both on the appearance of two parts of that structure: first, its smallest repeating unit and secondly, an arbitrary area thereof, say, a 1cm x 1cm patch, comprising a multitude of such repeating units.
- It was not in dispute that the Elite Mesh design is for a 3-dimensional structure made of thread stitches. Moreover, counsel also had this in common: they agreed that the scope of the Elite Design was broad. In this connection, Mr Tritton drew my attention to what was to become an important fact that is, that there was no limitation to the dimension of the basic repeating units in the material, Elite's claim being apt to cover both a visibly open mesh, more closely woven ones and also materials whose repeating units required a magnifying glass or even a microscope (see below) to appreciate by eye. All these products were knitted in the same way and yielded the same basic repeating structure. Thus he submitted, the Elite Design was apt to cover a spectrum of woven materials having varying degrees of openness, including even what would seem to the naked eye to be a 'full cover' textile. In the latter case he said, were examination to be assisted by magnification, the same repeating units would be seen to be present. Where he asked rhetorically, does one draw the line on the size of the repeating unit? This comment was made a number of times during the argument.
- I have already mentioned the case management conference in connection with the possibility of invoking the use of mediation. I must also mention that the order I made at the time makes no reference to the use of experts. Having had some experience of 'knitting machine' cases whilst at the Bar, I was pleasantly surprised when Counsel (the same Counsel who appeared at trial) assured me that there would be no need for any expert evidence. This state of affairs persisted till shortly before trial when Mr Tritton complained that one of Elite's witness (a Mr Stevenson) was in fact giving expert evidence about textiles and weaving. Mr Tritton's objection was I think, well-founded but had a hollow ring about it as he too needed expert evidence to advance his own case. RAGS also fielded the designer of the alleged infringement, Professor Zong Ping Sheng from China, to give factual and expert evidence. By the first day of trial, expert evidence on textile structure and weaving had indeed become central to both sides' cases. Experts were evidently now needed and gave evidence as such without further difficulty being raised as to their status.
- Next, on the eve of trial, Mr Tritton proposed significant amendments to RAGS' defence in the UKUDR case, directed first to lack of originality of the Elite Design. In addition, the same amendment was directed to invoke the statutory 'commonplace' exception as of June 2003 (when the Elite Design was created) and also under CUDR, to the 'different overall impression issue'[12] as of August 2003 (when the Elite Design was first published). The proposed amendment to the Defence is at A/6 and is no mere formality: see new paragraphs 4 and 5[13]. Particulars were given of a number of antecedent publications (including a work by Prof Zong in Mandarin) relating to what is known as 'Atlas warp knit patterns' about which a good deal of evidence was later given. It was at once apparent that a seriously technical topic was being introduced.
- Not surprisingly, Mr Chacksfield protested vehemently at this development. The amendment was, he said, too substantial and too late. RAGS could and should have raised these classic objections long ago. He suggested that the development was more tactical than a real reflection of any belief in a genuine case. There was argument as to whether these attacks had been foreshadowed earlier in the case but in the light of what transpired, I need not now go into this. The nub of the proposed attack was this: that the Elite Design
- Having by this time read into the case, I realised that this development not only required proper consideration but might also have an impact on certain other aspects of the case. Having regard to this and to the adventitious appearance of experts, I gave RAGS leave so to amend (subject of course to costs). I also gave Elite time to consider their position in the light of this amendment. In the event, the trial went ahead without substantial adjournment.
- Counsel originally estimated the case for a three day hearing but for a number of reasons, it in fact lasted 15 days and involved taking evidence (one witness by video-link) from no less than 17 witnesses. In my view this could and should have been foreseen and a revised estimate given to the Court in good time. I would add that since both Mrs Bailey and Mr Haynes told me that they knew next to nothing about weaving before becoming involved in this case, no blame can be laid on them for what occurred.
- This topic assumes importance in the case for two reasons. First, it is very easy to distort the appearance of a mesh by slightly pulling or twisting it. In what follows, I have at times described the appearance of meshes in a slight but nonetheless uniformly stretched condition on loading tubes, their wales and courses being in substantial structural alignment. In the alternative, the meshes may be considered in a 'loaded' condition; that is resembling taut 'sausages' of bait ready for use (known as 'dynamite sticks'): see Exhibit 1. This seems to me to be a commonsense compromise and in addition accords with the approach to viewing a design taken in a number of reported design cases wherein the subject matter- a garment for example or an umbrella case- is capable of distortion as a result of arbitrary manipulation.
- The second point relates again to the scope of the Elite Design (see above). The parties' made extensive use of photographs of magnified sections of mesh- usually x 20. There was actually a plethora of photographs in the case taken by independent photographers for the parties' solicitors. There were so many photographs in fact that a sub-dispute erupted during the trial, as to whether an Elite mesh had been incorrectly identified by Ms Gemma Lewis, a solicitor in the firm acting for Elite[14]. Though helpful for the purposes of technical explanation by an expert (for example to show the difference between warp and weft knitting), Mr Chacksfield correctly pointed out that this is not of course the way such products are looked at in real life. The end user of the product is the angler. As I have explained, he purchases the mesh in a tubular condition rolled up on a spool. The angler will be interested in mesh size having regard to the nature of the bait he may want to deploy. He will I think, consider the product in a slightly stretched state - possibly on a tube- and from approximately an average reading distance. I have also taken into account for this purpose the need to compare mesh using much the same diameter of loading tube and also to allow for the visual impact of differing thread diameters.
- On the other hand, it will be recalled that Elite's case is alternatively advanced on the basis of the smallest discrete repeating unit of the design. It was not suggested that such a unit can always be discerned by anybody's naked eye (let alone that of an angler about to purchase mesh). So photographs of magnifications of meshes are necessary in connection with aspects of the alternative way the case is advanced.
- I shall deal below with some of the technical aspects of warp knitting and the Atlas pattern in particular. I should however record at this juncture that in mid-2005 the RAGS mesh changed from what is known as an open-closed-open 3 needle bed Atlas stitch (which I have called Mark I) to a closed –closed-closed 3 needle bed Atlas stitch (called Mark II)[15]. This results in a slightly different appearance when seen in comparative photographs of magnified webs. On the other hand, the Elite Mesh has always been woven to an open-closed-open Atlas stitch. The differences between the parties' meshes were therefore slightly less when RAGS were selling their Mark I material viz the mesh complained of. Though technical evidence was directed to the point, I do not think it makes enough difference to the outcome of the case to warrant my going into the detail of it and I do not therefore propose to do so.
- With the foregoing in mind, I record at this juncture that when the two meshes in issue are compared, the first visual impression made on me was one of very slight difference, the differences becoming more or less apparent depending upon how one looks at the products.. As the defence states (§15) :'the loops of the [Elite] mesh design are smaller and the crossbars are closer together.' To the untutored eye, including that of the angler, the meshes are nevertheless, strikingly similar. Moreover, Professor Zong was unable to differentiate between photographs of the litigants' products[16] and Mr Litton, Elite's designer, was sure that one was copied from the other merely upon visual comparison[17]. On close examination, the micromeshes are indeed not identical in structure. The differences are slightly more apparent (as one would expect) when one compares photographs of the two under identical magnified conditions, particularly when the repeating units have been helpfully 'coloured in' by the parties' solicitors. But that clearly is not how the average angler would look at bait meshes.
- The relevant statutes and authority require such comparisons (typically for the purpose of infringement) to be anchored in reality. Thus, taking first the UKUDR, in C&H Engineering v Kluznik & Sons Ltd [1992] FSR 421 at 428, Aldous J held that comparison was to be effected "through the eyes of the person to whom the design is addressed." In CUDR, the position is made very clear by use of a statutory test of comparison involving the production 'on the informed user' of 'a different overall impression'. As previously explained, the notional addressee of these designs for present purposes is I believe, an angler of average experience who has an interest in the equipment he purchases: § 15(g) above. It is not, as Mr Tritton suggested, a person in the textile industry.
