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21 December 20233 minute read

DLA Piper represents Safestand in successful patent infringement and validity case

DLA Piper has represented the successful Claimant, Safestand Limited, in their patent infringement case against Weston Homes (Safestand Limited v Weston Homes [2023] EWHC 3250 (Pat)). Safestand designs and markets a market-leading modular scaffolding system for low level access platforms, designed to be a simple, cost effective, safe and versatile solution to working at height in construction. Safestand brought a case against Weston in respect of their ‘Kwik Kage’ system, alleging infringement of three of Safestand’s patents relating to safety features of modular scaffolding systems. Following a 7-day trial before HHJ Hacon, Weston, were found to have infringed all three patents, and all were found to be valid.

At the heart of the Defendants’ defence on infringement was an argument that their system did not include any ‘trestles’ because the supporting structures in their kit were ‘too wobbly’ to be a trestle (if used without cross-braces). A particular bone of contention between the parties was the Defendants’ reliance on lengthy and expensive experiments to investigate the stability of their system. The experiments were also the subject of a successful interim application by the Claimant, seeking waiver of privilege in the results of related experiments (as discussed in our article here). The Judge agreed that the experiments were of no assistance in resolving any relevant issues between the parties and found that a lack of candour of the Defendants’ expert, who implied that there was no data when he knew that data existed, did not enhance his credibility. 

Ultimately, the Judge found that the skilled person would not qualify the standard definition of a trestle (according to a British Standard) with an imprecise limitation of it not being too wobbly in use. In the Judge’s words, “[a]n unsatisfactory trestle is still a trestle”.

In relation to validity, the Judgment is replete with reminders of the need to instruct expert witnesses completely and accurately. The Judge found that the Defendants’ expert had been provided with a flawed understanding of the concept of Common General Knowledge (CGK), noting that it is not the case that “every piece of information not held in the skilled person’s mind but which he or she knows to exist is hoovered up into the CGK”. In considering obviousness, the Judge highlighted that when experts are instructed as to the approach to take, there is often an over-emphasis on whether a piece of prior art is worthwhile as a ‘starting point’ from which to arrive at the invention. The focus should be on what the prior art discloses and what it does not disclose, rather than gauging its interest to the skilled person and assessing its merits as a starting point. 

Safestand’s legal team comprised of partner in DLA Piper’s IPT practice, Rebecca Lawrence, and Andrew Lykiardopoulos KC and Henry Edwards of 8 New Square.

The full judgment can be found here.