Polymer Logistics (Israel) Ltd v DS Smith Plc and Another
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Mann |
| Judgment Date | 07 March 2013 |
| Neutral Citation | [2013] EWHC 735 (Pat) |
| Court | Chancery Division (Patents Court) |
| Docket Number | Case Nos: HC 12 D 04157, HC 12 C 04589 |
| Date | 07 March 2013 |
[2013] EWHC 735 (Pat)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
PATENTS COURT
Royal Courts of Justice
The Rolls Building
7 Rolls Building
London EC4A 1NL
Mr. Justice Mann
Case Nos: HC 12 D 04157, HC 12 C 04589
Mr. Richard Davies (instructed by Beresford & Co) for the Claimant
Mr. Andrew Lykiardopoulos (instructed by Bird & Bird) for the Defendant
JUDGMENT ON SPEEDY TRIAL APPLICATION
The application before me this morning is an application by the Claimants in one set of proceedings, that is to say Polymer Logistics (Israel) Ltd., who are also one of the Defendants in other proceedings being tried with it, for a speedy trial in both sets of proceedings taken together.
It is unnecessary for me to distinguish between the individual parties on each side of the record in these proceedings. I can simply confine myself to calling the Claimant in the current proceedings and its associated company Polymer, and the other side I will call DSS.
Polymer started its proceedings first, claiming infringement of its patents. Its patents concern a system in which, without wishing to do any injustice to the inventor, the concepts of a pallet and a dolly are combined so as to produce something which has the feature of a pallet in that it can remain stable whilst bearing a stacked load but, when the occasion requires, also has wheels which can be flipped down or out so it can be moved as a dolly. It is said that this sort of concept has a considerable attraction to those involved in logistics, and particularly the logistics involved in food in supermarkets.
DSS have a similar patent and a similar product. Polymer claim that DSS's product, called K-Roll, infringes. Polymer, having started its proceedings, DSS then started its own infringement proceedings as against Polymer some time afterwards. Both those proceedings claimed infringement of the patent or patents owned by the parties. Both those sets of proceedings were started in Patents County Court, but last year were transferred to the High Court so they could be tried together there.
On 30th January of this year an order for directions was given. It contains the usual sorts of directions that one would expect of two patents actions and the trial date was specified to be not before February 2014. I am told the actual trial date is to be March 2014.
Now, by an application made slightly less than one month later on 27th February 2013, Polymer seeks to expedite that trial date and seeks the expedition of the intervening directions. It seeks a trial in the second half of July of this year. The reason for that is said to be because it fears that if a trial does not take place until March next year, that will operate in a manner which is seriously unfair to Polymer because it fears that by then market standardisation will have brought about a situation in which there is a risk that there will be a standardisation of products in favour of DSS's K-Roll product, which will mean that Polymer will not then be able to penetrate the market. I need to elaborate on that fear.
I have indicated the use to which the parties' various products are put in the logistics trade. DSS's K-Roll product is already used by Tesco, who use it for a little less than two-thirds of their requirement for products of their category. They have not yet acquired sufficient numbers of the product to have it used for 100% of their products. So far they have something like 200,000 units.
The supermarkets are one of the potential users of these products. They obviously have a need to move products into their store on trolleys and then to have the conveying item removed and brought back with more product on.
By the same token, some food suppliers are also users of these products for delivery to supermarkets. Coca-Cola is an example. Coca-Cola have been assessing these products and in particular DSS's K-Roll product. Morrisons have trialled certain of the products and, in particular, have trialled Polymer's product, but they have ceased that trial for the time being. Two metaphors have been used to describe what has happened. Polymer have been told that the project has been mothballed; DSS have been told that the project has been put on hold. It seems that the reason given for that to both parties was that other projects were more important.
The other significant player in the field is a concern called Chep. That is a concern which acquires these products and then rents them out to users in the relevant industry, which I assume to be largely but not solely the food and retail industry.
Polymer's fear is this. At the moment there is no standardisation in the market. Polymer and DSS are the two most significant players in the market, and the market was described as almost a duopoly. There are other players but they are very much more minor. At the moment they each have a shot at getting various parts of the market. However, according to Mr. Waywell, the deponent for Polymer, those operating in the market have an interest in standardisation, and that is particularly true of Chep.
At the moment both parties have their products in the market, or the market is receptive to both products. However, there is a benefit to all those using the products if there is a standardisation. Everybody then knows what product is going to arrive at (for example) a supermarket, they know how it can be appropriately handled and it makes matters administratively much more convenient for a party such as Chep, who need only deal with one product and rent it out to various users, to have one rather than two.
There is no formal mechanism for producing a degree of standardisation and Mr. Maple, the deponent for DSS, sets out a short historical narrative in which there was an attempt by an industry body to produce some standardisation but which ran into the sand. Now Mr. Maple says there is a renewed interest in standardisation, but it is not in the same way being actively promoted by a trade body, at...
To continue reading
Request your trial
-
Jodie Henderson v All Around the World Recordings Ltd 2nv Records Ltd (Third Party)
...the costs cap (I dealt with the costs of a certificate of contested validity in a case last year and came to that conclusion in Polymer Logistics v DS Smith (31 st May 2012) (the oral judgment has never been transcribed)). The other exception is for the costs of an application when unreason......