Neutral Citation Number: [2004] EWHC 2981 (Ch)
Case No: HC 03C 01654
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 21st December 2004 

Before :

THE HONOURABLE MR JUSTICE MANN
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Between :

	DYSON LIMITED	Claimant	
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	QUALTEX (UK) LIMITED	Defendant	

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MR. HENRY CARR QC and MR. DOUGLAS CAMPBELL (instructed by Messrs. Wragge & Co) appeared for the Claimant.

MR. RICHARD ARNOLD QC and MR. TOM MOODY-STUART (instructed by Messrs. Willoughby & Partners) appeared for the Defendant.

Hearing dates: 23 –25 June, 28th-30th June, 1st-2nd , 5-9 July, 19 July 2004
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Judgment
Mr Justice Mann :
TABLE OF CONTENTS

	Paragraph Number	

PART 1 – INTRODUCTORY AND GENERAL MATTERS		
Introduction	1	
The parts in issue in this case	13	
PART 2 – THE LEGISLATION		
History and the correct approach to interpretation	17	
Design right	21	
Must fit	31	
Surface decoration	35	
Commonplace	39	
Design document	48	
Must match	51	
PART 3 – WITNESSES AND GENERAL EVIDENCE	65	
Witnesses	66	
Dyson machines as design icons	71	
PART 4 – DESIGN RIGHT APPLIED TO THE PARTS		
The subject parts generally	72	
1992 DC01 wand handle	74	
1992 DC01 cable winder	121	
1995 DC01 wand handle	134	
1997 DC01 wand handle	137	
DC01 soleplate	145	
DC01 cradle	161	
DC01 lower hose cuff	172	
DC01 tool adaptor	186	
DC07 stair tool	195	
DC04 hose assembly lower cuff	212	
DC04 brush bar	226	
Large brush tool	247	
DC02 wand handle	258	
DC05 wand handle	286	
PART 5 – COMMENCEMENT OF DESIGN RIGHT IN CERTAIN OF THE PARTS		
DC01	303	
DC02	310	
DC03	313	
DC04	314	
PART 6 – PARTICULAR GENERAL DEFENCES		
Acquiescence and estoppel	315	
PART 7 – REMEDIES	317	
PART 8 – CONCLUSIONS	344	

PART 1 – INTRODUCTORY AND GENERAL MATTERS
Introduction
1.	This action is the trial of the claim of Dyson Limited for infringement of unregistered design right which it claims to exist in respect of a number of spare parts for its vacuum cleaners.  The Defendant is Qualtex (UK) Limited (“Qualtex”).  It is one of the UK’s leading suppliers of what are known as “pattern” parts, that is to say duplicate spare parts for domestic appliances (I expand on this below).  The case raises a very large number of issues in relation to very large number of aspects of a large number of parts.  In particular it raises questions as to the scope of the “must fit” and “must match” provisions of the Copyright, Designs and Patents Act 1988, and the Defendant considers that it raises serious legal and economic (and perhaps public interest) questions as to the ability of manufacturers to control the spare parts aftermarket.  In addition to various matters arising under that Act, there are also significant questions of waiver and acquiescence.  The case involves a lot of technical and legal detail.  The hearing of the case took 14 days, during the course of which I heard evidence from over 20 witnesses of fact (and three experts).  It would have taken much longer but for the commendably economical and efficient approach of all counsel in this case.
“Pattern” Parts
2.	Products such as vacuum cleaners from time to time require spare parts.  Those parts include not only such things as filters and drive belts which can be expected to require replacement over the lifetime of the machine, but they also include other parts of the machine (whether customer-replaceable or requiring the intervention of an expert) which may require replacement because they break or otherwise fail.  When replacement is required, there are two sources of supply for the replacement parts.  The first is the original manufacturer of the equipment (“OEM” – Original Equipment Manufacturer).  The second is independent manufacturers and suppliers who make and supply two different kinds of spares.  The first kind of spare is purely functional and does not attempt to reproduce the appearance of the original.  The second kind is a part which is in effect a duplicate of the original (save that it would not bear the mark of the OEM).  This latter category is apparently known as “pattern” spares and an important part of the market because sometimes customers would prefer to buy something which looks exactly like the original, either because he or she wishes to preserve the appearance of the original machine, or because almost as a matter of instinct he or she thinks it is somehow safer to buy something that looks like the original.  Pattern spares (where available) are on many if not most occasions cheaper than comparable OEM spares and in some cases they may be more readily available if the OEM has supply difficulties.  Non-replica spares may be even cheaper, whether or not they are readily available.  There is a market for all these types of spare parts (including consumable items such as filters).  This case concerns pattern spares made to resemble certain Dyson vacuum cleaner parts.
Dyson Vacuum Cleaners
3.	In the course of the 1990’s various employees of a company known as Prototypes Limited were engaged in the design of various vacuum cleaners under the control of Mr James Dyson, the now well known inventor and designer.  On 23rd June 1997 that company changed its name to Dyson Research Limited, and on 28th April 2003 it assigned to the Claimant all its right and title to any unregistered designs and the rights to sue for any infringement on those rights.  It is unnecessary for the purposes of this judgment to distinguish between various companies in the Dyson Group, and since this judgment will inevitably contain a large amount of detail on other topics I shall not clutter it further with detailed references to the various  Dyson companies which were from time to time conducting the activities of the group.  Since there is no issue in this action which turns on which Dyson Company was doing what at any given point in time, it will be sufficient to treat them all as one, and I shall refer to them globally as “Dyson” save on any odd occasion where it is necessary or appropriate to identify a particular company.  
4.	The short history of the machines with which this action is concerned is as follows.  What follows is a general description of the products in order to provide a context for a consideration of the parts in question in this action.  In respect of at least some products the date when it was first made available in the market is important and disputed.  I shall make findings about that in due course.  In this section of this judgment all dates are approximate.  I also include reference to a couple of preceding models in relation to which Mr Dyson had a hand in the design because the prior existence of these models gave rise to certain issues as to the originality of parts of the later disputed designs.  Pictures of all the relevant Dyson machines appear in Annexe A to this judgment.
The Iona Fantom and the Cyclon cleaners.  
5.	These two cleaners were both upright vacuum cleaners with detachable handles attached to hoses.  Both incorporated the “Cyclone System” (as opposed to the more normal bag system) which lies at the heart of the Dyson vacuum cleaners.  They were both sold in the 1980’s.  Their significance for the purposes of this action is that certain aspects of the parts which are the subject of this action are alleged to have been copied from those designs so as to make the Dyson designs non-original, or are alleged to demonstrate the commonplace nature of some designs.
DC01 Upright Cleaner. 
6.	 This was the first of the Dyson range to be launched in this country.  It was launched in 1992/3 (this is a disputed date). It features a cleaning head which passes over the surface to be vacuumed, and a body which houses the motor and the cyclone mechanism where the dust is deposited.  On the back is a handle with which the machine is manoeuvred around the room.  The handle protrudes from the top of the machine, and below that is a long aluminium tube which passes into, and is connected to, a length of flexible hose, which itself connects to the bottom of the machine.  The top of this handle (“the wand handle”) is hollow.  By pressing a release catch on the front of the handle, the wand handle and the top of the hose into which it passes swing away from the machine, leaving them connected only by the hose at the bottom (at the “lower hose cuff”, which features heavily in this action).  When that is done the suction is directed away from the cleaning head at floor level and up the hose, enabling the user to vacuum upholstery, stairs and other surfaces by means of an appropriate tool placed in the top (hollow) end of the wand handle.  Thus the machine has two modes – the normal carpet cleaning mode, during which it is pushed and pulled across the carpet (or other surfaces), and the above carpet mode via the detachable wand handle.  In later models the upper end of the hose can be detached from the wand handle and a tool can be attached to it via an adaptor.
DC02 Cylinder Machine
7.	Although called a “cylinder” machine, its design overall is not particularly cylindrical.  As I understand it, it is given the name “cylinder” to distinguish it from the upright type.  This machine was launched in March 1995.  Its only method of delivering suction to a carpet or other surface is via a hose coming out of the top of the machine.  That hose is flexible.  To it is attached a curved plastic section, known again as the “wand handle”, and to the end of the wand handle can be attached either a cleaning tool (such as a brush) or a metal wand or extension tube to the end of which the cleaning tool is attached.  Again, this is a cyclone, and not a bag, machine.  
DC03 Upright Machine
8.	This was launched in about January 1998.  Although different in certain aspects of its design from the DC01, it shared with it the features of being used either in “normal” carpet sweeping mode or above the carpet by means of the same sort of detachable wand.  
DC04 Upright Machine
9.	This machine was launched in about February 1999 in order to replace the DC01.  Again, it is an upright machine with a detachable wand handle.  
DC05 Cylinder Machine
10.	This machine was launched in about November 1998 in order to replace the DC02.  It is similar in overall concept, but differently sized and shaped.
DC08 Cylinder Machine
11.	This machine was launched in June 2002 to replace the DC05.  It has no particular relevance to this action.
DC11 Cylinder Machine
12.	This is the most recent cylinder machine, launched in 2003.  Again, it has no relevance to this action.
The Parts in Issue in this Case
13.	As with any mechanical apparatus, from time to time parts of the various Dyson machines require replacement because they wear out, or because they break, or perhaps because they are lost (in respect of some of the attachments).  The Dyson machines have filters, and some of them require regular replacement.  Filters are not in issue in this action.  Nor does this action concern some other moving parts which might be expected to break, namely the belt drives for the brushes on the upright machines.  This action concerns other parts, and they can be briefly identified as follows:
i)	Wand handle for the DC01 – 1992 design.  This is a part already described as having the function of being detachable from the machine so as to enable the user to insert a tool at the end and vacuum areas above ground level.
ii)	Wand handle for DC01 – 1995 design.  In 1995 the design of this handle was changed.  The details appear hereafter.  
iii)	Wand handle for DC01 – 1997 version.  In 1997 there was a further modification to the cable winder.  Copying that is also something which is in issue in this case. 
iv)	Soleplate assembly for DC01.  Underneath the cleaning head of the DC01 there is a two part soleplate.  The front part is a tilting “cradle” which rests against the floor and contains the holes through which a revolving brush agitates the carpet and through which suction drags the dust into the vacuum cleaner.  It is attached to a separate soleplate which supports the cradle and channels the air up into the machine.  
v)	Stair tool for the DC03 machine.  This is a small-headed tool which attaches to the end of the wand handle or hose (via an adaptor) and enables surfaces such as stairs to be vacuumed more conveniently.
vi)	Stair tool for DC07.  This is a tool which fulfils the same function in relation to the DC07 as the tool just referred to fulfils in relation to the DC03.
vii)	Brush bar for DC03.  Underneath the cleaning head of the upright machines there is a revolving brush whose bristles engage the carpet in order to agitate it and to sweep up relevant particles so that they can then be sucked up into the machine.  It revolves at several thousand rpm.  It is suspended from the cradle/soleplate assembly.  The brush bar referred to under this head is the brush bar used for the DC03.  
viii)	Brush bar for the DC04 machine.  This brush fulfils the same function in relation to the DC04 machine as that just referred to does in relation to the DC03 machine.
ix)	Hose assembly for DC01.  Running up the back of the DC01 is a hose.  The aluminium tube from the wand handle slides into it and at the top the hose engages in part of the wand handle.  No issue arises in relation to the cuff at the top of the hose or the hose itself.  At the bottom of the hose there is a plastic cuff which engages with, and fixes the hose into, the bottom of the machine.  The design of this lower hose cuff is in issue.
x)	Hose assembly for the DC04 machine.  There is a hose at the back of this machine fulfilling the same function as that just described does in relation to the DC01.  Again, the cuff at the bottom of this hose (which is of a different design to that on the DC01) is in issue in these proceedings.  
xi)	DC01 tool adaptor.  In order to attach a tool to the top end of the hose of the DC01, an adaptor is required because the tube at the end of the tools (for example the stair tool referred to above) does not otherwise fit on to it.  The adaptor in question allows them to fit together.  At one end it has a short tube of lesser diameter which fits into the hose end.  At the other there is a tube of greater diameter which fits into the tube at the end of the tool.  In between, over the area of the change in diameter between those two tubes, is a rounded and ribbed part.  Replica adaptors are in issue in these proceedings.
xii)	Large brush tool.  This is a tool designed to go onto the end of various tubes and adaptors.  It has an oval head some three or four inches wide and bristles in a double row around the circumference of the mouth.  It is designed for brushing and vacuuming above floor level.  
xiii)	Wand handle for DC02.  The wand handle on a DC02 fits on to the end of the flexible hose remote from the machine.  On to the other end of the wand handle goes either an extension tube (with tools at the end) or various above floor cleaning tools.  It is a curved piece with a bleed valve in it.  This part is in issue in these proceedings.
xiv)	Wand handle for DC05.  This item fulfils the same function in relation to the DC05 machine as that just referred to does in relation to the DC02.  The only difference between the DC02 and the DC05 wand handles is a collar and clip at the tool end of this part.
14.	These proceedings arise because Qualtex has, in the case of all the above parts, commissioned, produced and sold parts which are copies or very close copies (where not exact) of all of them.  Dyson says that in producing those copies Qualtex has infringed its (Dyson’s) design right.  It does not claim design right in the entirety of any one of those products since it accepts that parts of each of the designs in question are covered by exceptions in the Act, to which I shall have to turn in due course.  However, in relation to each of the parts Dyson points to areas of the design which it claims are not within any of the exceptions and in respect of which it claims its design right has been infringed.  In answer to that Qualtex raises a number of different points, but one point that it does not take is that it did not copy.  Mr Hulme, the Chairman of Qualtex, admitted frankly that all the parts in issue in this case were copied by Qualtex.  There are very minor points of difference in some of the parts, but those points do not detract from the admission of copying and are not relevant to anything that I have to decide.  Apart from that, practically every point that might be a bar to design right under the statute has arisen in relation to one or more of the parts in this case.   Thus:
a)	Originality is an issue – it is said that many of the relevant designs were copied from somewhere else.
b)	The “must fit” exception is said to apply to large areas of each of them (and indeed much of this is common ground).
c)	The “must match” exception is said to apply to significant areas of most of the parts. 
d)	In most cases it is said that those parts of the designs not otherwise excluded are commonplace.  
e)	Some aspects of some designs are said to be mere surface decoration.
f)	There are disputes as to the start dates of the design right protection period in relation to some parts.
15.	Those are the issues which arise which are particular to the design right created by statute.  In addition, and insofar as design right would otherwise have been infringed, Qualtex relies on estoppel, or on waiver or acquiescence by Dyson, on the footing that Dyson knew what Qualtex was doing and did nothing to stop it.  It is said that, in reliance on a belief that Dyson was not going to object, Qualtex went ahead and commissioned and produced more parts.
16.	In order to cover all those issues I have heard from a significant number of witnesses.  Dyson deployed 15 witnesses, including one, (Mr Jupp) who was in part a witness of fact and in part an expert.  Most of those witnesses gave evidence going to the design history of the parts in question.  Three of them gave evidence going to acquiescence or waiver.  Qualtex deployed nine witnesses.  Mr Hulme gave evidence of fact and also provided expert evidence; of the others, two gave evidence as to the genesis of some of the brush designs (and one of those gave expert evidence as to brush design) and the remainder gave evidence going to the acquiescence/waiver point.  A full consideration of this case involves dealing with a lot of the detail arising out of that evidence and upon a notional and detailed dissection of the parts in question.  This judgment itself will therefore itself have to be detailed and regrettably long.

