Geofabrics v Fiberweb: 'A rare judgment'
Charlotte May KC delivered a comparatively rare judgment at the Patents Court of England and Wales in September.
The decision related to the infringement of Geofabrics’ railway-related patent by Fiberweb in Geofabrics v Fiberweb Geosynthetics[2022] EWHC 2363 (Pat).
While a damages enquiry is fact-dependent, this judgment offers some useful general guidance.
Factual background
Geofabrics launched its product in 2010, while Fiberweb’s infringing product entered the market in 2012 before it was forced off the market by a court-ordered injunction in 2021.
The price of Geofabrics’ product was forced downwards when Fiberweb’s product was launched in 2012 and Geofabrics lost market share. This reduction in share and price unfortunately caused Geofabrics to make some redundancies during this period.
An important point about the structure of this market was that the primary customer for both products was Network Rail, with sales both directly to Network Rail and through a distributor.
Approach of the court
There were a number of disputes for the court to decide in order to determine what the appropriate final damages sum would be. The majority of these disputes between Geofabrics and Fiberweb related to the counterfactual of what would have happened had Fiberweb not infringed Geofabrics’ patent. This is a problem given the inherent uncertainty of assessing what might have happened over a 10-year period.
Both Geofabrics and Fiberweb called an internal witness and a forensic accounting expert to provide evidence on this point.
The judgment, referring to previous case law, makes it clear that the assessment of what would have happened if there had been no infringement is not capable of precise estimation, given the uncertainty, but that the court should do the best it can on the materials available to it, and that the burden lies on the claimant to prove the loss despite these uncertainties.
The judge expressly states that determining what would have happened is harder than it looks.
Decision on the facts
The judge found that:
