Kwikbolt Ltd v Airbus Operations Ltd
| Jurisdiction | England & Wales |
| Judge | Hacon |
| Judgment Date | 25 March 2021 |
| Neutral Citation | [2021] EWHC 732 (IPEC) |
| Court | Intellectual Property Enterprise Court |
| Docket Number | Case No: IP-2018-000199 |
| Date | 25 March 2021 |
[2021] EWHC 732 (IPEC)
HIS HONOUR JUDGE Hacon
Case No: IP-2018-000199
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
INTELLECTUAL PROPERTY ENTERPRISE COURT
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
Mark Vanhegan QC and Heather Lawrence (instructed by Williams Powell) for the Claimant
Henry Ward (instructed by Allen & Overy LLP) for the Defendant
Hearing dates: 9–12 February 2021
Approved Judgment
HIS HONOUR JUDGE Hacon
Introduction
The Claimant (“Kwikbolt”) is a small company in the business of designing and making fasteners used in the aerospace and defence industries. It is the proprietor of UK Patent No. GB2455635B (“the Patent”) which claims an invention entitled “Removeable blind fastener”. “Blind” is a term of art in the context of fasteners, meaning that the fastener can be fitted from one side of the workpiece, essential if the technician only has access to one side. I will later say more about “removeable”.
The Defendant (“Airbus”) is the well-known aircraft manufacturer.
Some of Airbus's assembly lines use removable blind fasteners made by Centrix Inc (“Centrix”), a manufacturer of aerospace products. More specifically, Airbus uses a product called the Centrix Free Spin Fastener (“the Centrix Fastener”) in the assembly of A320 and A350 wings at Broughton in North Wales.
Kwikbolt alleges that the use and keeping of Centrix Fasteners by Airbus has infringed the Patent. Airbus counterclaims, alleging that the Patent is invalid for lack of novelty, lack of inventive step and insufficiency.
Mr Mark Vanhegan QC and Dr Heather Lawrence appeared for Kwikbolt, Mr Henry Ward for Airbus.
The Evidence of Travis McClure
Travis McClure was Airbus's witness of fact. He is the Chief Executive Officer at Centrix. Mr McClure's evidence should have been limited to a short point. Airbus relied on an allegation of prior use of the invention by reason of the marketing of a fastener called the “E-Nut”. At the CMC Airbus was given permission to file evidence from a witness of fact to deal with the question whether the E-Nut was publicly available before the priority date. Mr McClure gave evidence about that issue.
In its skeleton argument for trial, Kwikbolt admitted that the E-Nut had been publicly available before the priority date. It was argued in the skeleton that this issue therefore fell away and that Mr McClure's evidence as a whole should be disregarded.
There was a lot of force in that. My reservation was that among the more expansive sections of Mr McClure's evidence, he had challenged assertions of fact made by Mr McKay about the E-Nut. The E-Nut was referred to by both experts in their reports by way of discussion of the common general knowledge. I was persuaded at the start of the trial that unless at least those parts of Mr McClure's witness statement remained in evidence, the balance of evidence regarding the structure and extent of use of the E-Nut might be unfairly skewed in Kwikbolt's favour. I allowed his witness statement to remain in evidence and invited Mr Vanhegan to cross-examine Mr McClure to the extent that he believed any of McClure's evidence still to be relevant.
This led to the next bone of contention. It concerned Kwikbolt's use of a bundle of documents for the cross-examination of Mr McClure. I was told that this was not served until the morning of the cross-examination.
Mr Ward referred to the Patents Court Guide which contains the following paragraph:
“14.9 Where any party wishes to put documents to a witness in cross-examination, these should generally be supplied to the witness sufficient time in advance so that the witness has time to consider them before giving evidence. Generally, documents for cross-examination should be supplied at least 48 hours before the witness gives evidence. However, more time may be required depending on the nature and number of the documents intended to be relied upon. The number of documents should be kept within manageable bounds. In the case of documents over 4 pages long, there should be an indication of which parts will be put to the witness.”
Mr Vanhegan protested that paragraph 14.9 applies only to experts. I see nothing in its wording to confine its application in that way.
There is no equivalent rule in the IPEC Guide because the use of documents in an IPEC trial is governed by the more general provision contained in CPR 62.23(2): save in exceptional circumstances the court will not permit a party to submit material in addition to that ordered in the CMC.
It is sometimes helpful for the court and the witness to have new documents put in cross-examination, such as a diagrammatic illustration of a process or some other document that simplifies and speeds the giving of evidence, particularly where the content of the document is familiar to the witness. There can be other types of exceptional case in which the court will allow the use of new documents in cross-examination even if the contents are new.
When the use of Kwikbolt's bundle was challenged in the course of Mr McClure's cross-examination, I told Mr Ward that I would allow Mr Vanhegan to put questions by reference to these documents but that I would be very receptive to any argument that either the witness or Mr Ward had not had the opportunity to investigate the document in question, adding that if this were the case I may well disallow the question.
