Catnic Components Ltd and Another v Hill and Smith Ltd
| Jurisdiction | UK Non-devolved |
| Judge | Lord Diplock,Lord Keith of Kinkel,Lord Scarman,Lord Lowry,Lord Roskill |
| Judgment Date | 1980 |
| Judgment citation (vLex) | [1980] UKHL J0101-2 |
| Year | 1980 |
| Court | House of Lords |
| Date | 1980 |
[1980] UKHL J0101-2
Lord Diplock
Lord Keith of Kinkel
Lord Scarman
Lord Lowry
Lord Roskill
House of Lords
My Lords,
This appeal concerns a claim by the appellants ("Catnic") for infringement of a simple but successful patent of which they are the registered proprietors for galvanised steel lintels for use in spanning the spaces above window and door openings in cavity walls built of bricks or similar constructional units. Since lintels are supported only at either end by the brick courses on which they rest and must themselves support the superimposed brick courses above the window or door space that they span, rigidity and strength are necessary characteristics. Heavy beams of timber or heavy-gauge metal girders possess these characteristics and had long been used for this purpose. In the patent in suit the necessary strength and rigidity was obtained by adopting a box-girder structure with consequent lightness, economy of material, and ease of handling.
The simplest way of explaining the invention is by reproducing figure 1 of the complete specification, which is of a vertical section through the
Fig. 1
lintel, showing the outer and inner courses of the cavity wall. The lintel can be made in two modules, a three-course module (as shown) where the height between the upper and lower horizontal plates is equivalent to three courses of bricks and mortar and a two-course module which the height is equivalent to two courses only.
Of the claims in the specification it is only necessary for present purposes to reproduce the first.
"1. A lintel for use over apertures in cavity walls having an inner and outer skin comprising a first horizontal plate or part adapted to support a course or a plurality of superimposed units forming part of the inner skin and a second horizontal plate or part substantially parallel to the first and spaced therefrom in a downward vertical direction and adapted to span the cavity in the cavity wall and be supported at least at each end thereof upon courses forming parts of the outer and inner skins respectively of the cavity wall adjacent an aperture, and a first rigid inclined support member extending downwardly and forwardly from or near the front edge adjacent the cavity of the first horizontal plate or part at an intermediate position which lies between the front and rear edge of the second plate or part and adapted to extend across the cavity, and a second rigid support member extending vertically from or from near the rear edge of the first horizontal plate or part to join with the second plate or part adjacent its rear edge."
The complete specification was filed on the 29th December 1969 and published on 6th December 1972. Lintels manufactured in accordance with the patent quickly achieved considerable success upon the market. At about the beginning of 1974 the respondents ("Hill and Smith") who are old established fabricators of galvanised steel products, and had for some time past been carrying out large contracts for the manufacture of crash-barriers for roads, foresaw a contraction of the demand for this particular product and decided to prepare to enter the market for builders' products and, in particular, for galvanised steel lintels. With this in view they examined trade brochures issued by various manufacturers of steel lintels, including one published by Catnic. They decided that the Catnic lintel was the best; they were unaware that it was the subject-matter of a patent; so they copied it and manufactured it.
Your Lordships are not concerned with the first type of galvanised steel lintel (referred to in the courts below as "DH2") which Hill and Smith manufactured in consequence of what they had seen in Catnic's brochure. It was the subject of a writ issued by Catnic in March 1975 claiming an injunction and damages for infringement of patent, and this was subsequently amended to add a claim for damages for breach of copyright in certain of Catnic's drawings. DH2 was held at the trial by Whitford J. to infringe the patent and there was no appeal against this part of his judgment. He also found that there had been no breach of copyright, and, although this finding was contested unsuccessfully by Catnic in the Court of Appeal, no appeal has been brought to your Lordships' House from their endorsement of the learned judge's finding. Service of that writ, however, alerted Hill and Smith's Managing Director, Mr. Hodgetts, to the danger of infringement of Catnic's patent by galvanised steel lintels of the type DH2 that they were then engaged in introducing on the market. Coincidentally, one of their first customers had complained that the Hill and Smith lintels, (in which the lower horizontal plate did not extend rearward beyond the point at which the vertical back plate joined it) presented difficulties in plastering the soffit. Hill and Smith then produced a modified design (referred to in the courts below as "DH4") which became the subject of the second writ. It was substantially in the form sketched below.
Between this design and that described in Claim 1 of the patent the difference which is relied upon by Hill and Smith to save it from being an infringement, is that the back plate is not precisely vertical but is inclined at a slight angle to the vertical, viz 6° in the case of the three-course
Fig. 2
module and 8° in the case of the two course module. Referring to the circumstances in which this modification to the previous design took place, the learned judge said:
"I am in no doubt that the consideration chiefly working on Mr. Hodgetts' mind was avoidance of infringement, although it did meet [the customer's] complaint, and I accept that this was a further consideration operating in Mr. Hodgetts' mind".
I apprehend, however, that your Lordships are concerned not so much with the motives for the alteration as with the effect of it. Did the substitution of a back plate that was slightly inclined to the true vertical for one that was precisely vertical change what the patentee by his specification had made an essential feature of the invention claimed having regard to the patentee's description of the back plate in Claim 1 as "extending vertically"?
The invention is a simple one; to understand what it does and how it works calls for no great technological or scientific expertise. It is designed for use by builders engaged in ordinary building operations; they...
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