- In my judgment, when one considers either aspect of the Elite Design (and assuming for present purposes that Elite's Design rights subsist as alleged and that the Elite Design had been copied), the effect on the eye of the average angler (and I suspect, that of any lay observer) would, I think, be the same: that the Elite Design and the RAGS mesh design did not differ substantially. Upon those suppositions, infringement would follow. In fact, by the end of the hearing, infringement had become a minor item on counsels' menu. Indeed, I gained the impression that if the Elite Design survived the statutory attacks on its subsistence and the allegation of copying was made good, infringement would almost inevitably follow.
- Before leaving this section I would just add the following:
- For Elite.
- For RAGS
- I shall next deal with this topic as its effect pervades much of this case. The bottom line is this: the two meshes in issue are warp knitted and are ladder-resistant. Prior to the events leading to this litigation, bait meshes were invariably weft knitted and had in varying degree, a propensity to ladder. Furthermore, it was not in dispute that
- I have found the evidence of Mr Stevenson to be the most accessible under this head and what follows is largely adapted from it The subject is undoubtedly technically complicated but it is not I think necessary for present purposes to go into the detail in any great depth. A textbook by David Spencer ('Knitting Technology', Cambridge 2001) [X5] is pleaded in the amended defence and chapter 23.12 of this work (which was put by counsel to the experts) provides a comprehensive explanation for what follows in précis.
- Knitting is effected by bending yarn into a loop and passing this loop through previously formed loops so that the new loop hangs onto the previously formed loop. Two kinds of knitted material exist: warp knitted material and weft knitted material. In both forms of knitting, the loops can be formed in a large number of ways, linking across the rows of loops, missing out rows or columns, doubling up or missing out needles/pins etc. The basic difference between the two kinds of material is that weft knitting (weaving) involves running a single thread back and forth across the growing material whilst in warp knitting, a large number of threads are laid down simultaneously, all lying primarily in the direction in which the new material is being created. Weft knitting is in fact the application of traditional hand held knitting techniques on an industrial scale. Unlike warp knitting, it can also be used to make tubular products. Warp knitting was a somewhat later invention and is carried out on for example Tricot or on Raschel machines, both of which were well known at all material times. Unlike weft knitting machines however, warp knitting machines make material in rectangular open widths. If (as in the present case) tubular material is required, special measures have to be taken to join the rectangular sections by two seams running along the end wales in the Raschel machine.
- The knitting technique which is of particular interest in this case is what is called 'the three needle/two course Atlas warp knit pattern'. Atlas lapping is one of three (or maybe four) possible arrangements of lapping at successive courses, another example of which (and about which there was some evidence), being Tricot lapping. An illustration of Atlas lapping (illustrated as a single guide bar warp knitted design) is shown in fig 23.7 of Spencer's textbook Knitting Technology 2001[23]. Atlas lapping as I understand it, is a knitting movement where the guide bar laps progressively in the same direction for a minimum of two successive courses. This is normally followed by an identical lapping movement in the opposite direction. Usually the progressive lapping is in the form of open laps and the change of direction of course is in the form of a closed lap. But the roles may be reversed. Another lapping diagram for this method (which is also pleaded in the amended defence) is found in the Karl Meyer Raschel Instruction Manual ('Betriebsanleitung', 1985) [X6]: see the Atlas tube lapping diagram on the third page of [X6]. This is the basic lapping diagram for the Elite Design which has an open-closed-open loop structure to which I have already referred. The 3 needle Atlas lapping technique is also illustrated in Prof Zong's textbook (see above) and in two other Chinese knitting textbooks pre-dating mid -2003 (see [X7] and [X8]). In the light of this, I have no doubt that proposals for using the 3 needle Atlas warp knitted pattern to weave cloth had been made available to the public well before June 2003, the time when the Elite Design was created by Mr Litton.
- In view of the relevance of this finding to the case, the facts require closer examination.
- Mr Litton knew a good deal about Raschel knitting machines and warp knitting techniques in general and some of it is relevant to this part of the enquiry. Any material having a 3 needle Atlas structure, said Mr Litton, is very rare indeed. There is a reason for this: the material so woven is an unruly and useless textile. One would have avoided an Atlas stitch 'like the plague': T4/152. In fact, the material which he created for Elite was the first such mesh he had ever seen knitted in this way in his life. In the 1970's he had seen material woven in 3 needle Atlas lap only in the form of 'full cover' or 'solid' fabric for ladies' snoods : witness statement § 2.4, 2.5. Prof Zong's evidence was to much the same effect. He was aware only of only a single example of warp knitted material made in this way in China and that was for the repair of lungs and livers. The production, he said, was only about 20kg per annum. This is evidently a highly specialist material made only in small quantity:T6/131. There is no evidence as to what this fabric looked like but I infer that it was probably not a mesh or RAGS would most likely have relied on it. Mr Stevenson had never even seen a commercial material made with an Atlas weave: T6/51. Finally, there is nothing in the pleadings relating to the availability of such warp knit material before the date of the events with which this action is concerned,[24] The upshot of all this was much relied upon by Mr Chacksfield when he addressed the issue of 'commonplace': see below. Having regard to this evidence, my impression is that at all material times the Atlas pattern was rarely used in the weaving industry and that the products made thereby were about as rare as hen's teeth.
- The Law. It was common ground that the burden of showing that the Elite Design was original lay with Elite. It was also agreed that the law on the subject is the same as that which applies to the concept of originality in the copyright field. The notion of originality is not to be equated with novelty as understood in the field of registered designs (or patents); it is altogether less of a hurdle. There are two basic ingredients. First, the work must originate from the author, that is, it must not have been copied from another work. Secondly, there must be sufficient skill and judgment deployed so that the work cannot be characterised as a purely mechanical exercise.
- I was taken by Counsel to a number of the classic authorities on the topic from University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch 601 to Sawkins v Hyperion Records Ltd [2005] 1 WLR 3281 at [22] –[36]. First, there must be no 'mere servile copying'. Mr Tritton also took me to authorities touching the 'skill and judgment' requirement particularly in relation to the issue of originality where a mere change of scale is involved: Drayton Controls v Honeywell Control Systems Ltd [1992] FSR 245 at 260 and to the judgment of Lord Oliver in Interlego AG v Tyco Industries Inc [1989] AC 217. I reminded Counsel of the words of Sir Robert Megarry V-C on originality in copyright context, in British Northrop v Texteam (Blackburn) Ltd [1974] RPC 57.
- The Facts. The story of the Elite Mesh Design is recounted in detail by Mr Litton in his witness statement and I need not repeat it. He started with 'a blank piece of paper' and went through 30 or 40 theoretical designs before selecting a 3 needle closed open closed Atlas stitch. He worked with several prototypes before he was satisfied that he had adequately interpreted Mrs Bailey's commission – which required the material to be a ladder-resistant micromesh. He was paid for his work and in due course assigned all rights therein to Elite. I am satisfied that copying from antecedent work such as a mesh or cloth did not occur and in addition, that this was not a case of 'scaling up or down'. However, as Mr Tritton rightly pointed out, certain elements of his design exercise do not enter the enquiry as to the originality of the Elite Design (such as thread diameter and thread tension). Neither of course is the selection of the Atlas method as such, relevant. However his approach to certain other details of the design parameters, in particular the number of courses per centimetre (which determines the 'openness' of the mesh structure) and to whether the 'close-open close' structure (as opposed to a 'close-close-close' structure) is adopted, are I think, pertinent to the present enquiry: see T4/199-201. They have some effect on the appearance of the woven material and upon the individual units thereof. Here in my judgment, Mr Litton did exercise some (albeit a rather small) degree of skill and judgement so as to enable the court to say that the Elite Design was original.
- I have considered all these matters and am of the view that in creating the Elite Design, Mr Litton did not copy antecedent material and exercised the minimum amount of skill and judgement required to imbue the design with originality for the purposes of the statute.