PART 2 – THE LEGISLATION
The Legislation – History and the correct approach to interpretation
17.	The provisions which create the unregistered design right relied on in this case were new in the 1988 Act.  I shall come to the terms of those provisions in due course but first it is necessary to set out the background to that Act because it has to be taken into account in construing the Act.  It was part of the submissions of Qualtex in this case that the “must fit” and “must match” provisions of the legislation are designed to protect suppliers of spare parts and they would fail to give adequate protection if they were narrowly interpreted.  My attention was drawn by Mr Richard Arnold Q.C., who appeared for Qualtex, to the following statement by Mummery L.J. in Farmers Building Limited –v- Carier Bulk Materials Handling Limited [1999] RPC 461 at 480:
“Comparison of the pre-1988 Act case law with the provisions in Part III of the 1988 Act suggests that the purpose of introducing the design right was to reduce the extent of protection from copying afforded to the designs of industrially produced articles and, in the case of spare parts, to remove protection from copying completely by express provision (see section 213 (3)(b).”
Mr Arnold did not go so far as to say that the legislation did have the effect in relation to spare parts that Mummery L.J. referred to, and Mr Henry Carr Q.C., who appeared for Dyson, pointed out that the statement was obiter in any event.  However, it is of the essence of the submissions of Qualtex that the restrictions on design right imposed by the 1988 Act should be construed benevolently (in favour of the copier) where spare parts were concerned.  Mr Hulme himself expressed the strong view that pattern parts suppliers ought to be able to copy spare parts exactly, at least where that is what customers tend to require, and it was his belief that that is what the legislature intended.  Otherwise, it was said, consumers would be unnecessarily, unfairly and anti-competitively bound to OEMs and would have to pay more for spare parts.  
18.	I do not accept that I should approach any questions of construction of the statute with any such benevolence in mind.  It is quite clear from the legislative history that, while spare parts were to have some protection, the object of the Act was not to be particularly benevolent (or indeed particularly hostile) to the manufacturers of spare parts.  The Act was preceded by a White Paper on “Intellectual Property and Innovation”, presented to Parliament in April 1986.  At the date of that White Paper a manufacturer of functional articles could claim copyright in the drawings on which functional articles were based, and if his articles were copied he could claim an infringement of copyright in those original drawings.  This was confirmed in British Leyland Motor Corporation Limited –v- Armstrong Patents Co Ltd (1986) AC 577 (a decision given shortly before the publication of the White Paper), although that case introduced a very significant qualification to the effect that the owner of a car had an inherent right to repair his car and that copyright could not be asserted against such a person in respect of spare parts.  The White Paper considered the extent to which spare parts should be excepted from any prevention of copying and pointed out (at paragraph 3.20) that there was a considerable debate as to whether functional articles should be protected or not.  There are significant economic factors in play in such an argument.  The White Paper indicated that the government adopted neither an extreme protectionist nor an extreme non-protectionist stance.  The White Paper recommended some protection, but a more limited protection both in terms of its scope and in terms of its duration than was afforded to artistic works via the copyright regime.  At paragraph 3.21 the White Paper said:
“3.21 British industry relies to a great extent on its innovative abilities.  It is clear that there are many innovative industrial products which are costly to design but which are not truly inventive and which therefore do not qualify for patent protection.  Accordingly, the government has concluded that some protection should be available to give the manufacturer who has spent money on design the opportunity to benefit from his investment, thus providing an incentive to further investment.  It has also concluded that this protection should extend to spare parts but it readily accepts that the full protection of copyright law would be excessive.”
	And the report went on:
“3.26 The remaining alternative considered, and the one that the government intends to follow, is to provide protection on copyright principles but without the more objectionable features of full copyright protection…  Where the functional article is also a spare part it is arguable that the potential for monopolistic abuse should be avoided by giving no protection outside patent and registered design systems;  the House of Lords decision in British Leyland –v- Armstrong Patents Company is consistent with this approach.  On the other hand, the Monopolies and Mergers Commission, in its report on the Ford Motor Company’s exercise of its copyright in car body panels, which are manifestly mass-market spare parts, recommended that the term of protection for such panels should be five years.  The law must however deal with all classes of articles, whether they be spare parts, components of more general utility or self contained products… Since it is not practicable to distinguish narrowly between articles in generally applicable legislation, a compromise is necessary.  The government considers however that the basic premise should be that all original designs deserve a period of protection to give the designer a market lead over the copier.
3.27 Against this background, the government proposes to introduce a new form of protection against copying for original designs, including designs of spare parts…”
From this the following matters are apparent.  First, the White Paper clearly has spare parts, and the issues surrounding them, in mind in this context.  Second, it clearly rejected the notion that spare parts should be exempted from any protective regime.  Thirdly, it rejected the notion that spare parts should be subject to some special regime.  They were to be dealt with like all other functional articles, though as will be apparent one or two provisions have particular application to spare parts.
19.	The 1988 Act followed after this White Paper.  As will be seen, its terms do not specifically refer to spare parts as if they were different from other functional articles.  Section 51 (1) effectively nullifies the copyright protection regime in relation to functional articles by providing that it is not an infringement of copyright in any underlying drawing to make a copy of an article based on that drawing – I do not need to set out its terms.  The provisions of Part III of the Act then create a new regime of “Design Right in Original Designs”, and it does it by reference to designs generally without making special reference to designs for spare parts.  The provisions are, as the White Paper envisaged, applicable to a wide range of functional articles, and they must be construed as such.  I shall therefore approach those provisions on the footing that spare parts come within their compass, both in terms of the conferring of the right and in terms of the qualifications or limitations on the right, but without any particular leaning towards the suppliers of original parts, the suppliers of replica parts or consumers.  The “must fit” and “must match” provisions are clearly intended to apply to spare parts, but there is nothing in the Act, or in the White Paper, which requires me to lean in any particular direction in construing them.  I will also approach the question of construction on the footing that Parliament intended to give real, and not ephemeral, protection to designs – this is important in considering the must fit exception to design right.
The statutory provisions and guidance as to their meaning and application
20.	This case has involved a debate on the meaning, effect and extent of many of the elements that go to create and delineate the extent of unregistered design right.  I have to deal with the issues that arise out of that debate.  In relation to some areas, I can only conveniently do so in the context of considering a particular article.  However, in relation to some areas of the debate it will be convenient to deal with those issues in general terms at this point of the judgment so that my decision can then be applied to other parts to which they relate by cross-referring back to what I decide in the paragraphs which follow.  I shall therefore set out the relevant parts of the statute, and follow each with my determination of the issues which arise in relation to them so far as that can be conveniently done at this stage of the judgment.
Design right
21.	Design right is defined thus in section 213 (1):
“213.-(1) Design right is a property right which subsists in accordance with this Part in an original design.”
The issue which arises out of this section from time to time is the significance of the requirement that the design has to be “original”.  It arises because Qualtex claims that some of the designs, or more accurately some parts of some of the designs, are not original in that they have been derived from a prior design so as to make it non-original.  On some occasions the prior design is said to be a prior design of Dyson; in others it is said to be the prior design of others.  In order to provide a framework for considering the points in relation to the parts in question, I shall consider here what is meant by this requirement.
22.	In Farmers Build Limited –v- Carier Limited  at page 482, Mummery L.J. dealt with this point.  He said:
“(2) The court must be satisfied that the design for which protection is claimed has not simply been copied (e.g. like a photocopy) from the design of an earlier article.  It must not forget that, in the field of designs of functional articles, one design may be very similar to or even identical with another design and yet not be a copy: it may be an original and independent shape and configuration coincidentally the same or similar.  If, however, the court is satisfied that it has been slavishly copied from an earlier design, it is not an “original” design in the “copyright sense” … ”.
23.	Both parties took this as their respective starting points where originality was an issue.  However, on the facts of this case, Qualtex seeks to develop that, or perhaps put a gloss on it, because of the genesis of some of the designs in question.  It was admitted from time to time by Dyson’s witnesses that a given part was derived from, or based on, an earlier Dyson design.  It was a common theme of Mr Arnold’s submissions in relation to various of the parts in issue that there was insufficient difference between the earlier and the later designs to make the later designs “original” within the meaning of section 213 (1).   He said that the test was whether any difference was “visually significant”.  In this respect he based himself on certain dicta of Lord Oliver in Interlego AG –v- Tyco Industries Inc [1989] AC 217.  That was a copyright case which required a consideration of the interaction between copyright and the provisions of the Registered Designs Act 1949.  One of the issues in the case was whether later drawings, which reproduced earlier drawings without any significant visual alterations but with modifications to written information on them (for technical purposes) were original artistic works for the purposes of copyright law.  Lord Oliver, giving the opinion of the Board, said they were not.  At page 258b he held:
“The significant thing about all these changes is that they involve no substantial alteration to the [earlier] drawing as such.  The outline of the object depicted is, in each case, virtually identical save for the minute differences occasioned by the abandonment of the flow-rib, the depicting of radii on the edges of the knobs and the abandonment of the radius on the outer diameter of the tubes.  The significant changes, however important technically, are not indicated by any substantial alteration of the drawing as an artistic work.  That remains basically the same and was admittedly copied on the 1968 drawing in the same way as if it had been actually traced.  …What is important about a drawing is what is visually significant and the re-drawing of an existing drawing with a few minimal alterations does not make it an original artistic work, however much labour and skill may have gone into the process of reproduction…”.
(At page 262-263) “Skill, labour or judgment merely in the process of copying cannot confer originality.”  
(At 263 C) “Of course, even a relatively small alteration or addition quantitatively may, if material, suffice to convert that which is substantially copied from an earlier work into an original work.  Whether it does so or not is a question of degree having regard to the quality rather than the quantity of the addition.  But copying, per se, however much skill or labour may be devoted to the process, cannot make an original work.  A well executed tracing is a result of much labour and skill but remains what it is, a tracing.”
(At 263 G)  “The post 1972 drawings do demonstrate some very minor visual deviations from the original pre-1973 drawings from which they are derived, but they are visually insignificant…”.
24.	Mr Arnold seeks to rely on these citations in the following way.  Where one has a part which has been derived from an earlier part, he seeks to say on occasion that design right originality can only be claimed in the later part if the changes from the earlier part are “visually significant”.  He then goes on on the facts to say that the changes were not visually significant.  I do not think that that is the correct approach.  In Interlego the position was that the later drawings started life as, in effect, copies of the earlier drawings.  There was an act of copying of the same nature as tracing, or, in the terminology of the Court of Appeal in Farmers Build, photocopying.  To that were added some very minor changes.  Where that is the situation, one can apply the “visually significant” terminology of Lord Oliver, and the test sought to be applied by Mr Arnold, in order to decide whether the second work is original.  However, it is important to appreciate that the starting point in that case is an act of copying.  Where that is found to be the starting point in relation to any of the parts in the present case, the test can then be applied.  However, where copying is not the starting point, the test is unhelpful.  Where all that the evidence shows is that design B was “based on” or “derived from” design A, copying in the “tracing” or “photocopying” sense is not necessarily made out.  Of course, if there are no visually significant differences, then that may support an inference of copying, and therefore lead to a finding of unoriginality, but that is using the test for a different purpose.  It is important to bear in mind the purpose for which the test is being deployed and I do not think that Mr Arnold’s utilisation of it does so.
25.	There are instances in the present case where it is admitted that the design of a later part was based on the design of an earlier part but with modifications.  An example is the DC01 wand handle, which went through three designs.  The later two designs are variations of the first (and in the case of the second variation the change was to only a minor part).  At one stage Qualtex believed that Dyson was claiming design right in the whole of each of the later two designs.  However, at the trial it was made plain that Dyson did not put its case like that.  It accepted that, on the facts, later designs were copies of large parts of the earlier design, and where that was the case it claimed design right only in the first embodiment of the aspect of the design in question.  Where there was a modification, it did not seek to say that the “republication” (my word) of the new article led to a claim to design right in the whole.  Dyson merely claimed design right in the modified part as from the date of the modification and relied on its claim to design right in the remainder from the date when that remainder was first made available for sale.
Design rights in part of an article
26.	Section 213(2) of the Act provides as follows:
(2) In this Part “design” means the design of any aspect of the shape or configuration (whether internal or external) of the whole or part of an article.

