Electrolux Northern Ltd and Another v Black & Decker
| Jurisdiction | England & Wales |
| Judgment Date | 25 April 1996 |
| Date | 25 April 1996 |
| Court | Chancery Division |
Chancery Division
Before Mr Justice Laddie
Patents - infringement - disclosure of experiments
Disclosure by a party to a patent action, that he had conducted other experiments, on which he had chosen not to rely, should not normally lead a court to draw any inference as to what such experiments might have proved.
Mr Justice Laddie so held in the Patent Court of the Chancery Division when in dismissing: (i) an action by the first plaintiff, Electrolux Northern Ltd, registered proprietor of European Patent (UK) No 0,037,871, and by the exclusive licensee, Electrolux Outdoor Products Ltd, claiming infringement of that patent by the defendant, Black & Decker, and (ii) a counterclaim by the defendant for revocation of that patent on the ground of obviousness.
In Honeywell Ltd v Appliance Components LtdUNK (unreported, February 22, 1996), Mr Justice Jacob in the Patent Court had said: "I think it highly desirable in future, if experiments are conducted which are not relied upon, the other party is told of this … it can hardly be right that a party can put forward an argument (whether supported by experiments or not) and suppress experiments he has conducted which do not support that argument or indeed undermine or destroy it. I do not say that experiments not relied upon should be placed before the court. But the opposite party should know about them…"
Mr Christopher Floyd, QC and Mr Iain Purvis for the plaintiffs; Mr Antony Watson, QC and Mr Daniel Alexander for the defendant.
MR JUSTICE LADDIE said that our system proceeded on the basis that each party put before the court the material which it believed supported its case or undermined its opponent's.
Even if advised that its case was weak, no party was obliged to call witnesses, whether of fact or of expertise, hostile to it. Experiments in patent actions should be considered against that background.
In many cases, this was one such, many experiments failed to support the propositions for which they were advanced or were shown to have no probative value either way.
Frequently, experiments were discarded for a variety of reasons: for example, "not clear enough"; "experimental technique too vulnerable"; "a better or simpler way of proving the point"; "appear to support the other side's case and it would take much complicated evidence to prove such appearance was misleading"; or "the expert concerned would make a...
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