- The Law. First, this exception is not comparable to lack of novelty and the section is to be construed narrowly: Farmers Build Ltd v Carier Bulk Materials Handling Ltd [1999] RPC 461 at 481-482. With regard to this requirement, the burden is on RAGS to make good the objection. I was referred inter alia to Occular Sciences Ltd v Aspect Visions Care Ltd [1997] RPC 289 at 429 where Laddie J used the following adjectives to throw light upon the statutory use of the adjective 'commonplace': "trite, trivial, common or garden or hackneyed". In connection with 'the design field in question', I was reminded by Mr Tritton that it is also wrong to consider the nature or purpose of the article embodying the design: Scholes Windows Ltd v Magnet [2002] FSR 10 at §§37-38. In what follows, I have borne these considerations in mind.
- The Facts In my view the 'field in question' is that of warp knitting. In that field, the expert evidence on whether the Elite Design was 'commonplace' is heavily against RAGS: see above § 44. Such full cover cloth as had been knitted in this way had been produced in very minor quantity only. Indeed, there is I believe, no evidence that mesh (as opposed to full cover cloth) had ever been made to a 3 needle Atlas stitch. The Design is certainly not 'commonplace'.
- My conclusion on this aspect of the UKUDR case is therefore that the Elite Design is both an original design and that it is not commonplace within the meaning of the Statute.
- The Law Article 4 requires that the design shall be 'new' and have 'individual character'. The approach to the subsistence of CUDR is thus different to that of UKUDR since it requires the identification of relevant prior art as a first step. I accept Mr Chacksfield's submission that the relevant prior art in this case must be an example of an actual woven material and not a written guide for weaving material eg via a lapping diagram. Prior 'availability to the public' is inherent in both the requirement for novelty (Article 5(1)) and for the possession of individual character (Article 6(1)). This characteristic is elaborated in relation to both Arts 5 and 6 and in Article 7 ('Disclosure'). In connection with the requirement for 'individual character', I was also invited to bear in mind what is foreshadowed in Recital 14 to the Regulation. Finally, according to the rubric to Article 4 of the Regulation, novelty and the possession of individual character are threshold 'Requirements for protection'.
- If this aspect of the design is challenged, the burden said Mr Tritton, falls on Elite to show that its Design possesses both of these qualities, the issue being similar to that of originality in UKUDR (and copyright). I reject that submission. Whereas the facts relating to originality are precise and inevitably fall within the knowledge of the author of a work, the full facts which may affect novelty and individual character usually do not and in addition, may involve questions of opinion. In my view, in CUDR, the onus in this respect is analogous to that arising in an action to revoke a patent: the burden is on the party wishing to impeach the statutory right.
- There is another preliminary statutory consideration which permeates CUDR. Article 6 speaks of 'the informed user'. Article 7 refers to what was 'known in the normal course of business to the circles specialised in the business concerned within the Community'. The enquiry thus focuses on those having a practical interest in the use to which the product incorporating the design is to be put. It seems clear that in this case one is concerned only with the market in fishing tackle and with the perspective of anglers at the relevant time: see above. It is from the point of view of that market and such users that the assessment of subsistence must be made. Having regard to the Chinese dimension in this case, I note also: 'within the Community.'
- The Facts. I refer primarily to the facts which I have already recorded touching material knitted according to the Atlas warp knit method: see § 44 above. I cannot think that the average angler would have the remotest interest in ladies' snoods. Furthermore, there is no evidence that a mesh made according to this method has ever before been made. The attack is completely without foundation in my judgment, and must fail.
- The Elite Design consists only of features having a functional purpose; it has the appearance of a woven material whose only purpose is to contain particulate bait. But that of itself does not disqualify it from protection as a design. At the case management conference, RAGS inter alia sought to strike out the UKUDR part of this action on the basis that the functional exclusion provided for in UKUDR applied in this case: see A/8. It was said that Elite were not seeking to protect the shape or configuration of an article but rather a method or principle of construction, being a specific type of weave.
- I declined to strike out the UKUDR part of the action, largely on the basis that the evidence then before the Court was insufficient to warrant so extreme a course of action. It will be recalled for example that there was no expert evidence available to enable the Court to reach a reliable technical assessment without (as I then thought) the risk of injustice to Elite. I now have relevant evidence under both UKUDR and CUDR. In the light of this evidence, I am now of the view that the Elite Design falls within the UKUDR functional exclusion and that that part of the action the action should indeed be dismissed for that reason.
- 51 The Law. 'Design right does not subsist in - (a) a method or principle of construction.' An identically worded exclusion has been present in the Registered Designs Acts for quite some time. Thus, in Kestos Ltd v Kempat Ltd (1936) 53 RPC 139 at 151, Luxmore J held that this exclusion denies registration to 'a process or operation by which a shape is produced as opposed to the shape itself.' The learned judge then quoted the late Mr Russell-Clarke's epitome of the underlying principle which he said, was exemplary[25]:
- Both counsel also relied on the judgment of Park J in a UKUDR case, Fulton v Barnet [2001] RPC 257 at § 70. Park J said this:
- Mr Tritton drew my attention to the only registered design case of which he was aware (and was indeed the only such authority to which my direction was directed) in which a weave had been in issue: Moody v Tree (1892) 9 RPC 233. The design registered was the picture of a basket, the claim being for the pattern of the basket consisting of the osiers being worked in singly and all the butt ends being outwards. It was held that the registered design was invalid as covering a mode of construction. He submitted that the proper way to protect a type of weave was by way of patent protection and as Annex A to his opening skeleton of argument, he produced a number of relevant patents in support of his argument.
- Counsel agreed that the exclusion did not apply merely because the design was wholly functional in character. Indeed in this aspect of the enquiry, the function of the product made in accordance with the design is irrelevant. The real purpose of the exclusion is in my view 'to ensure that designers cannot create an effective monopoly over articles made in that way.'[26] This is 'patent type protection through the back door', as it has been called. I also have come to the conclusion that save for the case of the woven osiers, Moody v Tree (supra), the decided cases to which my attention was drawn (such as the action involving the umbrella case), are factually very different to this case.
- The Facts I have I think sufficiently set out most of the facts relevant to this part of the enquiry. The main additional facts are I think, these. First, Mr Chacksfield agreed that the Elite Mesh was woven in accordance with the known three point Atlas warp knit stitch pattern. He also I think, accepted that other materials not (as he saw it) falling within the scope of the Elite Design could also be thus made, because they were of a different appearance to the eye. For example, in this category was the prior art ladies' snood. But all these products must ultimately present a visually similar structure even if one has as it were, to dis-integrate a sample and examine the result with a magnifying glass or a microscope. This is because they are all woven in the same way.
- Reminding me that there were no dimensional limits to the Design, Mr Tritton argued that in this case the real claim being made by Elite must be to the weave arising by implementing a three needle Atlas warp knit pattern. The use of this method of weaving inevitably, so he said, generates a particular shape or appearance in the resulting woven material- which is the subject of the Elite Design – even if one has to use a magnifying glass to observe it with the eye. In other words there is here a 1 to 1 correspondence between the shape and configuration of the article and the method or principle of construction; it was a claim to a knitting pattern. Thus he argued, the design was excluded. He further submitted that Elite is in truth claiming a multitude of appearances produced by a particular method of weaving – rather than a single shape which is of course what a 'design' must consist of. The claim was to a generalised design concept. In this connection he drew attention to
- Mr Chaksfield's principal response was to say that both in his pleadings and throughout his argument he had made it abundantly clear that Elite made no claim to the three point Atlas stitch as such or thus, to the result of weaving material by its use. In fact, his statement achieved something of a mantra by the end of the hearing. Though I do not doubt the sincerity of this statement, it is I think, insufficient an answer to the challenge; the issue must be assessed objectively.
- Mr Chaksfield also argued that the Elite Design was obviously directed not to a cloth but to a mesh, which was a different thing. The design, whether one looked at the 1x1 cm material sample, the material stretched on a loading tube or at an individual repeating unit, revealed to the eye something always having an open texture. There could be no scope for including within this a close woven or 'solid' cloth, even if it was to be woven in the same way
- I have a problem of principle with Mr Chacksfield's approach and it is this: when does a mesh (or more to the point, a micromesh) become a cloth? And how does the addressee of the design (let alone the court) appreciate this distinction? And (perhaps most importantly), how do these issues touching the 'shape or configuration' of the Design square with the requirement of precision of pleading: see §18 above? The claim must cover one design only. There appears to me to be an arbitrary element in this case in attributing any distinction between mesh and cloth. Thus, how far away does the observer need to stand when performing his assessment? And so on. I have already noted the use by both parties (without demur), not only of the magnifying glass in this connection, but even of the microscope.
