Wobben v Vestas-Celtic Wind Technology Ltd
| Jurisdiction | England & Wales |
| Judge | MR. JUSTICE WARREN,THE HONOURABLE MR JUSTICE KITCHIN |
| Judgment Date | 14 November 2007 |
| Neutral Citation | [2007] EWHC 2636 (Pat),[2008] EWHC 235 (Pat),[2006] EWHC 3005 (Pat) |
| Date | 14 November 2007 |
| Court | Chancery Division (Patents Court) |
| Docket Number | Case No: HC 06 C01202 |
[2006] EWHC 3005 (Pat)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
PATENTS COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr. Justice Warren
Case No: HC 06 C01202
Mr. James Mellor QC (instructed by Messrs. Olswang) for the Claimant.
Mr. Andrew Waugh QC (instructed by Messrs. Slaughter & May) for the Defendant.
Approved Judgment
MR JUSTICE WARREN:
This action relates to four of the claimant's patents relating to wind turbine electricity generating technology. The claimant seeks a declaration that each patent is valid and has been infringed by the defendant and related relief.
I will take the Particulars of Claim, some of the paragraphs of which I need to read. Paragraph 1 identifies the claimant who is an individual residing at all times at Dreekamp, Aurich, Germany. The claimant is the registered proprietor of the four patents which are then listed.
Paragraph 3 tells us that the defendant is and was at all material times a limited company incorporated under the rules of Scotland with a registered office in Campbeltown Argyll. The claimant carries on business developing, manufacturing, selling, marketing and maintaining wind power systems that use wind energy to generate power in the form of electric and to supply electrical energy.
The opening of paragraph 4 reads:
�The Defendant develops, constructs, installs and/or operates wind farms in the United Kingdom such as those set out in the tables of operational wind farms and winds farms under construction listed by the British Wind Energy Association, extracts from which are at Annex 1.�
Pausing there, Annex 1 contains a table of operational wind farms specifying a number of headings, including on-line, wind farm location, turbine models and other matters. I shall return to this table in a moment.
Paragraph 4 of the Particulars of Claim then go on in paragraph 4.1 to identify, in particular, various installations at different sites. The models of turbines identified are V80 and V90 and locations are identified at North Hoyle Offshore, Barrow Offshore and Wardlaw Wood.
As in a conventional Particulars of Claim in paragraphs 5 and go on:
�The Defendant has carried out the acts referred to in the Particulars of Infringement served together with these Particulars of Claim. By carrying out such acts, the Defendant has infringed and threatens to infringe the Patents and each of them. By reason of such matters set out above, the Claimant has suffered loss and damage.�
So, one sees there again a convention general pleading of infringement with some particular instances identified, upon proof of which an inquiry as to damages would follow although the scope of that inquiry might be a matter for debate.
The Particulars of Infringement at paragraph 1 starts with some general words:
�The following are the Particulars of Infringement referred to in the Particulars of Claim served herewith and upon which the Claimant will rely at the trial of this action. The Claimant uses the terms as defined and used in the Particulars of Claim.�
This paragraph relates to the product claims.
Paragraph 1 is a product claim referring to the invention which is the subject of the patents, namely wind energy systems, wind energy installations, wind energy generating plants or power stations and wind turbines, and the infringement is by making, disposing of, offering to dispose of, using or importing the said products or keeping the products whether for disposal or otherwise.
That is a very general pleading and does not tell the reader with any particularity the infringement relied on. That detail is given under the particulars which commence: �Pending disclosure and/or responses to further information under CPR Part 18, the Claimant will rely upon the following acts of the Defendant.�
As to that, paragraph 1 refers to the manufacture, etcetera of the wind turbine systems known as Vestas V52, V66, V80, V82 and/or V90. Then paragraphs 2-4 of those particulars identify the sites in relation to V80 and V90. They identify North Hoyle Offshore, Barrow Offshore and Wardlaw Wood.
