Law firm Womble Bond Dickinson (WBD) has advised its longstanding client Geofabrics Limited, a leading UK manufacturer of geotextiles and geocomposites, on a landmark and historic win. In a final Order made by the High Court in connection with a long running patent dispute, Geofabrics, the successful Claimant and patent holder, was awarded £13.4 million in compensation and £900,000 by way of costs.
Few UK patent cases reach the point where the court adjudicates on the amount of damages payable. For example, an article published by Wolters Kluwer[i] describes a study which indicates that between 2000 and 2019 there were only 4 UK patent cases in which damages awards were made by the UK courts, totalling about €1.6m. The £13.4m ruling in favour of Geofabrics greatly exceeds the UK figures set out in this article.
The court case relates to the protection of Geofabrics' geosynthetic Tracktex liner technology, which is protected by a patent filed in 2010. The liner is laid under a railway track for support and to prevent "pumping erosion" from occurring which can lead to a failure of the track. A dispute arose when a competitor, Fiberweb Geosynthetics Ltd, was marketing a similar liner, Hydrotex 2.0, which Geofabrics believed fell within the scope of its patent. Fiberweb refused to withdraw the product when asked to do so in 2017, arguing that it did not infringe the patent, and also that the patent was invalid.
Legal proceedings were commenced by Geofabrics in 2018 and, following experiments performed on the Hydrotex 2.0 product, a first instance judgment was handed down by the High Court in March 2020. This ruled in favour of Geofabrics, but the decision was appealed by Fiberweb. Multiple aspects of the case, including the validity of the patent, were considered by the Court of Appeal, with all three judges upholding the original High Court decision. Consequently, following the Appeal judgment in June 2021, Hydrotex 2.0 was withdrawn from the market.
Geofabrics then pursued its right to claim damages in compensation for the acts of patent infringement. The claim was principally based on the propositions that Geofabrics would have sold more Tracktex and at a higher price than would have been the case had Hydrotex 2.0 not been on the market. To assess this, the Court analysed the fictional "counterfactual" world in which patent infringement had not taken place and in which there had only been one anti-pumping geocomposite trackbed liner available for sale. This culminated in the Court Order dated today (6 October) which requires Fiberweb to pay a total of £14.3 million including damages and costs.
WBD's team was led by intellectual property (IP) partner James Love, associate Tim Barber and solicitor Razvan Popa. They instructed Michael Hicks of Hogarth Chambers in respect of the advocacy, and Martin Chapman, assisted by Jaden Reynolds and Jack Clitheroe, forensic accountants at Azets, The patent was initially drafted by Robert Orr working for UDL.
James Love, partner and Head of IP at WBD, commented:
"Patent owners are often reluctant to have the validity of their patents tested in court. It can be a challenge to prove the validity and it is not uncommon for the courts to revoke patent rights. This is one reason why few cases reach court, with typically only around 20 patent cases being decided in the High Court each year. Appeal court decisions and rulings on amounts payable are even rarer. This represents a landmark result for our client and we are very pleased that our national IP team was able to bring this complex litigation to a satisfactory conclusion."
Gordon Donald, Managing Director at Geofabrics commented:
"We are delighted with the court's decision, which vindicates the protection of our intellectual property and encourages innovation. We are grateful to the teams at WBD, Hogarth Chambers and Azets for their assistance and hard work in bringing this case to fruition. It has been a pleasure working with James and the rest of the WBD team."
Ranking in the UK's top 20 law firms, WBD provides legal expertise in key sectors from across seven offices in the UK and 23 offices in the US. The firm has a large IP, technology and data practice with more than 150 qualified IP lawyers and patent agents in the UK and US.
[i] Article published on the Kluwer Patent Blog, dated 13 September 2021, entitled "The Hit Parade of Patent Infringement Damages in Europe: France is Great (Again)" by Matthieu Dhenne, available at: http://patentblog.kluweriplaw.com/2021/09/13/the-hit-parade-of-patent-infringement-damages-in-europe-france-is-great-again/ and referencing a study published in Festschrift for President Meier-Beck in the journal GRUR (GRUR 2/2021) authored by Pierre Véron.