- I have come to the conclusion, not without hesitation in the light of my finding on originality, that this is a case where the statutory exclusion bites. The basic appearance of this design is generated by the Atlas warp stitch method and though its appearance may slightly differ from product to product, in truth the design right will inevitably cover a 'method or principle of construction'.
- The action based on UKUDR therefore fails.
- The Law Article 8.1 reflects recital 10 to the Regulation:
- In this connection, my attention was drawn to the observations of the ECJ (and to the opinion of Advocate-General Calomer) in one of the well-known trade mark cases involving a three headed head rotary shaver trade mark: Koninklijke Phillips Electronics NV v Remington Consumer Products [2003] RPC 14 where a similar phrase occurs in the Trade Mark Directive (Directive 89/104). I was also referred to the judgment of the House of Lords in Amp Inc v Utilux Pty Ltd [1972] RPC 103.
- I am aware that Landor & Hawa v Azure [2006] FSR 22 to which I was referred, went to appeal. At the time this judgment was being prepared, the approved judgment of the Court of Appeal had not yet been handed down. Nevertheless, the Court of Appeal has so I am told, endorsed the view of this Court on the major legal issues. For example, I thought then that the Trade Mark Directive could not safely be relied upon to interpret Article 8.1: §35 and I shall not therefore say more about it. I simply refer to the views expressed by the editors of Skone James on Copyright (supra) at § 13-208, that it is not clear whether the exclusion in Article 8.1
- At first instance, this Court took a narrow view as to the scope of the Article 8.1 exclusion.
- The Facts What is the function of the Elite Design? The genesis of the Elite Design was described in detail in the evidence of its designer, Mr Michael Litton. As Mr Tritton pointed out, the mesh was designed with only one end in view: effectively to contain finer types of particulate bait until the ensemble resting at the bottom of the lake disintegrated. The bait is held in place both by the pitch and shape of its mesh and by its inherent anti-laddering quality which arises as a result of the warp knitting method by which it is made. That he said, was the sole purpose of the product's existence. I agree and add that the extent to which this practical desideratum is achieved in practice was also the subject of evidence. I shall return to this issue under 'Copying: Must have' where the alleged excellence of the Elite product was proposed as an incentive to copy on the part of RAGS. For present purposes however I need only say this: that to me, the overall effect of this evidence was that the performance of the Elite product in relation to prior art products was merely comparable. Other warp knitted products already on the market did as well in the 'anti-ladder rating': see below.
- Article 8.1 is I think, to be construed narrowly. Since the Elite Design is not the only design which is capable of achieving to a degree this useful function for anglers, the Design is not in my view, caught by the exclusion and this objection therefore fails.
- As this part of the case took up the larger part of the trial and covered many matters, I shall first make some general observations before considering the facts.
- Copying was denied and the trial thereupon took a predictable course. Whether or not copying occurred now fell to be established as a result of the credibility of the relevant witnesses under cross-examination on a variety of topics, many of them peripheral, on the effect of contemporaneous documents (mostly a continuum of emails passing between Mr Haynes and Fulian) and of the inferences to be drawn from the facts established thereby. There were no useful samples or photographs[27] of material undergoing evaluation (particularly of the much investigated Sample C) though the emails do refer to numerous development samples being submitted from China for Mr Haynes' comment. Nor were there any satisfactory technical descriptions of such materials[28]. Rather, inferences had to be drawn about their structure from the remarks of the recipients (or the lack of them) about suitability for purpose (e.g. solubility, improved anti-ladder qualities etc). In this case, as in virtually every other of the same character, Counsel left no stone unturned in their unrelenting quest for the truth and thus the trial overran its allotted time – grossly. For example, time was taken in exploring the production rates of different types of weaving machines, in particular that of a second-hand double needle bar Raschel machine, in order to show that a particular material was more likely than not to have been weft rather than warp knitted. At times I found myself having to remind Counsel about the real issues in the case.
- In the circumstances I have therefore not found it necessary to evaluate every point taken by counsel to assess whether therein may lie a scintilla of deceit. I have focussed merely on the most important issues as they appear to me.
- Serious criticism was levelled at RAGS by Mr Chacksfield because certain witnesses from Fulian (and Prof Zong's assistant) had not been called to give evidence (see above). I have mentioned that Prof Zong though an academic, directed the entire Sample C development; the people at Fulian tried to do what they were told to do by Mr Haynes and by the Professor. Both the Professor and Mr Haynes were cross-examined at length and I do not believe that either of them was seeking to deceive the Court.
- Moreover, in my view, the Professor had no need to copy; he was already an expert in the art of knitting and of warp knitting in particular. In addition, well before mid-2003, he knew that warp knitting resulted in better anti-ladder qualities. Even if he had had before him a sample of Elite Micro Mesh to examine (which I do not think he did) and as a result, he switched Sample C from weft knitted material to warp knit, that cannot be something about which complaint can be made in design infringement litigation of any kind. There were only a limited number warp of knitting methods and, as such, Elite agree that they cannot monopolise any of these methods. As a result, I have been able to form a sufficiently clear view of the relevant facts from the Chinese perspective –this view being supplemented by relevant reciprocal evidence of Mr Haynes. They were after all, the persons who made all the fundamental decisions about how this particular commission was to be implemented. I have all I need.
- This issue arose because RAGS' case to rebut copying crystallised only shortly before trial. The Professor's first, somewhat laconic witness statement for example, was dated 8 June 2006, some three months after the case management conference and less than a month before trial. The third of his witness statements, in which the copying issue is now treated in serious detail, was signed on 4 July, the first day of the trial. This problem was compounded in my view, by Elite's failure to produce its designer, Mr Litton, to give evidence until the trial was underway. When copying is denied, it is I think vital to the success of alternative dispute resolution in design (and copyright) cases that the parties put their cards on the table at an early stage if the process is to have a reasonable prospect of succeeding. No doubt this matter will be further ventilated when the question of costs comes to be considered.
- I also had the benefit of reading numerous contemporaneous e-mails and of hearing evidence on them. E-mails are rarely if ever in my experience, polished works. More often, they record practical and social ephemera: the exigencies of the moment in compressed or often fractured form. In this case, a number of them were from employees of Fulian whose command of English seems to have left much to have been desired. Whilst there were passages in the e-mails whose meaning was perhaps capable of alternative interpretation, I detected no revelation of Mr Chacksfield's 'smoking gun' viz that Sample C had been woven to copy an Elite sample. This was referred to by Mr Tritton as the 'great switch theory'. Moreover, this 'switch' would have additionally required a collective conspiracy on the part of six witnesses, some of whom (such as the wholesalers) were wholly independent. Mr Haynes excepted, these witnesses are the following:
- For the record, (Mr Ibrahim excepted), I found all these witnesses of fact to have had a reasonably accurate recollection of the events put to them and am prepared to accept the evidence they gave.
- Regarding the standard of proof in this connection, my attention was drawn to authority, to a House of Lords case In re H [1996] AC 563. Lord Nicholls of Birkenhead said this (at 586):
- The notion of a conspiracy would require multiple, dishonest orchestration. I do not for a moment think that that happened. For example, there was no evidence that Sample C micromesh[30] possessed different properties at different times. These witnesses in fact provided positive evidence that copying had not occurred in the light of their recollection of the timing of deliveries of mesh material from RAGS, of their own advertising of mesh in the trade press and suchlike. I shall return to this later.
- I have already mentioned that Elite sincerely believed their Micro Mesh was 'revolutionary' – at any rate when it came to the market in early Autumn of 2003. Thus, said Mr Chacksfield, here was the classic incentive to copy. I do not think that this position can be supported on the evidence. I accept that this particular size of micromesh (2mm) may not have been available before and in addition that it may indeed be a good product, but the comparative tests in trade publications which were in evidence hardly show it even to be primus inter pares .
