Clinisupplies Ltd v Park & Ors

For UK unregistered design right, an aspect of an article’s configuration may include the relative arrangement of its parts or elements. The mere selection of components is insufficient without their relative arrangement. However, a claim framed at the level of a general concept, functional sequence, or method or principle of construction is excluded from protection. A pleading which seeks a monopoly over products of widely varying appearance therefore discloses no reasonable grounds for design-right infringement. The same conclusion may be reached summarily where the claimant has no real prospect of establishing that design right subsists in the alleged features.

CliniSupplies claimed UK design right in features of its Vesica urinary catheter procedure pack. It alleged that Richardson Healthcare and Mr Patel had infringed those rights through the Cath-It product. The defendants applied to strike out the design-right claim under CPR r. 3.4(2)(a), alternatively for summary judgment. CliniSupplies also applied to amend its Particulars of Claim. The proposed amendments were not opposed except on the basis that they did not answer the defendants’ application. The central issue was whether the pleaded features were designs within section 213 of the Copyright, Designs and Patents Act 1988, or were excluded as methods or principles of construction.

1. The application to amend was considered in the form of the final proposed amendments. The claim for breach of confidence was abandoned, and the design-right claim was confined to UK design right.

2. The court held that “configuration” may include the relative arrangement of parts or elements of an article. That construction, adopted by Pumfrey J in Mackie Designs Inc v Behringer Specialised Studio Equipment (UK) Ltd and adhered to in JCM Seating Solutions Ltd v James Leckey Designs Ltd, was not shown to be wrong and should be treated as settled law pending review by the Court of Appeal. The mere selection of components, without their relative arrangement, cannot constitute an aspect of configuration.

3. The layering of items in the Vesica could therefore amount to an aspect of configuration. Nevertheless, the pleaded claims sought protection for functional arrangements and sequences which reflected aseptic non-touch technique. They were framed as a series of patent-style concepts capable of covering products with widely varying appearances.

4. Those claims were excluded by section 213(3)(a) as methods or principles of construction. The court applied the reasoning in JCM Seating Solutions Ltd v James Leckey Designs Ltd, and the principle approved in Landor & Hawa International Ltd v Azure Designs Ltd, that a conception broad enough to permit several different specific appearances is too general to receive design-right protection.

5. Accordingly, the Particulars of Claim disclosed no reasonable grounds for claiming design right in the pleaded aspects. The design-right claim was struck out. Alternatively, summary judgment was entered because CliniSupplies had no real prospect of successfully claiming design right in those aspects.

First-instance decision. No appeal history is stated in the judgment.