27.	There is no real dispute as to the material application of this sub-section.  In conjunction with subsection (1) it confers protection on parts of the design, as well as on the whole of the design.  This is emphasised by sub-section (3) which limits design right in “a feature of shape or configuration of an article” having certain qualities, and was confirmed in A Fulton Co Ltd v Totes Isotoner (UK) Ltd [2004] RPC 16:
“Parliament has gone out of its way to to protect not only overall designs but also parts of overall designs.” (per Jacob LJ at para 35).

28.	As a refinement, Mr Arnold submitted that the ability to claim design right in a part of a design in a case such as the present depends on that part being “visually significant”, basing himself on an observation of Jacob LJ at paragraph 16, but in my view nothing in this case turns on such a refinement.   All design aspects in this case would fall into the category of “visually significant”.  
29.	The effect of this provision, and the provisions of the Act which remove certain features from design right, is that the parts in question have to be notionally dissected so that the provisions of Part III can be applied as appropriate to the various dissected-out parts. 
Method or principle of construction
30.	Subsection 213(3) provides for three matters in respect of which design right does not exist.  The first is as follows:
“(3) Design right does not subsist in –

(a)  a method or principle of construction …”

Qualtex rely on this in relation to certain limited aspects.   It will be more convenient to consider this provision in the context of one of the limited number of aspects of the parts in relation to which it is said to arise.  

Must fit
31.	This is the well-known shorthand for the provisions of section 213(3)(b)(i) of the Act, which reads as follows:
“(3) Design right does not subsist in –

(b)  features of shape or configuration of an article which –

i)	enable the article to be connected to, or placed in around or against, another article so that either article may perform its function …”

For the sake of convenience I shall continue to use the shorthand description “must fit” even though there are dangers in so doing.  The words “must” and “fit” do not appear in the section, and (as some of the cross-examination in this case came close to demonstrating) there is a danger that relying on those words will lead one away from the actual words of the section in a way that becomes misleading.  The word “fit” does not entirely adequately encapsulate the range of juxtaposition that can bring the section into operation, and the imperative element of the word “must” does not sit entirely happily with the wording of the section either.  However, as long as the shortcomings of the abbreviation are borne in mind, and as long as the full wording of the section is referred to in relation to controversies, then the abbreviation will do.

32.	The purpose of this exception was explained by Laddie J in Ultraframe UK Ltd v Clayton [2003] RPC 23, 435.  At paragraph 73 he said:
“On the other hand a new form of right, design right, was created to give a much shorter, but essentially copyright-like, type of protection.  The legislature seemed to think that this disposed of most of the abuse which was thought to have flowed from the way the law was applied under the 1956 Act.  There was no need for a broad spare parts exception of the British Leyland type. On the other hand proprietors of design rights were not to be able to secure a completely watertight protection for their designs.  The must fit and must match provisions were drafted so as to limit design right but in narrowly defined ways.  As a broad generalisation, the must fit exception stopped manufacturers from monopolising the market in spares and consumables by preventing them from obtaining design right in the interface between the consumable or spare and the rest of the article.  If a trader wanted to copy a consumable for, say, a photocopying machine, for example the photosensitive drum kit, he was to be entitled to make his own drum kit.  To ensure that it fitted into the original equipment, those features, but only those features, of the original design which enabled the drum kit to fit could be reproduced.  This did not mean that it was permissible to copy all the rest of the features of the drum kit.

“The point can be put in a slightly different way. When the legislature included the must fit provisions in the Act, was it intending to ensure that competitors were to be able to supply the same component, or merely something which fitted into the composite article of which it was a part?  If the latter, then it is only the interface which is excluded from protection, not the rest of the design.  If it is the latter, the competitor has to do his own design work except for the interface.  In my judgment it is tolerably clear that the legislature only wanted to deprive the interface feature of protection.  Similar considerations applied to the must match provisions.  In addition to this, it must be borne in mind that design right applies to functional designs.  Therefore, the fact that a component for a composite article is functional does not, per se, mean that its features fall within the must fit provisions.  They may or may not.”
33.	Mr Carr emphasised the words “narrowly defined ways” as indicating that this exclusion was intended to be narrow.  I do not think that is quite the right way of reading what Laddie J said.  He was contrasting a broad general spare parts exemption, as foreshadowed in the British Leyland case, with the technique adopted by the legislature of a more closely defined exemption (or exemptions) of which the “must fit” exemption was one.  The words of the provision do not have to be viewed particularly narrowly, or indeed particularly widely.  They can be understood to mean what they say, and Laddie J gives a clear indication of how they operate. In particular, the parts of the design between, or away from, the conjoined or fitting parts is not within the exemption.
34.	This consideration by Laddie J followed from what he had said in Ocular Sciences v Aspect Vision Care Ltd [1997] RPC 289 at 424.  In that judgment he said:
“Furthermore a feature which meets the interface criteria must be excluded even if it performs some other purpose, for example that it is attractive. There is also nothing in the provision which requires the feature to be the only one which would achieve the proper interface. If a number of designs are possible each of which enables the two articles to be fitted together in a way which allowed one or other or both to perform its function, each falls within the statutory exclusion….
Mr Waugh, who argued this part of the case on behalf of the plaintiffs, said that this provision could have no application to the design of contact lenses. Even if all the features of his clients’ designs are there to enable the lenses to fit on the eyes and under the eyelids, section 213(3)(b)(i) is irrelevant. For the latter to operate the design features of the article in suit, i.e. the contact lens, has to be there to interface with another article. But, he said, an eye is not an “article” at all. It is part of the human body. The word “article” means something inanimate which is not and never has been alive. No support for this submission is provided by any of the dictionaries I have looked at but, in the end, I do not think that this is a matter of dictionary definition. What counts is the presumed legislative intent behind the provision. It seems to be that the subsection is drafted in wide terms to exclude all interface features. The word “article” is not intended to have a restricted meaning. It could just as well have been replaced by the word “thing”. I can see no reason why it should be construed so as to exclude living or formerly living things. There is no apparent policy consideration which justifies allowing, say, the features which enable a false hip to be fitted into the hip joint of a human to fall within the ambit of design right whereas the same features on a child’s doll are excluded. I reject this submission.”