- First, as Mr Tritton made clear, warp knitted mesh was on the angling market before the appearance of the Elite Micro Mesh and moreover, RAGS were well involved with it. Thus, the Gardner Anti-ladder Deluxe 4mm diamond mesh had been available since 1999 via RAGS. Again via RAGS, the Korda 3mm 'hex' went on the market. Both of these were knitted on a double needle bar Raschel machine. There was also a warp knitted item called CARPQUEST which I was told, had a Tricot weave. However, none of these are considered by anglers to be micromeshes. But there was a micromesh on the market in early 2003 : the Margin Micromesh. This was weft knitted. This material is of importance to the case because it was this which Mr Haynes sent to China to be copied and which in due course became known as Sample C. Examples of most of these meshes (and indeed others) are fixed to the exhibition boards which I have mentioned. I consider that Mrs Bailey's evidence on the topic of what was available before the Elite product appeared reflected more her enthusiasm for the Elite product than market reality.
- More serious were the comparative tests reported in the trade press. Much time was spent in particular on an article in Crafty Carper for December 2003. p38 entitled 'On Test', where the Elite product is referred to as 'Black Cat Miracle Micro Mesh'. It is put in the ring with inter alia the Gardner and Korda competition and a number of parameters were examined. The Elite product received this trouncing at the hands of the author on 'Mesh Size':
- In the circumstances, I have no reason to think that Elite's Micro Mesh is at best a better product in the micromesh range. The argument on motive to copy is not convincing.
- I have mentioned that the Elite product had its first public outing in August 2003 at Evesham – in a modest way. The evidence shows that it became commercially available later, in September 2003. Mr Haynes remembers this product being mentioned to him in conversation by a prospective employee during an interview in late August 2003. The same person sent Mr Haynes a sample of the Elite Mesh sometime in September 2003[31].
- It was common ground that it takes between 4 to 6 months to get a mesh from development into the UK market. Thus, assuming Mr Haynes acted at once on seeing the Elite product, one would not have expected it to have been offered to wholesalers in about January 2004 at the earliest. As a result of full evidence on the matter, I am satisfied however that the alleged infringement was in fact being offered to wholesalers by RAGS during September 2003.
- By the time the events leading to this litigation took place, the supply of PVA mesh to wholesalers had become a major part of RAGS' business – RAGS having some 80% of the UK market, I believe. Two types of mesh which are of interest to this case were being so offered for use for tie bags, both being offered before mid- 2003. The first was a 4mm diamond mesh which had been supplied to Gardner Tackle and is I think, still sold by them as Gardner Deluxe Anti-ladder. The second was 3mm hex mesh which was supplied to Korda Tackle and which is known as the Korda Three Seasons Funnel Web. Neither were micromeshes but interestingly, both were warp knitted, were designed in England for RAGS and both had anti-ladder qualities. Looking ahead, the 4mm diamond mesh in due course became what was known as RAGS' Sample A and the 3mm mesh, its Sample B.
- I have already mentioned the Margin Micromesh. The first micromesh material for making bait bags of which I am aware, was offered without RAGS' involvement. It had 1-2mm holes and was sold by another wholesaler, Margin Tackle Ltd as 'Margin Micromesh'. This came to the UK market in late 2002 or possibly, in early 2003 and was the response to a growing interest among carp anglers in smaller bait which was emerging at the time. It had a drawback however in that it laddered badly – in both directions, length and width. Though no one in the angling business paid any attention to the fact at the time, it was in fact a weft knitted material. Mr Haynes explained that he became aware of the Margin product in early 2003 and realising its potential, in the same month decided that RAGS too should now be in a position to offer a micromesh - but one that did not suffer from Margin's laddering problem: see generally Haynes' witness statement B/9/§§ 18-19 and 35.
- By late 2002 RAGS had decided to source all its mesh future requirements from China and, with this in mind, in due course it came into commercial contact with Fulian. The story of how it this came about is recounted by Mr Haynes. Fulian is basically a warp knitting company. They soon began to receive a number of samples from RAGS, with the essential request: 'Copy this' - which not surprisingly is a fact relied on by Mr Chacksfield. I was first taken through the 'copying ' of Samples A and B (see above) since this has a marginal bearing on the later 'copying' of Sample C. I should however say that in each case, a period of product development and assessment was involved which typically lasted for a few months. This was not therefore a straightforward case of 'overnight copying' as one sometimes sees in such cases; the evidence shows a back and forth exchange of development samples and comment by RAGS until finally a product was acceptable. Mr Haynes was cross-examined on his evidence as to these early days with Fulian but it had no material effect on his original evidence – which I therefore accept.
- By mid-February 2003 RAGS had also received a sample of Margin Micromesh from Fox International Group Ltd (D/1/43) and by late March 2003, RAGS had sent a photograph of this product to Fulian with instructions to copy it: D/1/53. This marks the start of the Sample C story. To sum up so far, Samples A and B (whose development was by then underway), were warp knitted, whilst Sample C was at that stage, weft knitted.
- Fulian's first attempts to replicate the Margin Micromesh led (not perhaps surprisingly) to mesh which laddered and which was unacceptable: see for example, D/1/66 and 67. It was at about this time (April 2003) that Fulian got in touch with their technical expert, Prof Zong who, seeing in Sample C a weft knit material, sought at first to carry out RAGS' instructions by trying to improve the material using this knit. He too was unsuccessful. It was only after a few more exchanges of e-mails that the penny dropped with the Professor that RAGS did not necessarily need an exact copy of Margin material after all; they were seeking a micromesh which appeared similar the Margin material but which did not (it was hoped) suffer from such serious laddering problems. It was at this stage (that is, towards the end of April 2003) that the Professor seems to have turned his mind for the first time to the possibility of employing warp knitting. The important evidence on this is to my mind quite clear. See
- By mid-May 2003, the Professor (working with his student Jackie Mao) had come up with a mesh which was satisfactory to RAGS: see D1/113 and 114. He achieved this by weaving a mesh based upon the 3 needle Atlas warp knitting pattern of which he was of course thoroughly familiar, this being one of the knitting patterns which he has described in his two textbooks (see above)[32]. By June, issues about laddering in Sample C had virtually ceased: see Zong's third witness statement §§25-29[33] . For example, on June 18 2003, RAGS' Mr Turner (of whom, more later) was able to report to Fulian D1/123:
- One laddering snag and some staining was noticed on the sample but it seems that this was the material that RAGS was happy to go into production; see also D1/149. With the background I have set out, this could not in my view, have been merely a Margin Micromesh lookalike. The design had changed in May. I shall record at this juncture that I accept the account of what occurred which was given by the Professor and in particular, that the explanation which he gave regarding his misunderstanding of Fulian's remit, was indeed the reason for his changing from weft to warp knitting in developing Sample C. There was in my judgment, no copying.
- Meanwhile by late April 2003, a double needle bar Raschel knitting machine had been delivered to Fulian to manufacture Samples A and B. Though such manufacture could not begin till July 2003 because the supply of commercial quantities of PVA yarn from Japan had not materialised, the machine was used to develop Samples A, B and C.
- Full-scale production of Sample C began around August 2003: see Zong third witness statement and D1/201.
- Having arrived at this conclusion, strictly speaking there is no need for me to go further into the topic of copying. However, it may perhaps be useful to consider a few of the many other topics which arose under this head.
- Mr Chacksfield characterised Professor Zong as an unreliable witness who was not telling the whole truth. As I reminded counsel at trial, the recent reference of the Court of Appeal in Markem Corp v Zipher Ltd [2004] RPC 761 at 784 to the House of Lords authority of Browne v Dunne (1894) 6 R 67 reminds one of the importance of specific cross-examination on a material point if the court is later invited to disbelieve a witness' evidence on that point. In the cross-examination of Prof Zong, I have not found it specifically put that he had copied the Elite design. I therefore decline to make the finding against him which Mr Chacksfield has invited me to make. As for Mr Haynes, there was not nearly enough material to enable me to make a finding that he had instigated Professor Zong to copy a sample of the Elite mesh. The combination of the evidence of these two key witnesses makes me think that there was no copying – even if not every point in the story was satisfactorily and conclusively explained.
