October 30, 2019
Airbus applied to have the proceedings relating to two alleged infringement of a UK patent owned by the claimant, Kwikbolt Ltd transferred from Intellectual Property and Enterprise Court to the Patents Court.
The patent in question claimed an invention entitled “removable blind fastener”, a device for fastening one work piece to another from just one side, as opposed to a nut and bolt type fastener, which requires access to both sides. The single example of use given in the patent was for applying a skin to an aircraft frame. This was how Airbus used fasteners made by a US company called Centrix. Kwikbolt alleged that the keeping and use by Airbus of these fasteners infringed its patent.
His Honour Judge Hacon noted the issues to consider in an application for transfer:
- the complexity of the issues and the estimated length of trial;
- ensuring that parties with limited financial means are afforded access to justice;
- the value of the claim, which should not be confused with the cap on damages that applies in the IPEC; and
- the approach taken by the parties to the litigation.
HHJ Hacon noted that the patent in question claimed a mechanical invention that was not at all complex. This, together with the nature of the parties’ pleadings, meant that there was no doubt that the case could easily be heard in the IPEC.
Further, there was no real doubt that the case could be heard in two days, giving both sides every opportunity to advance their cases fully and fairly.
As for access to justice, HHJ Hacon found that, on the evidence, Kwikbolt was a micro-entity, with a turnover of less than £632,000 and a balance sheet total of less than £316,000. Airbus, on the other hand is part of the Airbus Group that has annual revenues of £55.4 billion. It was clear that there was an overwhelming imbalance of resources between Airbus and Kwikbolt. It was not unrealistic to suppose that the costs may increase by hundreds of thousands of pounds if the case were transferred. A very small enterprise like Kwikbolt was bound to be prejudiced if it had to face the higher costs of the Patents Court.
Airbus argued that the potential harm that would be caused by an injunction should Kwikbolt win at trial was such that the case should be heard in the Patents Court. It said that the only alternative fastener it could use was the old-fashioned nut and bolt fastener, which would cause substantial losses (around £25 million). There would also be loss of sales of aircraft, and therefore loss of profits of £100 million per aircraft. If this was accurate, HHJ Hacon said, it would no doubt be a relevant issue if Kwikbolt were to win at trial. However, the trial judge, at the end of the trial, would be in a better position to assess the evidence and decide on the appropriate relief.
In any event, HHJ Hacon said, if an injunction would be damaging, it did not follow that the case should be heard in the Patents Court, as exactly the same damage would be caused by an injunction granted in the Patents Court. The effect of an injunction would only be relevant to the issue of transfer if there was a realistic risk that Airbus’ ability to argue its defence to the claim would be significantly limited if the case were heard in the IPEC. HHJ Hacon had no doubt that it would not.
HHJ Hacon concluded that the proceedings should not be transferred. (Kwikbolt Ltd v Airbus Operations Ltd  EWHC 2450 (IPEC) (31 July 2019) — the judgment is available in full on the Lawtel website).