From this part of his judgment one can extract the following propositions, which are of significance for the present case:

i)	It does not matter if there are two ways of achieving the necessary fit or connection between the subject article (the first one referred to in the sub-section) and the article to which it fits or with which it interfaces.  If the design chosen by the design right owner is a way of achieving that fit or interface, then it does not attract design right no matter how many alternative ways of achieving the same “fit” might be available.
ii)	For the purposes of the sub-section, the article with which the subject article is interfacing can be part of the human body.   This might have had relevance in the present case because some of the parts (triggers and a catch) are designed to interface with the human finger or thumb.  However, Mr Arnold disclaimed reliance on this – he did not rely on the finger or thumb as a must fit item in the context of any article in the present case.   
iii)	The sub-section operates to exclude design right even if the relevant part of the design performs some function other than the function described in the sub-section – for example, it is decorative, or has an additional function not falling within the provision.  This additional function does not exclude the operation of the provision.  
Surface decoration
35.	This is excluded from design right by section  213(3)(c), which provides:
“(3) Design right does not subsist in –

………
(c)	surface decoration”.

36.	In the present case there are two aspects of Dyson’s design that are admitted to be surface decoration, namely a silver flecking in the grey plastic and the colouring of the plastic itself.  However, other aspects are claimed by Qualtex to be surface decoration, and these are disputed.  In the main they are ribbing detail, and I will come to it in due course, but for present purposes it is convenient to provide the legal framework for considering those points.
37.	This provision was considered by Jonathan Parker J in Mark Wilkinson Furniture Ltd v Woodcraft Designs (Radcliffe) Ltd [1988] FSR 63.  In that case the judge had to consider features on kitchen units.  Those features were a painted surface, cockbeading on the unit doors and door frames, V-grooves cut into vertical surfaces, quadrant corners of the units, recessed door panels and the profile of a cornice around the top of the unit.  The first three were held to be surface decoration, but the remainder were not.  In coming to that conclusion Jonathan Parker J said (at pages 72-3):
“There is no assistance given in the 1988 Act as to what does or does not constitute surface decoration. In my judgment, the expression “surface decoration” in section 213(3) and section 51 is apt to include both decoration lying on the surface of the article (for example, a painted finish) and decorative features of the surface itself (for example, beading or engraving). It was suggested in argument that the meaning of the expression “surface decoration” should be confined to features which are essentially two-dimensional, for example a painted finish. I can see no reason to give the expression such a restrictive meaning, nor can I see any reason why what would otherwise be surface decoration should cease to be surface decoration merely because it also happens to serve some functional purpose, for example decorative beading which serves to conceal a joint.  “

The judge’s findings in relation to the features that were surface decoration were based on what the judge thought plainly to be the case.  In relation to the V-grooves he said:

“The V-grooves are, in my judgment, plainly surface decoration.  Mr Wilkinson told me in evidence that he used the V-grooves as a decorative device to highlight the rounded corners (that is to say the quadrant corners) and, viewed objectively, that is what they achieve”.  

On this basis something standing proud of the surface can still be surface decoration.  However, a line has to be drawn.  Jonathan Parker J drew it thus: 

“On the other hand, I do not regard the cornice as surface decoration.  To do so would, in my judgment, involve straining the natural meaning of that expression.  The same applies in my judgment to the profile of the cornice which dictates the shape of the cornice as a whole.  Nor could the quadrant corners or the recessed panels be characterised as surface decoration.  They too form part of the overall shape and configuration of the unit and are as such liable themselves to be the subject of surface decoration.”

The distinction the judge draws here is between items which are surface decoration on the one hand and items which are part of the “shape of the cornice as a whole” or “the overall shape and configuration of the unit” on the other.  This distinction was espoused and relied on by Park J in A Fulton Co v Grant Barnett & Co Ltd [2001] RPC 16 at para 78:

“[The features in question] do not seem to me to be mere surface decoration.  On the contrary, I consider that they are significant parts of the shape and configuration of the case …”  
He went on to say:

“… I do not accept that a design feature which … exists in a third dimension, but only in a small third dimension, must be surface decoration.  It might be, but it does not have to be.  There is a value judgment for the court to make …”

It was also relied on by Mr Recorder Christopher Floyd QC, sitting in the Patents County Court, in Hi-Tech Autoparts Ltd v Towergate Two Ltd (No 2) [2002] FSR 16.   In relation to the relevant features in his case (projections on a car floor mat) he held:
“They are an important part of the configuration of the article as a whole.   They are not merely decorative features which have an incidental functional effect, like the example of beading over a crack in Mark Wilkinson.  … I am satisfied in any event that the dominant consideration was the functional importance of the circular protrusions.  Moreover the question here is not whether the design is aesthetic, but whether it is merely surface decoration.”
38.	Accordingly, when I come to consider the parts to which this exemption is said to apply, I shall consider them on the following basis:
a)	There is a useful distinction between surface decoration on the one hand and the overall shape and configuration of the product on the other. 
b)	That distinction may be clear in some cases, but overall it may well be a matter of fact and impression, or a value judgment.
c)	A subsidiary functional purpose does not take the design aspect out of this exemption if the primary purpose is surface decoration.  However, the additional purpose has to be subsidiary.  This means that I consider that it is likely that this qualification is unlikely to apply in many cases.  If an item of decoration has a functional purpose, then it seems to me that it is going to be difficult to say that that functional purpose is sufficiently subsidiary to make the feature surface decoration (or “mere” surface decoration, to use the qualification applied by Park J and Mr Recorder Floyd QC).  In truth, I think that the subsidiary purpose of beading that is used to conceal a joint can also fairly be described as decorative.
d)	I can take into account the expressed intention of the designer.  Jonathan Parker J obviously did that.  This is not determinative, but it is useful material, particularly in relation to functionality.

Commonplace

39.	Subsection 213(4) adds another rider:
“(4) A design is not “original” for the purposes of this part if it is commonplace in the design field in question at the time of its creation.”

“Commonplace” is not to be confused with lack of novelty.  It is a narrower concept than that.  A design which has occurred before is not novel; but the fact that it exists elsewhere does not necessarily make it commonplace.  The flavour of its meaning was captured by Laddie J in Ocular Sciences at pages 428-9:

“It is always undesirable to replace one ambiguous expression by another, and for that reason it is not right to redefine the word “commonplace” in 1988 Act, but it seems to me that the flavour of the word is much along the lines suggested by Mr Pumfrey. Any design which is trite, trivial, common-or-garden, hackneyed or of the type which would excite no peculiar attention in those in the relevant art is likely to be commonplace. This does not mean that a design made up of features which, individually, are commonplace is necessarily itself commonplace. A new and exciting design can be produced from the most trite of ingredients. But to secure protection, the combination must itself not be commonplace. That is what the European Directive and 1987 Regulations say expressly and what is implicit in the 1988 Act. In many cases the run of the mill combination of well known features will produce a combination which is itself commonplace.”

Laddie J deliberately eschewed providing a definition, and that course of conduct was approved in Farmers Build by Mummery LJ, who also approved the partial paraphrasing (see p 477) whilst providing some more (see p478).   Mummery went on to provide guidance for a court faced with a “commonplace” claim.  At p 482 he set out that guidance.  Having said that the first question is whether the design is original, he went on to indicate the approach if it were found that it was.

“(3)	If the court is satisfied that the design has not been copied from an earlier design, then it is “original” in the “copyright sense”. The court then has to decide whether it is “commonplace”. For that purpose it is necessary to ascertain how similar that design is to the design of similar articles in the same field of design made by persons other than the parties or persons unconnected with the parties.  [I interpose to say that it seems to me that the word “unconnected” should probably read “connected”.] 
(4)	This comparative exercise must be conducted objectively and in the light of the evidence, including evidence from experts in the relevant field pointing out the similarities and the differences, and explaining the significance of them. In the end, however, it is for the court and not for the witnesses, expert or otherwise, to decide whether the design is commonplace. That judgment is one of fact and degree according to the evidence in each particular case. No amount of guidance given in this or in any other judgment can provide the court with the answer to the particular case. The closer the similarity of the various designs to each other, the more likely it is that the designs are commonplace, especially if there is no causal link, such as copying, which accounts for the resemblance of the compared designs. If a number of designers working independently of one another in the same field produce very similar designs by coincidence the most likely explanation of the similarities is that there is only one way of designing that article. In those circumstances the design in question can fairly and reasonably described as “commonplace”. It would be a good reason for withholding the exclusive right to prevent the copying in the case of a design that, whether it has been copied or not, is bound to be substantially similar to other designs in the same field.
(5)	If, however, there are aspects of the plaintiff’s design of the article which are not to be found in any other design in the field in question, and those aspects are found in the defendant’s design, the court would be entitled to conclude that the design in question was not “commonplace” and that there was good reason for treating it as protected from misappropriation during the limited period laid down in the 1988 Act. That would be so, even though the design in question would not begin to satisfy any requirement of novelty in the registered designs legislation.”
40.	In order to come within this exception the design (or aspect) has to be “commonplace in the design field in question”.  This raises two questions in the context of this case:  First, what is the design field, and second what, if any, territorial limitations are there in relation to that field.  
41.	At one stage it appeared that there might be a dispute as to how confined the defined “design field” was supposed to be.  However, in the end it was accepted by both sides that the design field was that of vacuum cleaners.  That was the field of research of Mr Hulme, acting as expert, when he was addressing the point in his expert’s report.  So far as it was not agreed, then I so determine.  The question of the scope of the field will be a question turning on the facts of each individual case.  In my view that is the only meaningful field in the present case. 
42.	I was also addressed on the extent to which it was necessary to confine the relevant field to a field in which the relevant product had been marketed.  In Fulton v Totes  at first instance ([2003] RPC 27) Judge Fysh QC had to consider what he described as “the territorial question”, namely whether 
“a defendant who is seeking to show that a design is commonplace [is] entitled to rely upon prior designs which have also been marketed in a foreign country or can the defendant only rely upon designs which have been marketed in the United Kingdom?” (para 68).  

(I think that the word “also” might be misplaced in that formulation.)  The real question in that case was whether commonplace meant “commonplace in the United Kingdom” or whether it meant “commonplace anywhere in the world”.  One can see that from the question posed in paragraph 73:

“What relevance to the United Kingdom market has a design which is commonplace in Vanuatu?”