- A considerable amount of time was spent on inferences to be drawn from the likely timing of the delivery and operation of warp knitting machines at Fulian around mid-2003. The position is I agree, unclear and the Professor, who was asked a number of questions about it, was unable satisfactorily to resolve the question. For a start, he was not always there; he worked several hundred kilometres from Fulian. He recalled that there was hot weather at the time but that apart, I cannot attach much weight (or indeed blame) to the evidence he gave. Production machinery could not I think have been of first importance to him at the time as his main role by then had finished; the acquisition of appropriate machinery was Fulian's job. The issue is further complicated by the fact that the evidence is largely based on e-mails which appear to confuse machines used for manufacturing of Samples A and B with what may have been used for making Sample C. In view of the conclusion to which I have come regarding the origin of the final design of Sample C, I do not propose to go into this aspect of the case further.
- There was also a good deal of evidence regarding what inferences might be drawn from the timing of the advertising and marketing of RAGS mesh – though, as further independent witnesses were called to deal with the matter, the point seemed to me considerably to diminish. Indeed, by the end, I consider that it much supported RAGS' case of independent design. Mr Haynes told me that when material was supplied from China, it is first sampled to wholesalers for evaluation. This happened with Sample C and in my judgment such sampling took place in the period September-November 2003: see for example D1/218 and T10/51, 52 and 96. Some of the evidence regarding the sampling of the RAGS product shows it to have possessed 'absolutely excellent' anti-ladder qualities[34]. I have already identified a number of witnesses apart from Mr Haynes, who gave relevant evidence concerning what happened when they first received samples of Sample C and I have no reason to disbelieve them: see § 82.
- The evidence shows substantial ordering and delivery of RAGS' new micromesh in the period October 2003-March 2004[35].
- To support his 'switchover' submission, Mr Chacksfield further relies on the fact that advertising of the RAGS mesh only got going in March 2004[36]. Moreover, the first photograph of RAGS' mesh appeared only in the April 2004 edition of Crafty Carper (though it transpired that the photograph was actually taken in February 2004). Mr Tritton had a response to this as well. First, RAGS does not advertise or promote its products to end users; that is done by wholesalers and others down the line. Several witnesses gave evidence however that mid-Winter is in any event the low season as far as carp anglers are concerned[37] and thus, the absence of advertising is to be expected. This is not in my view, a really significant point.
- Mr Chacksfield's 'switchover' (which according to him must have occurred around Christmas 2003) is not I think, supported by any evidence internal or external, of a change in the nature of the product. Moreover, there is nothing in the trade press to suggest such a change had taken place. A change of the kind proposed by Mr Chacksfield's submission would I feel, have been picked up in the specialist press.
- This is the only subsidiary topic under the issue of copying which I believe merits closer consideration. Mr Raymond Turner gave evidence for Elite[38] and I found him to be a fair witness. He is now retired having spent his working life with BOC. Thereafter, he found a job from June to September 2003 as RAGS' purchasing manager and in that capacity visited China in the second half of July 2003. I should say that by this time, RAGS seems to have opened an office of some sort in Shanghai to deal with their other suppliers in China[39]. Mr Turner in fact visited four suppliers-including Fulian[40].
- Mr Turner made it clear that he is not knowledgeable about either angling or weaving. By the time of his visit he was aware of the existence of Samples A, B and C but as he made clear, he recalls nothing about what these materials looked like. His task seems to have been to 'show the RAGS flag' with Fulian, to discuss problems and to reassure them of RAGS continuing interest and generally to encourage Fulian in its existing production commitments. He records that he had language difficulties with almost everybody he met. He did however ask to see the production machines for the ongoing RAGS products – and this is where the evidence on possible copying arises.
- The importance of this evidence lies in what Fulian showed him as a result of this request[41]. It is I think clear from his layman's description of what he saw that he was probably shown two circular weft knitting machines 'like pillar drills'. Though the machines had yarn in them he never saw them working; they were idle at all times and looked 'Heath Robinsonish'. Most significantly he was told that these machines were used to produce Samples A, B and C for RAGS. Since it is accepted by all that Samples A and B have at all material times been warp knitted, Fulian must have deceived him in telling him this.
- He also said that Fulian did not in fact start producing any product for RAGS until after he left China in late July.
- Mr Chacksfield naturally relied on this evidence to support his 'switch over' theory: this is evidence he said, that the RAGS commercial mesh Mark I was indeed originally weft knitted. I accept what Mr Turner told me but there is something odd about this incident and I am not content to rely on it for Mr Chacksfield's purpose. On its face, what Mr Turner was told was plainly wrong; the machines he was shown could not have been used to make Samples A or B. Why then did Fulian deceive Mr Turner? Counsel volunteered several explanations and the Professor was also asked for his opinion about it (though he could hardly assist). I need not attempt to resolve this issue but having considered the evidence I have been left with the impression that it was probably commercial caginess on Fulian's part. They were investing a good deal in the double needle bar Rashel machines specifically for the RAGS order. They would probably also have been aware that RAGS had (or could easily secure) other relevant contacts in China as potential competitors in the manufacture of meshes. I also felt that there was an unfamiliar cultural dimension to all this.
- In the circumstances, though I accept Mr Turners' evidence, it does not displace the view I have recorded regarding independent design.
- Though Mr Chacksfield advanced other facts and matters in support of his argument that copying was to be inferred and in particular, in support of of his 'switch over' theory, I have not found any need to recite them. RAGS have in my judgment. established their case on independent design
- In the light of the foregoing, the action fails. I shall in due course hear counsel on the appropriate form of order to be made and on the question of costs. In relation to the latter, I would invite counsel to address me in the light of recent authority on the effect of the refusal of parties to consider mediation as a possible means of resolving a dispute.
Introduction[1]
The Parties
Mediation
The Statutory Framework
s. 213 (1) Design right is a property right which subsists in accordance with this Part in an original design.
(2) In this Part 'design' means the design of any aspect of the shape or configuration (whether internal or external) of the whole or part of an article.
(3) Design right does not subsist in
(a) a method or principle of construction,
(b)…,
(c)…
(4) A design is not 'original'…if it is commonplace in the design field in question at the time of its creation .
s.226 (1) The owner of a design right in a design has the exclusive right to reproduce the design for commercial purposes –
(a) by making articles to that design'
(b)…
(2) Reproduction of a design by making articles to the design means copying the design so as to produce articles exactly or substantially to that design…
(3) Design right is infringed by a person who without the licence of the design right owner does or authorises another to do, anything which by virtue of this section is the exclusive right of the design right owner.
Article 3 (a) 'Design' means the appearance of the whole or a part of a product resulting from the features of, in particular, the lines contours, colours, shape, texture and/or materials of the product itself …
(b) 'Product' means any industrial or handicraft item …
Article 4(1) A design shall be protected by a Community design to the extent that it is new and has individual character
Article 5 (1) A design shall be considered to be new if no identical design has been made available to the public.:
(a) in the case of an unregistered Community design, before the date on which the design for which protection is claimed has first been made available to the public
(b)…
(2) Designs shall be deemed to be identical if their features differ only in immaterial details.
Article 6(1) A design shall be considered to have individual character if the overall impression it produces on the informed user differs from the overall impression produced on such a user by any design which has been made available to the public.
(2) In assessing individual character, the degree of freedom of the designer in developing the design shall be taken into consideration.
Article 7 For the purposes of applying articles 5 and 6, a design shall be deemed to have been made available to the public if it has been published following registration or otherwise, or exhibited , used in trade or otherwise disclosed before the date referred to before the date referred to in Articles 5(1)(a) and 6(1)(a) or in Articles 6(1)(b) or 7(1)(b) as the case may be except where these events could not reasonably have been known in the normal course of business to the circles specialised in the sectors concerned, operating within the Community...
