Lufthansa Technik AG (a company incorporated under the laws of the Federal Republic of Germany) v Astronics Advanced Electronic Systems (a company incorporated under the laws of the state of Washington, USA)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Morgan |
| Judgment Date | 21 August 2020 |
| Neutral Citation | [2020] EWHC 2296 (Pat) |
| Court | Chancery Division (Patents Court) |
| Date | 21 August 2020 |
| Docket Number | Claim Nos: HP-2017-000085 & HP-2019-000019 |
[2020] EWHC 2296 (Pat)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
INTELLECTUAL PROPERTY LIST (ChD)
PATENTS COURT
Royal Courts of Justice
Rolls Building, Fetter Lane, London, EC4A 1NL
Mr Justice Morgan
Claim Nos: HP-2017-000085 & HP-2019-000019
Hugo Cuddigan QC and Christopher Hall (instructed by Jones Day) for the Claimant in both actions
Piers Acland QC and Stuart Baran (instructed by Hogan Lovells International LLP and Pinsent Masons LLP) for the Defendants in both actions
Written submissions following hand down of judgment
Judgment Approved by the court for handing down
This judgment is handed down by the judge remotely by circulation to the parties' representatives by email and release to Bailii. The date for hand-down is deemed to be 21 August 2020.
Introduction
This judgment deals with three matters which have been raised by the parties following the hand down of my judgment in this case on 22 July 2020 (“the first judgment”). The neutral citation of the first judgment is [2020] EWHC 1968 (Pat). The three matters relate to: (1) the form of the order to be made; (2) an issue as to costs; and (3) an application by the Defendants for permission to appeal to the Court of Appeal. I received written submissions in relation to these three matters.
The form of the order
The form of the order is largely agreed and I will make an order as drafted in relation to agreed matters. The order I will make will also reflect the findings contained in this judgment on the issue as to costs and the application by the Defendants for permission to appeal. The only other matter which I need to refer to is that the Claimant wishes the order to provide for there to be permission to apply in relation to the determination of what are defined in the order as “the Adjourned Issues” if that should prove to be necessary following a successful appeal by the Defendants. It is not said by the Claimant that, absent a successful appeal, it might wish to seek a determination of the Adjourned Issues in order to allow it to argue for a wider remedy than the remedy it will be entitled to on the basis of the findings as to infringement in the first judgment.
I consider that it is not appropriate for the order to provide for permission to apply in relation to the Adjourned Issues following a successful appeal by the Defendants. The order I will make will record the position following my decision at first instance. In accordance with that decision the Adjourned Issues do not need to be determined. If there were to be a successful appeal against my order, then the Court of Appeal can be asked to make whatever order is appropriate to give effect to the consequences of its judgment on appeal. It is not for me to include anything in the current order providing for what those consequences might be.
In any case, I do not see how a successful appeal by the Defendants would make it appropriate to determine the Adjourned Issues. The Grounds of Appeal which have been put forward by the Defendants challenge the validity of the Patent. If their appeal were to succeed, there would be no question of infringement. There is no separate appeal as to infringement if any claim in the Patent were held to be valid.
The issue as to costs
In accordance with my judgment, the Claimant has succeeded and the Defendants have failed in this litigation. The Claimant has established that its Patent was valid and has been infringed by all of the Defendants.
In the light of the Claimant's success in the litigation, the Defendants agree that in general terms the Claimant should recover its costs of the litigation. This is subject to two qualifications, one of which is agreed and the other of which is in dispute.
The first qualification, which is agreed, is that the Claimant should not recover 2% of its costs because it failed in its claim that the Defendants had infringed claim 7 of the Patent. As that matter is agreed I will give effect to the parties' agreement and I will not consider what I would have decided if that point had not been agreed.
The second qualification put forward by the Defendants but not agreed by the Claimant is that the Claimant should not recover the costs of certain issues which it had raised in support of its case that each of the Defendants had infringed the Patent.
As explained in the first judgment, I was able to deal with the question of infringement by each of the Defendants in a relatively straightforward way. By the time of the trial, Astronics admitted facts which made it liable for infringement within section 60(2) of the Patents Act 1977. By the time of the trial, Safran accepted that it had committed direct infringement within section 60(1) of the Patents Act 1977. Accordingly, in the first judgment, the only allegation of infringement which needed to be considered was the allegation of infringement by Panasonic and that was resolved on the straightforward basis that Panasonic was a joint tortfeasor with its customers, committing a direct...
To continue reading
Request your trial