Judge Fysh’s conclusion was that there was a territorial limitation to the United Kingdom:
“I would therefore restrict the ‘commonplace’ inquiry to what was available in the United Kingdom at the time the design was created.”
43.	This was not the subject of challenge when the case went to the Court of Appeal.  Dyson rely on that determination, and say that the inquiry in the present case should therefore be confined to designs which were available, in the sense of marketed, in the United Kingdom.  The relevance of that is that when it came to commonplace, Qualtex relied on prior art which was extra-territorial and in relation to which there was no evidence that the relevant product had ever been marketed.   Qualtex did not dispute the territorial limitation, but did dispute that it was necessary to find designs that had been marketed in the United Kingdom.   If one had a design field that was international, one might have a commonplace design which appeared internationally, and of which UK designers would be aware, even if the relevant design were never marketed here.  In support of this proposition Qualtex relied on Scholes Windows Ltd v Magnet Ltd [2002] FSR 10.
44.	Scholes concerned one particular aspect of the design of U-PVC sash windows (“horns”).  The question was whether the design field comprised windows generally on the one hand, or whether it was limited to U-PVC windows, casement windows, or to U-PVC casement windows on the other.  The trial judge held in favour of the former, and his finding was upheld by the Court of Appeal.  Then the court went on to consider a point based on the time of creation.   The defendant had submitted that the design in question was not commonplace because although the designs were still apparent at the time in question (1994) because one could see them on old houses (and in designs in a windows collection called the Brooking Collection), it was not commonplace because it had not been produced in windows since about 1915.   The judge had apparently rejected this argument and taken the historical designs into account (see paragraph 39).  Mummery LJ rejected this submission:
“44.  In my judgment, there is no misdirection or error of principle in the approach of the deputy judge to “old” designs of horns.  The statutory question does not depend on when other designs in the design field with which comparison is to be made were first produced or on when they were in use or whether they have fallen into disuse and become “historical designs”.  The relevant question is “Is the design in which the right is claimed commonplace?”  That question is to be determined by having regard to the “design field in question at the time of creation”.  There is nothing in these provisions which expressly or impliedly excludes from consideration existing designs, which were first produced at an earlier time than the design in suit, if they can be fairly and reasonably regarded as included in the design field in question at the time of the creation of the design in suit.  The fact that they could still be seen by designers and interested members of the public as a feature of windows on many houses in July 1994 is a relevant factor in deciding whether or not they were in the design field at the date of creation and were common place within the meaning of subsection (4).”

45.	In my view this reasoning tends to support Qualtex’s submissions on this point.  The emphasis of the reasoning is to require the court to have regard to designs which could be seen, rather than designs which were marketed.  It is doubtless true that there once was a market in the historic designs, but that is not what was important.  What was, and is, important is what is apparent to those operating in the design field in question.  It may be that it is hard to envisage how a design can acquire sufficient status in the field without its appearing in a marketed product, but that is matter of practicality not theory.   Accordingly Mr Arnold is right to say that commonplace does not depend on marketing.  It follows that he is also right to say that it does not depend on marketing in the UK.   He accepted, however, that the design must be commonplace in the UK in the sense that UK designers in the field would have to be aware of the design to an extent sufficient to make it commonplace if the statutory exemption is to operate.   In that sense the territorial qualification found by Judge Fysh in Fulton v Totes would be fulfilled.
46.	In Ultraframe Laddie J indicated the stage of the analysis at which it was appropriate to apply the commonplace test.  It occurs after the other exceptions have been applied (or not applied) as appropriate.  He said:
“Therefore it is possible for design right to subsist in the design of the part of the article, which is not excluded under the must match provisions.  The combination of features left after individual features are excluded under these provisions is the design in issue.  If that combination of features is commonplace, the design is not protected.”
It was common ground that that is how the matter should be approached in this case.  
47.	I shall therefore approach this question of commonplace as follows:
i)	I shall give it the meaning elaborated on by Laddie J and the Court of Appeal as appears above.
ii)	I shall adopt the logical approach referred to in Ultraframe and consider the other alleged exceptions to see what is left after they have been properly applied.
iii)	Where it is appropriate to consider commonplace I shall consider whether the design is commonplace in the United Kingdom, to which question the marketing of the other article or articles in which the design appears will be relevant but not essential.

Design document

48.	Section 213(6) provides:
“(6) Design right does not subsist unless and until the design has been recorded in a design document or an article has been made to the design.”

This is one of the few aspects of design right that does not give rise to any particular dispute in this case.   It is established that design documents exist or existed for all the designs in this case, and no point turns on their dating.

Duration of design right

49.	Section 216(1) provides for the duration of design right.  So far as material to this action it provides as follows:
“216 – (1)  Design right expires – 

(a) [not applicable]

(b) If articles made to the design are made available for sale or hire within five years from the end of that calendar year, ten years from the end of the calendar year in which that first occurred.”

It is common ground that it is paragraph (b), and not paragraph (a), that applies in this case.  There are, however, disputes as to how it applies in relation to some designs.  There are disputes of fact as to when certain of the parts were first made available for sale, which I shall have to resolve.  There is also a dispute of law as to what is meant by the expression “made available for sale” in relation to the DC01 wand handle.   There is evidence that prototypes were shown to catalogue companies some months in advance of the first production models (as opposed to prototypes or pre-production models) being physically available for sale to anyone.  Qualtex says that articles made to the design are made available for sale or hire if one is exposed for sale even if no articles have yet been manufactured, and in particular when orders are placed and accepted for them on the face of pre-production models.  In due course I will have to consider whether this provision is capable of bearing this meaning, but I shall do so later in this judgment in the context of the facts as I find them to be.

50.	Under section 237(1):
“(1)  Any person is entitled as of right to a licence to do in the last five years of the design right term anything which would otherwise infringe the design right”

If and insofar as there is design right in any of the parts which are the subject of this action, it arose at various times depending on the history of the item in question.  Where its commencement was more than 5 years before the date of this judgment, and an undertaking to take such a licence of right is given in accordance with s.239 of the Act, injunctive relief would not be appropriate.

Must match
51.	A large part of the evidence and dispute in this case turned on this provision, namely section 213(3)(b)(ii):
“(3)  Design right does not subsist in – …… 

(b)  features of shape or configuration of an article which – 

(ii)  are dependent upon the appearance of another article of which the article is intended by the designer to form an integral part …”

It is the application of this provision to the present case that has the widest potential consequences for the pattern parts trade as a whole.   I can illustrate that, and some of the issues that arise, in the following manner.  In Ford Motor Co Ltd’s Design Applications [1994] RPC 545 the Divisional Court (McCowan LJ and Curtis J) heard an application for judicial review of a decision of the Registered Designs Appeal Tribunal ([1993] RPC 399), and of an earlier order of the Registrar of Designs.  The designs in question were designs for spare parts for cars, including body panels.   One of the statutory provisions in question was a provision introduced into the Registered Designs Act 1949 and which was identical in wording to the “must match” provision of the 1988 Act quoted above.  The Tribunal (Mr Julian Jeffs QC) had held (obiter) that body panels such as doors fell within the provision, so that they could not be registered within the registered designs regime.   If the panels required replacement, they required replacement by one which, for all practical purposes, looked like the original.  The Divisional Court (again obiter) approved that finding.  At its highest, the case of the defendants is similar in respect of the major (in terms of size) components in issue in this case – the two wand handles.  It is said that their contribution to the overall design of their respective machines is such that only a replacement of the whole will do.   The same point is made in relation to more limited aspects of other parts – there are parts of the design which have to be produced so that the part matches the rest of the machine.   The overall effect of this highest case of the defendants is that, at least in relation to externally visible parts with any design significance at all (which is many aspects of most parts), there is no design right with the result that the pattern parts trade can copy them at will.  
52.	As with other provisions, it will be necessary to consider the application of this provision in the context of particular parts, and at this point of the judgment I will set out the generally applicable considerations which seem to me to arise in relation to this section.  
53.	As a result of the British Leyland case and the White Paper, the concept of a general right to repair was in play or in contemplation.   Within that concept would be a consumer’s general right to source duplicate (replica) spare parts from anywhere, and ancillary to such a right would have to be a manufacturer’s right to produce such parts.  Those concepts were under consideration at the time, and there were arguments each way.  If Parliament had intended to resolved them in favour of conferring such general, and far reaching, rights then there would have been wording which would have achieved that end far more naturally than the wording of the must fit and must match provisions.   It did not adopt any such form of wording.  Instead it conferred design rights, limited in time, and limited in their practical effect in stopping competition by virtue of the compulsory licensing provision in section 237(1), and created what Laddie J described as limitations drafted “in narrowly defined ways” (Ultraframe at para 73). 
54.	So far as visual appearance is concerned, Parliament enacted the “must match” provision.  In doing so it provided wording which it is not easy to apply.  The following elements are relevant and have to be considered.
55.	One has to look at the subject article (“article 1”) and put it in the context of “another article” (“article 2”).  The question that arose in the Ford case was whether article 2 was the overall article minus article 1 (viz in that case the whole of the car minus the subject door panel), or whether it was the whole article including article 1 (viz the car including the subject door panel).  Both Mr Jeffs QC and McCowan LJ considered the latter approach was correct and rejected the former approach (which they called the “n-1 approach”).  While technically those decisions do not bind me on the point (because both were obiter), I shall follow them not least because they seem to me to be right as a matter of logic.  If article 1 is intended by the designer to form an “integral part” of article 2, then article 2 must comprise article 1.
56.	Next there is the sense in which the words “integral part” is to be taken.  What the provision requires is that article 1 has to be “intended by the designer” to form an integral part of article 2.  One therefore has to read in words to the effect of “in design terms” at the end of the paragraph.  
57.	That conclusion helps one to tackle the difficult word “dependent”.  In what sense is the design of article 1 to depend on the appearance of article 2?  It has to be in some design sense – that is the whole context of the provision.  But design dependency is a rather fluid and amorphous concept.   Most consumer hardware will have been designed externally so as to create what a designer (or the team of designers) sees as a harmonious whole.   To that extent any single constituent part might be said to be dependent on the appearance of the whole.  In the case of some parts it will be quite obvious to the most uneducated design eye that there are respects in which article 1 is dependent – for example, if there is an obvious curved shape which has to be sustained and bridged across a gap filled by article 1.  That, however, will be rare.  Absent that sort of consideration there may be a number of designs that would be harmonious, albeit perhaps following a theme.  An example of this in the present case is the ribbing on the DC01 wand handle.  The detail of the ribbing could be changed (and indeed was changed), without the later design destroying the harmony (dependency) in the earlier, or creating a greater harmony (dependency) in the latter.
58.	Mr Arnold’s approach to this is to say that the dependency is created by the designer.  If article 1 is in fact designed in such a way as to make its appearance depend on the appearance of article 2, then the section comes into play.   Dependency means no more than that.  In particular, it does not import any notions requiring it to be the only way of linking the appearances.   This can be illustrated by an example.  A car designer creates an overall design, which includes the design of the boot lid.  He has design freedom in many of the curves, lines and indentations of the lid (although he will, of course, be constrained by “must fit” matters at the very least).  He makes a choice, which, in terms of design, produces an acceptable overall appearance.  Mr Arnold would say that the appearance of the boot is “dependent” on the appearance of the whole car, because that is how it appears and that is what the designer intended.   Two years later there is facelift for the car.  The overall shape is the same, but the designer decides to change the boot a little. Those changes include some changes to the boot – a slight curve change, perhaps, changes in light cluster shapes and perhaps the number plate indent altered in a noticeable fashion.  While different from the original boot lid, it still looks as though it “matches” and fits into the overall appearance.   Again, according to Mr Arnold, the design of the lid is “dependent” on the appearance of the whole car, because the designer created that dependency when he saw the thing as an integral whole and designed it as such.    This example demonstrates two important aspects of his argument.  First, dependency does not pre-suppose a single available design solution; and second, dependency is a designer created thing arising out of the designer’s perception and his employer’s implementation of it.   Mr Arnold in fact put it round the other way, but it amounts to the same thing.  He said the shape of the boot is not independent of the shape of the car, both because it manifestly is not and because the designer did not intend it to be.  Independent is the antonym of dependent.  Therefore, cancelling out the double negative (“not independent”), the shape of the boot is dependent on the appearance of the whole car.
59.	This argument has some merit.   It produces something that is logically coherent, and that is workable.   However, it is not wholly consistent with the decision in the Ford case because it would have applied must match to the parts which Mr Jeffs QC thought it was not applicable to.    At page 419-420 of that case Mr Jeffs QC seems to have relied on the concept of leaving the appearance of the vehicle unchanged.  If a part can be changed without changing that appearance, then there is no dependency and design right can exist in the original part.  If it cannot be done without a change of appearance (such as a door panel) then there is dependency within the section.  The first of those positions is not consistent with Mr. Arnold’s point; the latter is.
60.	The main problem with this argument, as I see it, is its logical end and the paradox which it seems to me to introduce.  As I have already observed, most modern consumer goods are likely to have been produced from a designer’s pen (or CAD package).  If made up of more than one part (which, again, most will have been) then each of those parts is likely to have been designed with the others in mind, and to fit in.  In Mr Arnold’s reading of the section, the design of each will be dependent on the appearance of the whole because that is how the designer will have intended it.  The result of this is that the external aspects of most external parts will be exempted from design right.  That would make very large inroads into the rights that the statute creates, and might even be said fundamentally to undermine them.  That might be said to be justifiable and sensible if one’s point of view is that the consumer must be free to replace or repair those parts without being confined to the manufacturer’s parts, but I have already indicated that if that was Parliament’s intention it could have chosen some easier words to achieve it.   Furthermore, it leads to a paradox – the more thoughtful the design, the less likely it is to attract design right.  Design rights are presumably intended to give protection to the fruits of the design process.  A good design process will be designed to combine separate parts into a harmonious whole.  The more effort that is put into that, the more successful (and probably the more expensive) the exercise will be.  Yet the more successful it is, the more likely it is that there will be the dependency that Mr Arnold relies on.  Thus separately designed parts thrown together in a casual non-thought-out fashion will each attract design right, while the carefully combined parts of the conscientious aesthetic designer will not.  Mr Arnold did not  really accept that this paradox existed, or at least not as starkly as I have presented it, but I consider that it does.  Since it seems fundamentally to undermine the very right that the statute seeks to create, it causes me to question Mr Arnold’s analysis.
61.	Since the Ford case  addressed the same statutory wording in a design context, I have, of course, considered the extent to which the reasoning in that case assists.   There is some assistance to be gained there.  In the Appeal Tribunal Mr Jeffs QC observed (at page 419) that a car door panel could not be changed without changing “the general appearance of the vehicle”.  That is obviously true, but that is not the test contained in the section.   He then observes (at page 420) that:
“As a matter of practical commonsense, if a door panel is to be replaced, it must be replaced by one which, for all practical purposes, is the same as the original.”