…
Article 8(1) Community design shall not subsist in features of appearance of a product which are dictated solely by its technical function.
Article 11 (1) The scope of the protection conferred by a Community design shall include any design which does not produce on the informed user a different overall impression.
(2) In assessing the scope of protection, the degree of freedom of the designer in developing his design shall be taken into consideration.
Article 19 (1) A registered Community design shall confer on its holder the exclusive right to use it and to prevent any third party not having his consent from using it…
(2) An unregistered Community design shall however confer on its holder the right to prevent the acts referred to in paragraph 1 only if the contested use results from copying the protected design.
(a) The criteria for the subsistence of a UKUDR are not equivalent to those of a CUDR. Subsistence is more narrowly defined in the latter case, depending on whether the design is both new and has individual character.
(b) Copying on the other hand is the essential entrée to both causes of action and in this case, the evidence on copying is directed equally to both causes of action.
(c) Elite makes no distinction in the characterisation of its Mesh Design for the purpose of its UKUDR and CUDR cases.
(d) The relevant date for the existence of CUDR is about August 2003 when the Elite Micro Mesh was promoted at the Evesham Trade Fair (see above). The CUDR has now expired: see Article 11(b). Thus, the CUDR claim is and in practical terms always has been, primarily a 'damages only' claim.
(e) For reasons which will appear, if these rights subsist (and this is of course, hotly in issue), their ownership by Elite will not be disputed.
(f) The Elite Design is wholly functional in character; it has no 'eye appeal' or aesthetic attraction without its functional status. This is of course common enough in many UKUDR and CUDR cases. The sole function of the Elite product is to contain bait (of a particular size range) at all times which are of importance to the angler. With this in mind, the Elite Design was created as a micromesh only for the finer grades of bait. However, the purpose of the design is in certain respects irrelevant to the instant discussion; a 'design' must simply be the visible manifestation of an 'article' or 'product' falling within CDPA s 213(2) or Article 3(a) of the Regulation, respectively. The function of the product only comes into Article 8(1) of the Regulation as an element of possible exclusion (see below).
(g) The end user of all these bait bags and thus the notional person to whom the designs are addressed, is of course an angler of average experience - and perhaps even, average enthusiasm.
Defences and Infringement.
The Elite Design: Scope of Protection
'The claim concerns in particular the design of an original mesh ('the Mesh Design'). A sample of a product made to the Mesh Design is attached hereto as Annex 1.'
In order to explain and clarify the Claimants' case, the Claimants state as follows:
The Claimants claim design rights in the shape and/or configuration of the 3-dimensional structure made of the thread stitches (which term 'stitches' is used to describe the loop, links and twists[10] of thread) as found in part or parts of the Mesh (as to 'part or parts' see below).The claimants claim such design rights in the said structure as that structure is found in a part or parts of the Mesh, being
(a) the repeat of the Mesh (a repeat is a technical term for the smallest repeatable unit of a mesh); further or alternatively
(b) a 1cm x 1cm section thereof (as an arbitrary but small portion thereof).
For the avoidance of doubt, the Claimant does not claim any rights in
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Events before Trial
'is an exact copy of a 2 course Atlas warp knit pattern with an open and closed loop structure'
a pattern which has been known
'for centuries and is one of four basic warp knit patterns. The Elite Mesh Design is a 2 course Atlas warp knit pattern which is the most basic warp knit pattern.'
The Scope of the Elite Design. Photographs of magnified mesh parts
The weave of RAGS' Micromesh has slightly changed
The Elite Design and the 'accused' RAGS mesh compared.
(a) Having regard to the subject-matter, the fact that the parties' meshes are not identical has some resonance in RAGS' case on copying - and also on the issue of originality (see below),
(b) It must be borne in mind that the test for assessing infringement has nothing to do with the assessments yet to be made in relation to other issues, for example, the attack on the Elite Design based on 'functionality': see below. This is an independent assessment.
(c) An angler, indeed anyone, can see a marked similarity between the parties' products in issue. This similarity, in my judgment has the effect of causing the burden to shift to RAGS to prove that they did not copy: cf L.B. Plastics Ltd v Swish Products Ltd [1979] RPC551 at 624-625 per Lord Hailsham quoting Lord Wright in King Features Syndicate v O & M Kleeman Ltd [1941] AC 417 at 436.
The Experts.
Mr Adam Stevenson works for Karl Mayer Textile Machinery Ltd, the UK subsidiary of Karl Mayer Textilmaschinenfabrik GmbH of Obertshausen, Germany ('Karl Mayer'). Karl Mayer is the largest manufacturer of warp knitting machines in the world. Mr Stevenson has been in the textile and lace industry all his life though he joined Karl Mayer UK only in February 2005. Before then he attended a training course in warp knitting at Karl Mayer. He also has a basic knowledge of weft knitting. He was an excellent expert witness.
Mr Karl Mawby works for Monarch Knitting Machinery (UK) Ltd who manufacture weft knitting machines and are the only circular weft knitting machine manufacturers in the UK. He gave a confidential witness statement to back up certain evidence of Mr Stevenson regarding pricing and machine output. His evidence was evidently intended to form part of Mr Chacksfield's inferential case on copying. He was cross-examined and I found him to be a satisfactory witness but not, I think, a witness of central importance to any aspect of this case .
Mr Michael Litton. Has been involved in the field of textile design and manufacture since 1968 in various capacities and in various parts of the textile manufacturing industry. In 1985 he set up his own business Culzean Fabrics, in Scotland. Mr Litton has very considerable experience of warp knitting techniques and warp knitting machines, particularly double needle bar Raschel warp knitting machines. These machines, of which I shall have more to say later, are the machines upon which tubular warp-knitted material such as the meshes here in issue, are woven. He is also an experienced textile designer and has stated in his witness statement "There is very little relating to industrial textile design, which I have not come across in my 42 years plus in the industry". Mr Litton designed the Elite Mesh for Elite and I shall in due course consider that evidence in connection with the issue of originality. He is therefore also a witness of fact. He was in my view, a first class expert witness.
Professor Zong Ping Sheng.
(a) Professor Zong is Professor in Textiles at the School of Textiles and Garments at the Southern Yangtse River University, Wuxi City, China. He also holds extra-academic appointments including that of director of research and development at Fu-Lian Warp Knitting Industrial Co Ltd, Guang Zhou (hereafter 'Fulian'), the manufacturers of RAGS' alleged infringing mesh. His place of work is, so I was told, many hundreds of kilometres from the Fulian factory and his relationship with them seems to be essentially consultative rather than 'hands on'. He visits Fulian a few times a year. He[18] was however directly concerned with the development of at least four of RAGS' woven products[19] and gave evidence of fact both in his three witness statements and viva voce. Though Prof Zong can read some English, his level of understanding of spoken English is not good. All the Professor's evidence was therefore given via interpreters. I think some allowance must be made for this in relation to his input into the case both before and also as he gave evidence.
(b) Professor Zong also gave evidence as an expert in knitting. Professor Zong's forte is in warp knitting, a field in which he has had over 50 years experience. Nonetheless, his general experience in knitting seems to be far more extensive. He is author of two textbooks on knitting, relevant extracts from which were translated and together with the Mandarin originals, are before the Court, The first is Textbook for Textile Colleges: Chapter III Warp Knitting (House of the Textile Industry, China,1980) and the second is Knitting Engineering Handbook: Warp Knitting (Chinese Textile Press, China,1997). Fig 1-3-9 on page 13 of the latter textbook is pleaded in the amended defence and is a lapping diagram for (so I have noted) a three needle Tricot warp weaving pattern[20]. As he later explained[21], on page 11 of the book is an illustration of the lapping diagram for another warp weave which features strongly in this case: the four course (in the UK called the 'two course') three needle Atlas warp knitting pattern – though this difference in nomenclature is not identified as such in the amended pleading.