Only a few pages from the bundle were put to Mr McClure. Mr Ward raised no objection to any of them so the cross-examination went ahead uninterrupted on that score. In Mr Ward's written closing submissions, however, he repeated his objection to the bundle, again criticising its very late service. Mr Vanhegan gave me no direct answer when asked why the bundle had been served at such short notice.
For the most part Mr McClure was a good witness, giving clear answers without prevarication. The exceptions were his answers to questions put by reference to the few documents selected from the cross-examination bundle. I do not draw any conclusion from those answers about Mr McClure as a witness or otherwise. The short point is that none of Mr McClure's evidence proved to be relevant to anything I have to decide.
However, litigants should be aware that in this court any party intending to rely on a cross-examination bundle should give the witness adequate notice of the bundle, which will normally be at least 48 hours, and should inform both the court and the opposing side of the exceptional reasons which justify the late introduction of new documents into the case.
The Experts
Douglas McKay
Kwikbolt's expert was Douglas McKay. Mr McKay worked in the aircraft manufacturing industry for 27 years from 1988 until his retirement in 2015. He held positions as an engineer successively in three Texan corporations, from 1998 in the aerospace industry, first at Vought Aircraft Industries Inc and from 2005 at Lockheed Martin Aeronautics Company. One of Mr McKay's tasks at Lockheed was leading efforts to identify and develop a more suitable temporary fastener for use on F-35 wing assembly lines.
Mr Ward, counsel for Airbus, could not have been more approving of Mr McKay as a witness in cross-examination, describing him as a completely straightforward witness, very knowledgeable, doing his best to help the court. I agree. The sting in the tail of Mr Ward's submission was that by contrast Mr McKay's reports were full of factual inaccuracies, some corrected after the relevant report had been sworn and others not, and that Mr McKay had in cross-examination abandoned every important proposition made in his report in relation to the Patent and the prior art. Mr Ward said that Mr McKay's reports had been prepared in a way that did not reflect his honest views and should be treated with the highest degree of scepticism. Before commenting on this I will discuss Mr Jack's evidence.
Milton Jack
Milton Jack was Airbus's expert. His career was spent mostly as an employee of The Boeing Company, working as an engineering technician. He began at Boeing in 1966 and retired from that company in 2002. There was a break from Boeing between 1970 and 1977, during which Mr Jack spent time at the Lockheed Aircraft Corporation, North American Rockwell, the Northrop Corporation and Mitsubishi Heavy Industries. After he retired as an employee, Mr Jack founded his own consulting company, OMT Inc (he said that it stood for Old Man's Thoughts), through which he provided consultancy services to Boeing. Throughout his career Mr Jack worked with temporary and permanent fasteners used in the aerospace industry.
Mr Vanhegan's submissions on Mr Jack as a witness mirrored those of Mr Ward on Mr McKay: he was a good witness in cross-examination doing his best to help the court, but his report was not satisfactory. Each legal team was, by implication, accusing the other of having an overbearing influence on its expert.
I agree in full with the commendation of both Mr McKay's and Mr Jack's conduct in cross-examination. Both experts gave honest and helpful evidence. However, I think it is possible that the preparation of each of their respective reports was steered by the relevant legal team with an excessively firm hand on the wheel. More than is usual, the evidence given in cross-examination by the experts was likely to be more reliable than that given in a report.
The Patent
The Patent has a filing date of 1 February 2008 and no priority date....
To continue reading
Request your trial
-
A Ward Attachments Ltd v Fabcon Engineering Ltd
...court. 25 Although I understand the point that Mr Turner is trying to make (which was also made by HHJ Hacon at [22] of Kwikbolt Limited v Airbus Operations Limited [2021] EWHC 732 (IPEC) that the preparation of expert reports in that case “ was steered by the relevant legal team with an e......
-
J. C. Bamford Excavators Ltd v Manitou UK Ltd
...in his subparagraph (i), the “invention” he refers to in the three reformulated questions is the inventive concept. 168 In Kwikbolt Limited v Airbus Operations Limited [2021] EWHC 732 (IPEC) I suggested that focussing on the variant by reference to the integers of the claim can be a useful......
-
Back To Basics - A Review Of Patent Cases In 2021
...Harris, January 2021 2 Actavis UK Limited & Ors v Eli Lilly and Company [2017] UKSC 48 3 Kwikbolt Limited v Airbus Operations Limited [2021] EWHC 732 (IPEC) (25 March 2021) HHJ Hacon 4 Catnic Components Ltd & Anr v Hill & Smith Ltd [1982] RPC 183 5 Improver Corp v Remington Consumer Product......
-
Back To Basics - A Review Of Patent Cases In 2021
...Harris, January 2021 2 Actavis UK Limited & Ors v Eli Lilly and Company [2017] UKSC 48 3 Kwikbolt Limited v Airbus Operations Limited [2021] EWHC 732 (IPEC) (25 March 2021) HHJ Hacon 4 Catnic Components Ltd & Anr v Hill & Smith Ltd [1982] RPC 183 5 Improver Corp v Remington Consumer Product......