That, too, is true, but does not assist in construing the section unless one presupposes that the section is intended to allow the reproduction of door panels (which is an assumption generally made, but is on analysis something of a bootstraps argument).  He goes on to consider, and to find, that one door must match its counterpart on the other side.  That again is true, and while that way of putting it falls into the trap of using words that the section does not use (“must” and “match”), it can be reconciled with the words of the section – the shape of one door is dependent on the shape of the counterpart door on the other side.  But it does not help if one is considering one-off items without a mirror-image counterpart (such as boot and bonnet lids).  Having considered items which fell within the test, Mr Jeffs then went on to consider some which did not – wing mirrors, wheels and others.  He observed that:

“All of them are visible on the car as sold but substitutions can be made without radically affecting the appearance or identity of the vehicle.”  

That implies a test of “radically affecting the appearance or identity of the vehicle”.   That might be said to be a workable, though not always easy, test for the purposes of working out dependency of appearance.  It is more likely to be fulfilled in the case of relatively larger parts as opposed to smaller parts, which is a somewhat arbitrary division.  It does not support Mr Arnold’s thesis, because his “designer-created dependency” would apply whatever the relative size of the parts (as its application to aspects of the Dyson machines demonstrates); and it does not totally avoid the paradox.

62.	In the Court of Appeal in Ford McCowan LJ relied on a different concept, namely design freedom.  It appears from page 553-4 that counsel for Ford submitted that “design freedom” was the concept at the heart of the case, though it is not quite clear how that was put.  At any rate, McCowan LJ deals with this way of putting it (in the context of the equivalent provision in the Registered Designs Act) at page 554:

“As to design freedom, Mr Silverleaf [counsel for the respondent part-makers] says that the question is whether the manufacturer of the spare part has design freedom.  If he has, then he is a candidate for registration.  If he has not, then he is not such a candidate.  The design freedom in the latter instance is in the original designer of the car.  So, with a particular spoiler which figured a fair amount in the argument, the maker of that spare part will have to produce one that looks exactly like the original, or it is unsaleable.  He has no design freedom.  I accept that argument.”

It  may be said that the use of the concept of design freedom is the deployment of another antonym of “dependence”.  However, I do not think that that is quite how McCowan LJ was using it, at least in the entirety of the passage just cited.  The design freedom that he refers to in the penultimate and (by inference) antepenultimate sentences look more like references to commercial freedom to me.  The designer in question has complete design freedom as a designer.  It is just that (in the Lord Justice’s example) he will not sell any of his product if he exercises it.  Unsaleability of a substitute part is no part of the test in section 213(3)(b)(ii), which focuses on the appearance of the substituted part, not the whole article.  It may, however, be a reflection of what Mr Jeffs said at first instance.   His test of “radically affecting the appearance” would have commercial ramifications, particularly in the case of things such as car body panels.  If a different design for article 1 would radically affect the appearance of article 2, then it might be expected that no substitute would be acceptable to a consumer, so the non-saleability becomes a sort of cross-check as to the radical (or otherwise) difference of article 2 with a different design of article 1 therein.  

63.	All that material is obiter, but it does point away from the broad effect that Mr Arnold’s argument would give to the section.  As I have observed, it does not completely avoid the apparent paradox, but some effect has to be given to the provision, and that effect will be to deprive some carefully designed articles of protection, so there is always going to be a tendency towards such a paradox.  On the other hand, it seems to me that the wording of the provision is not such as to demonstrate a clear intention that all visible spare parts, or replacement parts, should be outside the scope of design right (so far as their externally visible aspects are concerned).  As I have already observed, one would have expected more closely directed wording had that been the intention of Parliament, and to come to that conclusion would hugely undermine the conferring of design right in the first place.  Something between those two solutions seems to have been intended.  It seems to me that the degree of dependency required to bring an article or aspect within the must match provision is reflected in Mr Jeffs’ test.  This is also consonant with sensible policy.  The must fit provision presumably reflects a policy that manufacturers should not be able to hold consumers to ransom by maintaining a monopoly on aspects of products which have to be reproduced as a matter of function if replacements are required.  A competitor can therefore reproduce those aspects of design which, in practical terms, have to exist in order to make the necessary connections so that the bits can be made to work together.  The must match provision can equally be said to be consistent with a parallel policy that consumers should not be held to ransom by manufacturers maintaining a monopoly over those aspects of aesthetic design which, in common sense terms, have to be reproduced if after replacement or repair the customer is still to be left with something which is, in aesthetic terms, the same sort of article as he originally bought.   That policy would require a test along the lines of that suggested by Mr Jeffs, but would not mean that all spare parts with a visual aspect would fall outside design right.  The products which frequently seem to get cited as examples of the sort of thing in which there should be no manufacture monopoly, and therefore no design right, is car body panels, and the division that I have suggested would be in line with that view, though for my part I have seen no evidence or other material, of the kind which can properly be deployed in or by a court, which suggests that Parliament had car body panels particularly in mind as an obvious case.  If it be said that that approach holds consumers unreasonably to ransom (and I think that the principal behind Qualtex, Mr Hulme, would take that position) then the obvious counter is that Parliament cannot have intended the serious inroads into design right that his approach would create, and in any event the ransom period is limited because the right of exclusive production only exists for 5 years, after which there is a compulsory licensing regime (see section 237(1), dealt with above).  That state of affairs is clearly part of the balance that Parliament intended to strike.  
64.	Accordingly, when considering “must match”, I shall apply section 213(3)(b)(ii) by considering whether there is dependency of the kind, or to the extent, which would make the overall article in question (article 2) radically different in appearance if article 1 were not the shape it is.  That is not to substitute, or superimpose, a test different from that appearing in the statute.  It is to explain how the statute works.  This sort of consideration is inevitably one of fact and degree, and of impression.  It will doubtless be less than straightforward to apply in relation to various parts or aspects, but that is the nature of the beast.  The saleability of the item can be used as a sort of guide to assessment or a cross-check in any particular case. 
PART 3 – WITNESSES AND GENERAL EVIDENCE
Witnesses
65.	I have already observed that I have heard from a large number of witnesses.  Some of them were having to remember their activities of a number of years ago (in some cases more than 10 years ago), but I am satisfied that all the witnesses of fact gave their evidence honestly, frankly, without embellishment and without concealment.    Of the witnesses of fact, only one was criticised so far as to say his evidence was unreliable, namely Mr Richardson, a senior officer of Dyson.   Having heard his evidence I acquit him of that charge.  He, like all other witnesses of fact, was doing his conscientious best.
66.	I also heard from three expert witnesses – Mr Jupp (who gave expert evidence on design in relation to all parts), Mr Hulme (who gave expert evidence on design in relation to all parts except brushes) and Mr Hadfield (who gave expert evidence on brush manufacture and design).  Neither of the first two of them was fully independent in that they both had or have significant relationships with the parties (as a result of which both gave factual evidence as well).  Mr Jupp was Dyson’s expert.   He holds a manufacturing engineering degree and for almost 4 years between 1988 and 1992 was employed by Dyson.  In 1998 he resumed full time employment within the Dyson group and since February 2001 he has been Group Product Director of Dyson Limited.  In the intervening period he was a freelance design consultant, and for periods worked for Dyson (including a period working on one of the smaller parts which are in dispute in this action).  He is thus closely associated with Dyson.  Despite that, I found him to have achieved and demonstrated a genuine independence of view and to have discharged his responsibilities as an expert witness well.  He expressed himself moderately and carefully and in no way indicated that he was an advocate in a cause as opposed to an independent expert doing his best to assist the court.  He readily made concessions where concessions were required, and where he had not thought of certain things, and did not consider himself to be an advocate in his employer’s cause.  I was greatly assisted by his evidence.
67.	Mr Hulme has spent his adult life in the electrical repair trade.  He started out repairing things himself, and moved up through his various employers’ companies.  In 1961 he started the defendant company, and over the years he has built it up so that it is now a very substantial company.  He is its chairman and principal shareholder.  He estimates that it has almost half of the vacuum cleaner pattern spares market in the UK, and it operates the second largest pattern parts warehouse in Europe.  It is clearly a substantial company and a big player in the pattern parts market.  Mr Hulme is also a significant figure in that market with strong views on the need to have a pattern parts market and the undesirability (as he sees it) of letting OEMs have a monopoly, which he regards as having elements of bullying and oppression.  On two or three occasions in recent years he has assisted pattern parts suppliers in their disputes with larger OEMs.  He has obviously done so because he believes in the cause.   He sees the consumer as having to pay unnecessary millions of pounds per year more if the OEMs’ claims to design right (and other rights) are not kept in check.  His battles took him into court against Hoover in 1982 (Hoover plc v George Hulme (Stockport) Ltd [1982] FSR 565).  In that case, and significantly for the present case, he succeeded on a waiver defence.  
68.	There is nothing intrinsically wrong in Mr Hulme’s hositility to OEM monopoly in the spare parts trade, and he has impressed me as an entirely honest and honourable man.  However, I have obtained the firm impression that his attitudes have been allowed to colour his objectivity in this case so far as his role as an expert is concerned.  His views do not necessarily make him an inappropriate expert witness, but they risk imperilling his objectivity, and in my view that has, to an extent, happened in this case.   I think that from time to time he tended to don the mantle of a crusader or advocate, rather than that of an expert witness, and there are times when I think that his evidence of opinion (particularly on commonplace) has to be treated with considerable caution. 
69.	Both Mr Jupp and Mr Hulme gave some evidence of fact as well as their expert evidence.  I accept Mr Jupp as an honest and truthful witness of fact. Mr Hulme was also honest in his factual evidence, though his hostility to the interests of the OEMs sometimes overlaid a certain gloss on his evidence.   
70.	The other expert was Mr Ronald Hadfield.  He is the technical consultant to the Accrington Brush Company Ltd (“ABC”) and has a considerable background in engineering.  He joined ABC as an engineer in 1969 and after 18 months he was promoted to general manager.  When he reached retirement age (65) he was asked to stay on to help develop younger employees.  There can be no doubting his expertise in technical brush-making matters.  It was to ABC that Dyson turned for bristling matters (and a certain amount of input at the design stage), and Mr Hadfield gave some factual evidence as well as expert evidence on bristling matters.  In addition to his expertise being beyond doubt, his honesty was beyond doubt as well and he was brutally frank about some of Dyson’s bristling ideas.  He was a helpful and credible witness, and so far as I do not accept the full force of everything that he said to me (which is rare) it is only because of what I think are differences of perception rather than unreliability or an attempt to mislead.
Dyson machines as design icons
71.	In the discussion on the “must match” provision above I have referred to the extent to which modern consumer goods are the subject of detailed design.  The level of design will obviously vary from product to product, but it is quite clear that the Dyson vacuum cleaners with which I am concerned are extremely carefully designed with a considerable amount of overall design originality (by which I do not intend to pre-judge any of the technical originality questions which arise in this case).  They were described in the case before me as “design icons”, to the extent that various models have found their way into important museums as exhibits.  Even Mr Hulme, who is no admirer of the capabilities of the machines, expressed himself to be very impressed with the extent to which the design has contributed to a very successful marketing achievement over the last 10 years or so.  The evidence of the designers who gave oral evidence before me demonstrated the attention to detail, and the careful design considerations, that went into the various machines.   In relation to some of the parts in issue, it is said by Qualtex and its witnesses that the importance of the design leads customers to require parts which look like the Dyson original parts, rather than replacements which function the same but look different.  I shall have to consider the extent to which that is true and relevant in relation to the parts in respect of which it arises, but for present purposes I observe, and find, that each of the Dyson machines, and therefore their individual constituent parts, have been carefully designed to produce a certain, deliberately contrived, look and appearance.  Dyson’s founder (Mr James Dyson) said as much in his autobiography “Against the Odds”, parts of which were put before me (Mr Dyson himself did not give evidence, which caused Mr Arnold to make some submissions about “Hamlet without the Prince”, but at the end of the day did not have any real significance in the case bearing in mind the issues involved and the witnesses from whom I did hear). 