(c) I sensed that the Professor, who is an elderly person, was unprepared for what was expected of him as a witness in IP litigation in England. Cultural differences coupled with some apparent diffidence led at times to confusion. Thus it is not easy to assess his reliability as a witness of fact with the accuracy I would have liked. For example, I gained the impression that he had been made aware of the 'sensitive' areas of the case yet experienced difficulty in cross-examination in deciding how to best to deal with matters of detail. I do feel confident however that Prof Zong was always doing his best to assist the court.
(d) I have no doubt however that the Professor is a considerable expert on warp knitting and also that he had a reasonably accurate memory of what happened during the development of Sample C in the Spring and Summer of 2003 - so far as he was involved. RAGS was criticised by Mr Chacksfield for not having called witnesses from Fulian[22] to assist in elucidating the evidence on copying. I was not impressed by this criticism. Professor Zong was in charge of the development. The evidence adduced on this topic was in my view in any event quite disproportionate both in quantity and quality to its purpose (see below). Nonetheless in similar circumstances, the advisors to parties in litigation, finding themselves in similar circumstances, might consider making more use of video conferencing facilities when witnesses reside overseas.
(e) The Professor made three witness statements, the first two having been executed in China. No doubt as a result, the exhibits to these witness statements are confusing, their identification having been apparently made by a phonetic rather that alphabetic notation.
Warp and weft knitting: Some basic facts
(a) those in the fishing tackle business know next to nothing about knitting and weaving and rely on people in the knitting industry for guidance in this respect, and
(b) that those in the knitting industry were at all times well aware that warp knitted textiles had greater integrity and less propensity to ladder.
Atlas warp knitting
UKUDR and Originality
UKUDR: Commonplace in the design field in question?
CUDR: Novelty and Individual Character?
The Statutory Functional Exclusions
UKUDR: Method or Principle of Construction?
"To say that a shape is to be denied registration because it amounts to a mode or principle of construction is meaningless. The real meaning is that no design shall be construed so widely as to give to its proprietor a monopoly in a mode or principle of construction. What he gets a monopoly for is one particular, individual and specific appearance. If it is possible to get several different appearances which all embody the general features which he claims, then those features are too general and amount to a mode or principle of construction."
"The fact that a special method or principle of construction may have to be used in order to create an article with a particular shape or configuration does not mean that there is no design right in the shape or configuration."
(a) the fact that there were no dimensional limits to the size of the mesh repeats in the Elite Design; anything from a visibly open net-like structure to a cloth consisting of tiny unit repeats invisible to the naked eye was included, and
(b) the multitude of actual appearances of mesh which according to Elite, allegedly embody the Elite Design. He pointed to the fact that both parties had had to rely upon magnified photographs of repeat units of the mesh for various purposes during the course of the action (see above).
CUDR: 'Features of appearance … dictated solely by its technical function'
"Technological innovation should not be hampered by granting design protection to features dictated solely by a technical function. It is understood that this does not entail that a design must have an aesthetic quality…."
"will only apply to a design that is the only design by which the product in question could perform its function or whether it operates whenever a design was as a matter of fact dictated solely by the function of the product even though it was not the only design that was capable of allowing that function to be performed".
Copying
Approach
Witnesses
A Conspiracy?
Mr Colin Rooke who, over part of the relevant period worked for RAGS sourcing products from China.- but does no longer;
Mr Lu Shao Yi[29], immediate successor to Mr Rooke;
Mr Clive Tyldesley a director of CJT, a major angling products wholesaler;
Mrs Michele Gardner a director of another major wholesaler, Gardner Tackle Ltd;
Mr Richard Farnan formerly a sales and marketing employee of Gardner Tackle Ltd from July 2002 to October 2005;
Mr Aytach Ibrahim of Margin Tackle another wholesaler, whose mesh products feature in the case. Mr Ibrahim was not in fact cross-examined.
"…this does not mean that whereas serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established. Ungoed-Thomas J expressed this neatly in In re Dellow's Will Trusts [1964] 1 WLR 451 , 455 : ' The more serious the allegation, the more cogent is the evidence require to overcome the unlikelihood of what is alleged and thus to prove it.'"
'Must have'?
"The Black Cat was the most disappointing, as its promising-looking fine weave proved ineffective at containing old bluebottle larvae. The maggots began escaping before the material could even be knotted."
Under 'Ladder Resistance' the author merely notes that
"Each of the brands proved extremely ladder-resistant."
Significant timings.
The Design Story
(a) Prof Zong's first witness statement § 8, his second witness statement §§ 17-19 and T7/79, and
(b) Mr Haynes' e-mails at D/1/67 and 108..
"Thank you for Sample C received to day. We are very pleased with the fit of the sample over the tube and the general quality of the mesh."
Other topics relating to copying
What did Mr Turner see?
Conclusion
Note 1 Notation of references: B2/11/12 or § indicates respectively, bundle, tab, page or paragraph. T/4/11 indicates Transcript Day 4 page 11. [Back] Note 2 A spherical bait which is flavoured and floats just above the main bait and hook. [Back] Note 3 Referred to in the case as ‘hex’. [Back] Note 4 In fact it was again branded by wholesalers further down the chain with names such as ‘Black Cat’. [Back] Note 5 See Mrs Bailey, witness statement I B/1/§ 50-53 [Back] Note 7 Further samples of the RAGS material on loading tubes are at C3/26,28 and 30. Photographs of the repeat unit in magnified mesh are to be found at C4/1/4 and 4a [Back] Note 8 There was argument as to whether it could be inferred from the pleadings – but this is obviously unsatisfactory. [Back] Note 9 A/5/36 Request 3 [Back] Note 10 The following footnote (1) is in the pleading:
‘For the avoidance of doubt, all of the said terms are used as nouns:i.e. to refer to the particular shape and configuration of a loop shaped stitch, not the fact that the process of forming a particular stitch uses a looping movement, likewise for links and twists.’ [Back] Note 11 Further samples of the Elite Mesh are to be found at C2/13-15. A blown-up photograph of the mesh is at C4/1/2 [Back] Note 12 See Regulation Art 11 supra. [Back] Note 13 § 5.3 which related to an alleged example of woven material, was later removed. As will be seen, this is of some importance to the ‘commonplace’ case. The particulars thus cover warp knit pattern proposals in documentary form only. [Back] Note 14 B/2 and T5/150-160 [Back] Note 15 T6/106. It had improved anti-laddering properties. [Back] Note 18 Assisted by a research student, Xia Feng Lin (referred to as Jackie Mao). [Back] Note 19 Samples A-D. Of these, Sample C is said by RAGS to be the development precursor of its mesh material now in issue. [Back] Note 20 C4/8/121. The 3 needle Tricot weave is one of four basic warp knitting patterns. [Back] Note 21 Third witness statement B/22/§15. is another of the four basic warp knitting patterns. [Back] Note 22 and the research student. [Back] Note 24 See footnote 13 [Back] Note 25 As indeed have many others. [Back] Note 26 Copinger and Skone-James The Law of Copyright (15th Edn) § 13-55 [Back] Note 27 A photograph of Sample C is presented as an exhibit to the Professor’s first witness statement. There was some doubt however as to the date of this sample. [Back] Note 28 As already noted, I accept that Mr Haynes knew nothing of relevance on the topic of weaving anyway. [Back] Note 29 Mr Lu’s English was adequate and he did not require an interpreter. [Back] Note 30 As opposed to further Margin Micromesh which was required by certain customers during the relevant period who could not wait for delivery of the new material : see §87. [Back] Note 31 Haynes witness statement §§ 68 and 75. [Back] Note 32 This was also being used at his Institute to make small quantities of the specialist surgical mesh to which I have referred earlier : T7/97 [Back] Note 33 It will be recalled that no material is ladder-proof.
[Back] Note 34 The evidence of Mr Richard Farnan then of Gardner, is particularly enthusiastic on the all round excellence of this mesh: see his witness statement B/15 and T10/96-97 [Back] Note 35 See Mr Lu’s order book: C4/256-257 and T10/27-28. See also D2/331 [Back] Note 36 Though I think that CJT’s sales began on 19 December 2003 without advertising. [Back] Note 37 See Mr Barker: T5/85 [Back]