Paragraph 2 of the Particulars of Infringement refer to the process claims and reflect section 60(1)(b) in 2.1 and section 60(2) in 2.2. There are particulars given under paragraph 2 which include three numbered paragraphs 1-3 in Arabic numerals in brackets. Paragraph (1) refers to wind farms at the three sites I have already mentioned, North Hoyle Offshore, Barrow Offshore and/or Wardlaw Wood. Paragraph (2) refers to some publications in which it is alleged that offers of the process have been made available, namely The Window, a Vestas publication published in September 2003 and a paper called the Grid Requirement Challenges For Wind Turbines presented as part of the Fourth International Workshop on Large-Scale Integration of Wind Power and Transmission Networks for Offshore Wind Farms, by Mr. Bolik of Vestas Wind Systems, October 2003 in Denmark.
Then comes paragraph 3, which starts with a general allegation of supplying and offering to supply, including in particular V80, V80 is at North Hoyle Offshore, V90 is at Barrow Offshore and/or Wardlaw Wood.
In relation to neither product nor process claims is there identified any particular infringement in relation to any models other than V80 and V90, nor at any site other than North Hoyle Offshore, Barrow Offshore and Wardlaw Wood.
The defendant's case in relation to the products claims is that there is no material difference between V52, V66, V80 and V90. It has accordingly produced a single PPD for those models. It is also in the process of producing a PPD for V82, notwithstanding that no particular instance of infringement is identified in relation to that model. The defendant says it recognises that V82 is brought into issue by the pleading and notwithstanding the absence of particularity considers that the issue of validity and infringement needs to be addressed in respect of that model too.
The claimant suggests that the defendant's infringement of his patents may go beyond the models which I have identified. In particular, without this necessarily being exhaustive, there is concern that an older model, V47, infringes and that NEG Micon may also do so. That is a model produced by a company which is now within the same group as the Defendant but was not, as I understand it, at the time of the supply of the allegedly infringing model. Both of these models appear on Annex 1, which I have mentioned. Indeed, in the list on the first page of Annex 1 V47 appears as the second entry and V80 as the third suggesting, according to Mr. Waugh, who appears for the defendant, that there has been a deliberate decision to claim in respect of V80 but not V47.
This brings me to the defendant's application with which I am now dealing. It seeks an order that certain matters be stood over as issues to be heard after the main trial in this action. There is a trial fixed for June 2007 with an estimate of seven to eight days.
The application seeks two orders. The first is that the issue of the infringement of the patents in suit shall be considered only in relation to such of the defendant's V52, V66, V80 and V90 models as are installed or to be installed at Barrow Offshore, Blyth, Braes of Doune, North Hoyle Offshore and Wardlaw Wood and the defendant's V82 model to be completed. The distinction is that there has not as yet been an installation of V82 in the United Kingdom, although it has been offered for sale.
The second order sought is that the issue of the defendant's knowledge for the purposes of assessing any alleged infringement under sections 60(1)(b) or (2) also be stood over until after the trial of liability. Since liability on one set of facts is not actually established without establishing knowledge, what is really meant by the trial of liability is a trial of whether the acts complained of amount to infringement providing that knowledge is established.
The defendant's starting point is the pleading. The defendant says that it has formulated its approach to its defence by addressing the pleaded case. It says that the claimant has chosen to particularise his case by reference to specified infringing models at different locations and cannot now run his case without amendment by a reference to other models or, indeed it would logically follow, other locations but nothing turns on that on the facts. Mr. Waugh submits that the defendant has quite reasonably read the pleading as including only the specified model numbers, a reading fortified by the close proximity in Annex 1 of V80 and V47 coupled with the express adoption of the particulars of only V80. He refers to paragraph 11.1 of the Practice Direction, page 586:
�In a claim for infringement of a patent - (1) the statement of case must - (a) show which of the claims in the specification of the patents are alleged to be infringed; and (b) give at least one example of each type of infringement alleged�.
While looking at that volume, I was taken by Mr. Waugh to paragraph 2F-13, the paragraph at the bottom of the page reading:
�Each type of infringement alleged constitutes a separate cause of action and must be separately particularised however see also Building Product Design Ltd v Sandtoft Roof Tiles Ltd [2004] F.S.R. 40 where products of a different material to those complained of in the particulars infringement were also held to infringe��and the case under the same No. 2��the requirements of the Civil Procedure Rules, Part 63, that each type of infringement had to be specifically pleaded...
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