PART 4 – DESIGN RIGHT APPLIED TO THE PARTS
The subject parts – generally
72.	I now turn to the various parts in issue in this case.  In shall take them one by one, cross-referring back to my decisions on the law where appropriate, and elaborating on the law where it is necessary in the context of any particular part.  I shall in the main concentrate on aspects of the parts which are in dispute.  There was one area in which there was from time to time a significant measure of agreement, and that is must fit.   Qualtex proposed a lot of must fit exceptions, and Dyson agreed with a lot of them either in its pleading or via Mr Jupp in his report and in evidence.  I have not cluttered up the body of this judgment with a record of what aspects were agreed in this respect; a short description of them appears in a Schedule at the end of the judgment without discriminating whether they were pleaded or conceded at some stage (and if so which) by Mr Jupp.  Copies of photographs of each part appear in a separate Annexe (Annexe B).  
73.	From time to time Mr Carr complained that Qualtex’s case was what he described as a moveable feast.  The Defence made certain claims as to the applicability of the design right exceptions to various parts.  Mr Hulme’s various reports often went further in some respects and sought to apply them to additional features.  Mr Jupp’s report met the pleaded case.  Mr Carr was happy to take Mr Hulme’s report as being the final position  on which he was entitled to rely, and not take a pleading point in relation to differences.  However that was where the line should be drawn, he said, and Qualtex should not be allowed to go beyond that.  On occasions Qualtex’s case sought to do so.  I accept that as a general approach, and will myself adopt it, though with a certain measure of flexibility where I think I can fairly deal with the point anyway.  
1992 DC01 wand handle
74.	I have already described the wand handle and its function.  It can be seen on the annexed photograph.   This wand handle, as such, was not copied by Qualtex.  Historically there were three versions of Dyson’s wand handle (in 1992, 1995 and 1997), each of which was recognisably the same, but the latter two had some changed details.  What it copied was the 1997 version.  However, the 1997 version was itself a variation of the 1995 version, which itself was a variation of the 1992 version.  Important aspects of the design and the design right (if any) go back to that 1992 version, so it is necessary to consider the details of that design.
75.	The details of the relevant parts of the wand handle can be seen on the photograph appearing in the Annexe.   I need to describe the detail.  
i)	The handle is angled back towards the user.   It is hollow from the top, down past the angle and down to the part where it widens, where this hollow tube meets the aluminium tube to which I have referred.  This is the air pathway when the wand is removed from the machine and used for above-floor cleaning.  
ii)	Starting at the top, its construction is as follows.  At the top there is a partially ball-shaped bulge, with ribbing on it.  In the two middle valleys between the ribbing there are two slots in the front surface, and two in the back, which connect the interior of the bulge with the exterior.  
iii)	If one looks down at the top of the bulge, one can see the upper end of the tube which defines the airpath up from the lower areas of the handle.  There is a small clearance between the outer wall of this tube and the inner wall of the bulge.   The walls of this inner tube are not complete cylinders.  At the top of the tube there are two opposed semi-circular cut-outs which allow the air at the end of the tube to communicate with the air in the small clearance area around the inside of the bulge.  This, combined with the slots referred to in paragraph (ii),  is a safety feature.  If the end of the handle becomes blocked, air can still pass down the tube via the slots and the cut-outs – it is a bleed feature.  This prevents the motor burning out, and also guards against some of the dangers to an eyeball if it were pressed against the end of the tube (a gory event which the designers apparently had in mind but which fortunately they had never heard of as occurring).   When a tool is fitted into the end of the wand handle its rounded connecting tube fits over the inner tube shape, so that it fills the gap between that tube and the inner wall of the bulge.
iv)	Below this bulge and at the rear of the handle is a series of grooves cut into the surface which would naturally be gripped by the user’s hand.  These are said to be to enhance the grip.
v)	Below that there is a series of ribs.  At least one of the purposes of these ribs is to act as a design feature, to disguise the change in width of the handle (which is apparent from the drawing).  There is a dispute as to whether they are there to enhance grip.
vi)	Below those ribs, at the rear of the handle, is a short horizontal tube feature.  This tube is to form something around which the mains cable can be wound (it is wound round a tab towards the bottom of the machine at the other end) and to seat a rotating tab whose “legs” sit in the tube and which, when rotated vertically, stops the cable slipping off.   The whole feature is a cable winder; the tubular feature is the cable winder boss.    
vii)	Opposite that feature, on the front, is a release catch.   The catch is hinged to the wand handle at the handle’s lower end.  It sits around, but not touching,  the lower  part of the handle, and is permitted to move towards the handle when “squeezed” by the user.  When it does so, a lip on the front of the catch disengages from the body of the machine, allowing the release of the wand.
viii)	Each of the catch and the handle has a four-legged, cross-shaped (in plan view) opposing spigot.  A spring sits over both spigots, resisting the movement of the catch when the machine is released and springing it back when the movement is finished.
ix)	Beneath the area of the spring, and around the spigot, is some additional ribbing.   This ribbing was not produced on later versions, and is not material to this action.  I need not deal with it further.
In line with the approach adopted in this case, it is necessary to consider each of the handle, catch and cable winder separately.

