Cremin and another v Ecoplus Ltd and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Roderick Murphy |
| Judgment Date | 26 April 2012 |
| Neutral Citation | [2012] IEHC 280 |
| Court | High Court |
| Date | 26 April 2012 |
[2012] IEHC 280
THE HIGH COURT
BETWEEN
AND
METERS LTD v METROPOLITAN GAS METERS 2011 28 RPC 157
DAWSON v IRISH BROKERS ASSOCIATION 2002 2 ILRM 210
COURTS & COURT OFFICERS ACT 1995 S27
HENEHAN v AIB PLC UNREP FINLAY 19.10.1984 1985/2/279
LONDON SCOTTISH BENEFIT SOCIETY v CHORLEY 1884 13 QBD 762
LITIGANTS IN PERSON (COSTS & EXPENSES) ACT 1975 (UK)
KING v MIN FOR ENVIRONMENT (NO.2) 2007 1 IR 296
EUROPEAN PATENT CONVENTION 1973 ART 100
Intellectual Property - Patents - Infringement - Damages and costs to be awarded
Facts: The first plaintiff held a patent, which he believed the defendants had infringed. At an earlier hearing ("[2012] IEHC 82"), the High Court had found in the plaintiffs' favour. A further hearing was now required to calculate the related damages and costs.
Held by Murphy J, that the first plaintiff's losses were impossible to quantify, but he sought exemplary damages because of the defendants' alleged conduct in infringing the patent. The principle to be followed was that the plaintiff was to be restored to the position he was to be in save for the infringement of his patent. The absence of any evidence from the plaintiffs in respect of their losses meant the Court was unable to award any damages.
In relation to costs, the Court considered earlier case law in respect to litigants in person such as the plaintiffs. The Court considered the plaintiffs were to be entitled to out of pocket expenses, but account had to be taken of the protracted and bitter way in which the claim was pursued by the plaintiffs. A.E. Dawson and Sons v Irish Brokers Association [2002] 2 I.L.R.M 210 considered.
The Court therefore awarded costs in the sum of one half out of pocket expenses, including payments made to solicitors. These were to be taxed in default of agreement.
SUPPLEMENTAL JUDGMENT of Mr. Justice Roderick Murphy dated the 26th day of April 2012
This judgment relates to the question of damages and costs following on the judgment of this Court on the 13 th March, 2012, where the court was satisfied from the evidence that the defendants' application infringed claim 1 and claim 5 of the plaintiff's patent.
Mr. Cremin, the first named plaintiff, submitted that he had suffered loss, but this loss was virtually impossible to quantify.
He asked the court to award exemplary damages, because of the devious means by which the defendants had infringed his patent.
In relation to costs he said that he had to engage solicitors and counsel and, while the hearing all parties approach without representation, he sought an order for costs against the defendants to be taxed in default of agreement. He thanked the court for its patience in dealing with the hearing.
Mr. Carolan on behalf of the defendants suggested a number of amendments to the judgment of the 13 th March, 2012, with which Mr. Cremin had no objection.
In the courts view the most important of these was a request that a reference be made to the circumstances of the formal withdrawal of the agreement to purchase the plaintiff's patents on the 8 th June, 2001. It was agreed that evidence had been given to the court of a written request by the defendants to Mr. O'Connor, the then solicitor for the plaintiffs requesting the numbers of the plaintiffs' patent applications. The fax and hard copy was sent from O'Connor's solicitors to the defendants refusing to give the numbers which resulted in the letter of the 8 th June, 2001.
A further amendment, accepted by the court, was that it was F.F. Gorman the defendants' patent agent who has filed the application for the first named defendant.
Mr. Carolan said that he did not accept that the plaintiffs had suffered any loss. The plaintiffs had walked away from an offer of €500,000 which was confirmed to their solicitor by the solicitors for the defendants.
The first notification of any claim was in August 2002, when the plaintiff's patent agent wrote to the defendants' patent agent alleging an infringement.
Nothing happened until pleadings issued in April 2004. A further two years elapsed until 2006 and 2008 and the present proceedings in 2012 which suffered from a change in the plaintiffs representation. On each of those occasions, Mr. Carolan submitted, the defendants engaged with the plaintiffs.
Mr. Carolan submitted that at no stage was there any opposition to the defendants application.
Mr. Carolan accepted the finding of the court that there was a technical infringement of the plaintiff's patent.
His evidence was that the subject matter of both the plaintiffs' and the defendants' patent, despite the considerable investment made by the latter, proved unsalable. The building contractors did not want to commit to a more expensive heating system that would have a saving on future heating bills.
Mr. Carolan said that he was, at all stages, willing to resolve the issue between the parties, but that at each change of the plaintiffs' solicitors, the plaintiff continued "gung ho" for over eleven years.
The principles underlining the award of damages and the account of profits are that damages are intended to restore the claimant to the position he would have been in, but for the infringement. Damages can be awarded not only for the loss of sales of the patented item, but for goods commonly sold with the patented item. Where the claimant does not manufacture the invention, or licence the patent to third parties, a quantum of damages may be assessed by regard to a reasonable royalty rate as provided for in Meters Limited v. Metropolitan Gas Meters [2011] 28 R.P.C. 157. A reasonable royalty rate would be that in which a potential licencee not yet in the market would pay.
There was no evidence in this case of any loss despite the request of the court that it required such evidence. Where there is no evidence as to loss, a court cannot assess damages. It is not a case of a request being made for an account of profits from the defendant. If such a request was made, while it is clear from the evidence of Mr. Carolan that the first named defendant had incurred significant quantified losses, there was no such evidence from the plaintiffs' witnesses.
The plaintiffs had not proved any loss.
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