This was an appeal of HHJ Hacon’s decision in AP Racing Limited v Alcon Components Limited, Intellectual Property Enterprise Court, 15 February 2017, Neutral Citation Number [2017] EWHC 248 (IPEC) concerning disc brake calipers for use on racing cars. The leading judgment was given by Lord Justice Lewison, with whom Lord Justice Lindblom and Lord Justice Flaux agreed. The issue on appeal was whether two disc brake calipers manufactured by the respondent infringed the appellant’s patent. At first instance, HHJ Hacon had found that they did not.

The invention was an improved disc brake caliper which incorporated peripheral stiffening bands to increase structural rigidity. The appellant submitted that the error which the judge made was in identifying where the peripheral stiffening bands in the impugned calipers began and where they ended. The appellant also argued that the judge did not explicitly consider the existence of a webbed portion of the impugned caliper which was indicative of it being part of a peripheral stiffening band.

Lewison LJ rejected the appellant’s submissions and the appeal was dismissed. Although there was no explicit reference to the webbed portion in that part of the judgment, the judge had referred to the “structure” of the peripheral stiffening band, which would encompass the web. He had also correctly directed himself about the significance of the web earlier in his judgment.

The appellant had accepted as correct the whole of the section of the judgment that dealt with construction. Therefore, the application of that construction to a given impugned caliper was an evaluative judgment. Lewison LJ further noted that an appeal court must be particularly cautious about interfering with value judgments of this kind and should not overturn a trial judge’s findings of fact unless compelled to do so.

There was also a point of procedural fairness, as the appellant relied upon drawings and allegations in the appeal which were not part of its pleaded case. Lewison LJ commented that the function of the appeal court is not to try the case again, but to review the decision of the trial judge. To present an appeal court with a new case subverts that function.

A copy of the decision can be read here.

Headnote: Daniel McGrath, Marks & Clerk Solicitors