Assessing the damage

Few intellectual property (IP) cases proceed to a damages assessment. Usually the court will only order a damages inquiry after liability is established at trial. A damages inquiry is a substantial exercise, requiring expert accounting evidence. IP rights holders are often more interested in stopping the infringing act by obtaining a rapid injunction than in spending time and money trying to establish what their damages entitlement is, particularly where the infringer has limited finances.

Ultraframe (UK) Ltd v Eurocell Building Plastics Ltd [2006] EWHC 1344 (Pat), [2006] All ER (D) 68 (Jun) demonstrates the principles applied when damages are assessed. Ultraframe manufacture conservatories. They developed a conservatory called Ultralite. Ultralite enabled Ultraframe’s share of the low pitch conservatory market to grow from 5% to 80%. In 2002 Eurocell launched a competing product, Pinnacle. Ultraframe issued proceedings alleging that Pinnacle had infringed Ultraframe’s patent and unregistered design rights for Ultralite. After an appeal to the Court of Appeal, it was established