1992 DC01 wand handle 

1992 DC01 wand handle - originality

76.	The principal designer of the handle was Mr Gareth Jones.  He gave evidence that his starting point for his design was the Cyclon.  This earlier machine (from the first half of the 1980’s) had a similar wand – a metal tube connecting into a bent handle which fitted into the body of the machine by a catch, with ribbing at the bottom of the handle and grooves at the back of the top half of the handle, surmounted by a ribbed bulge portion.  That verbal description, however, sets out only the nature of the elements.  It does not demonstrate copying.  The test for originality is whether or not the design is copied in the tracing or photocopying sense (treating those as an analogy for these purposes).  If one compares the detail on the two parts (which I have had the opportunity of doing) one can easily see that there are many differences which indicate that the later handle is not a copy of the first in that sense.  There are differences in the shape of the bulge, in the detail and position of the ribbing, fundamental differences in the catch arrangement, and differences in the position of the grooving.  All this is consistent with the later design being based on the former but not being copied, which is Dyson’s case.  Mr Jones denied copying, and pointed out  the differences.   I accept his evidence that the Cyclon handle was merely the starting point for his design – the place from which he got some of his ideas – but he did not copy it or any aspects of it.  
77.	Mr Arnold submitted that apart from the bulge at the top (though the ribbing there is said to be non-original), and the cable winder boss (which does not appear at all on the Cyclon handle), the 1992 wand handle is not original over the Cyclon handle.  He submitted that once the derivation is admitted (which it was), the next question was whether any differences were visually significant.  If they were not, then the later design was not original.  Differences have to be visually significant for there to be originality.  I have already decided against this argument in the context of considering originality above.  It therefore does not assist him.  Furthermore, even if I were wrong about that, then he would fail on the facts.  The Cyclon wand handle was exhibited in these proceedings, and I have had a chance to consider it closely and compare it with the 1992 DC01 wand handle.  I am quite satisfied that the differences between the two are visually significant.  So even if that were a qualification for originality in this case, the 1992 handle design possesses it. 
78.	There was originally a suggestion that parts of the 1992 handle were derived from other predecessor machines (principally the Iona Fantom).  However, that source of derivation did not really figure by the time of final speeches.   So far as there was derivation, it was derivation only and the attack on originality fails for the same reasons as it fails in relation to originality over the Cyclon handle.
1992 DC01 wand handle – must match
79.	Qualtex’s first case was that this handle overall made an important contribution to the overall shape and appearance of the DC01 and was therefore in the same position as the car body panels in the Ford case.  I was invited to come to this conclusion by simply finding it obvious on looking at the machine, and from the evidence of some of the Dyson designers who are said to have admitted that the handle was a key part of the design of the machine.  There was no evidence that anyone had ever marketed a non-replica spare handle, and it was said to be highly improbable that there would be any market for such a wand handle even at a reduced price.  For its part, Dyson maintained that there was considerable design freedom in relation to this handle – design freedom extended to practically every part of the handle, as was demonstrated in part by the fact that later handles on later machines had, for example, different rib spacing and profiles.  Mr Jupp produced drawings which he said demonstrated the different sort of approaches a designer might take to some of those aspects and which would not copy Dyson’s designs.
80.	To my mind and eye the must-match provision does not apply to this part.  Changing one or more or all of the design features of this handle would not necessarily make the whole machine (including the handle) look “radically different” within the guidance that appears from the cases.  I do not think that this part is like the door panels in Ford.  It is of course true that one could make the handle so different that the overall appearance of the machine would be radically different, but that is not necessarily the case.  One could alter the detail of the bulge at the top, or not have a bulge at all, or have different ribbing details lower down the handle, or have different (or no) grooves on the underside where the hand naturally rests, without radically changing the overall appearance of the overall machine within the meaning of that phrase.  But it does not follow that any change would make the handle radically different.  So far as one can make a cross-check by inquiring what sort of a market there is or would be for a non-replica handle, while it is true that there was no evidence of any such market, there is no evidence that there would not be one.  In the absence of solid and reasoned evidence (which in the circumstances would have had to have been opinion evidence) I do not think it is possible to say that no-one would buy a non-replica handle, and I would be a little sceptical of assertions to that effect.  It is conceivable they might, if there were a price differential which made it worthwhile.   As I have said, I do not think the handle is like a car body part.  Cars have a certain public display element to them.  They are seen in public, and customer choice is likely to be affected, at least in part, by the design and the customer’s willingness to be associated with the design by driving in it or having it parked in his driveway.  The same cannot be said of vacuum cleaners.  A Dyson vacuum cleaner may well be purchased at least in part because of its design, but I would require some evidence were it to be said that the design preference of the customer for this piece of household utilitarianism would lead the customer to require it to keep its looks after a repair in the same way as a car is required to keep its looks.  This is, I accept, somewhat speculative in the absence of solid evidence, but it is plausible and I certainly cannot find that that is wrong and Qualtex has not discharged its burden of showing it is right.
81.	Qualtex’s secondary case on must match takes certain specific features and alleges that they fall within the exemption.  They are as follows:
i)	The ribbing in the bulge at the top of the handle and the ribbing lower down on the front and back of the handle.  
a)	In his report Mr Hulme said that these areas of ribbing match the ribbing on the handle release catch and an area of the machine under the cyclone.  One of Dyson’s witnesses (Mr Jones) agreed that there was a visual link with the latter, and Mr Jupp agreed that the ribs matched with the former, though he added they did not have to.   In some senses it can be seen there is a match.  The thickness, spacing and profile of the ribs on the lower part of the handle are the same as on the handle release catch.  But that is not the point.  This sort of approach demonstrates that dangers of using words that are not in the section.  The section does not refer to a “match”.  It refers to a dependency, of which a match may be a part but not the whole.  In my view the dependency is not made out.  If you are going to have ribs on the front of the handle above the release catch, then harmonious design might mean that those ribs would have the same pitch, spacing and profile as those on the handle, but the presence of ribs on the catch does not dictate a design requirement of ribs on the front of the handle above it so as to make the design of that area dependent on the catch.  Furthermore, the design dependency required by the section does not require the ribs to be continued round the back to any extent.  I do not consider that these lower ribs on the handle fall within the must match provision on that line of reasoning.  A “match” with ribbing anywhere else on the machine does not suffice either, but for the record I should say that I do not think that there is a visual match with other ribs anyway, save insofar as they are both ribs.   So far as the existence of a visual link is concerned, again the concept by itself is not particularly helpful.  The existence of a visual link may be an element of the design dependency required by the section, but it is not sufficient, and it takes the debate no further to say that there is one.  As Laddie J said in Ultraframe at para 79:

“In my view the fact that [certain features] help in achieving a “consistent theme”, as Mr Wyand puts it, does not mean that these particular features are “dependent upon the appearance of another article” as required by s.213(3)(b)(ii).”

b)	Turning to the ribbing in the bulge at the top of the handle, other than to identify it as ribbing, there is, in my view, little in common with ribbing elsewhere.  Again, the dependency required by the section has not been made out, and merely to identify a match (which on the facts is misplaced) does not take one very far.  I find that this ribbing is not excluded by must match.
ii)	Although not identified in the Defence as a must match element, the grooving in the back of the handle was also relied on by Mr Hulme as falling within the must match exception.  He coloured up the recessed parts to identify them as much match features in a drawing annexed to his report, but in cross-examination relied on the wider raised parts as being ribs for these purposes.  I find that there is no question of this aspect of the design falling within the provisions of the section – there is absolutely no dependency at all (and, at the risk of falling into the trap of using the wrong test, I would also observe that there is no match either).  I think that Mr Hulme’s reliance on this feature is a demonstration of his lack of objectivity when approaching his task as expert.
iii)	The next aspect of must match relied on in relation to this handle is what is described as a half lozenge (curved) shape at the back of the lower part of the handle.  Mr Hulme said that this was designed to match the equivalent shape on the front of the machine so as to form a complete lozenge shape if viewed from above and in cross-section.  Mr Jones accepted that there could be said to be a match, and Mr Jupp agreed there was a “congruity” but denied suggestions that there was a match.  It seems to me that Mr Hulme’s evidence, and the cross-examination of the two Dyson witnesses just referred to, misses the point.  The point is not whether there is a match.  The point is whether there is a dependence for the purposes of the statutory provision.  In my view there clearly is no such dependence.  There is no reason why that particular aspect of that particular part has to be the shape that it is because that shape is dependent on the appearance of the whole machine.  It would not radically change the appearance of the machine were this part of the handle to be another shape.
iv)	Last, Qualtex rely on the shape of the rotatable “hook” on the cable winder.  Mr Hulme says that this matches the round shape of the boss into which it fits.  That is true; but its shape is not dependent on any aspect of the design of the overall machine in the sense required by the section.  This point fails.

82.	I therefore conclude that design right in the DC01 wand handle is not excluded, either in whole or in part, by the must match provision of the 1988 Act.
1992 DC01 wand handle – must fit
83.	This has to be dealt with by reference to various areas of the part.  Agreed areas are dealt with in the schedule to this judgment.  I deal here with areas that are claimed by Qualtex but not agreed.
84.	The semi-circular or curved part of the handle which lies underneath the handle release catch.   Underneath the release catch there is a wall of the handle which has a curve parallel to the underside of the catch.  They do not touch, even when the catch is pressed – there is a small clearance.  As will be apparent later on, Mr Jupp accepted that the curved under-surface of the release catch which lies above and roughly parallel to this surface of the handle was a must fit feature of the catch.  However, he resisted the notion that logically this made the surface of the handle must fit as well.  He pointed out that the surface of the handle did not have to be that shape at all.  I do not think that it is necessarily relevant whether the underlying wall had to be that shape.  The fact is that it is that shape.  However, I think that there is a different reason why the catch is must fit and the handle is not.  Looking at the matter realistically I think that while it can be said that the catch is the shape it is to enable the catch to perform its function, I do not think that the evidence allows me to say that the handle is the way it is to enable the catch to perform its function.  Accordingly this aspect of the handle is not must fit.  The design history of the parts showed that the handle was designed first and the catch was designed later.  The handle had its first expression in a design drawing in February 1992 and the catch found its first expression in a drawing in April 1992.  While those are formal drawings which do not necessary reflect the precise form of the order of designs, in my view they are likely to do so, thus making the catch must fit but this part of the body of the handle not must fit.
85.	Qualtex put a second must fit case in relation to this aspect of the handle.  When the catch is at rest there is a space between the underside of the catch and the curved surface in question – they are approximately parallel when the catch is at rest.  It was said that the bottom part of this wall abuts the catch when a user holds the wand by the catch for above the surface cleaning, and that it does this so as to stop the catch flexing and “popping off” its pivot pins.  I do not consider that this qualifies.   Mr Jupp did not consider that this was a design consideration, but in any event did not accept that this was the effect of that bottom part of this surface. He described the suggestion of “popping off” as conjecture, and I agree with him that in the absence of experimentation (of which there was none) it was.  In those circumstances I do not consider that this is an aspect of the shape or configuration of the handle which falls within any aspect of the section; and the same is likely to be true even if the “popping off” theory were established – in that event there would only be a limited contact and the whole feature still does not fall within the section.  
86.	The clearance around the spring to stop it fouling.  This refers to the area of space  around the spring against which the catch moves; the area enables the compressed spring to expand into space and to deflect slightly to the side (it deflects slightly because the catch describes an arc rather than having an entirely straight line movement, because it is pivoted at one end).  It was claimed in Qualtex’s final speech but was not the subject of any pleaded claim.  Nor did Mr Hulme give any evidence in relation to this, and there was no cross-examination on it.  I therefore make no ruling on it.
87.	A small area between the stops which prevent outward movement of the handle release catch and the top face of the catch.  This requires explanation.   The catch is sprung so that, unless restrained, it would be pushed away from and off the handle.  It has to be restrained.  That restraint is provided by a short vertical protruberance at its top which, when the handle is at rest, presses against a matching short vertical downward protruberance at the bottom of the ribs of the handle.  When they meet the handle must stop moving.  There is a clearance between the latter protuberance and the top face of the catch.  This is the clearance referred to.  Like the clearance around the spring, it is not an aspect that formed part of Qualtex’s pleaded case, and it did not form part of Mr Hulme’s evidential case either, though it was referred to in the cross-examination of Mr Jupp.  In the absence of a pleaded or evidential case in respect of this clearance I am not minded to allow Qualtex to rely on the point, but in any event such evidence as Mr Jupp gave on it did not support the case relied on in final submissions and as a result I do not think it qualifies.  The cross-examination did not go so far as to establish that this clearance was a particular aspect of the design capable of falling within the section.   Accordingly I rule against Qualtex on this particular aspect.   However, I suspect that in any event this alleged point is not material since it is accepted by Mr Jupp and Dyson that the stop itself is within the must fit exemption, and to some extent the resulting clearance is an aspect of the stop itself.  
88.	The forward facing surfaces of the vertical ridges which interact with the vertical splines on the machines, which must be clear of the handle release catch.  The body of the machines contain a vertical spline.  When the handle is slotted into the body this spline locates itself into a groove formed by the curved back of the handle as it comes round to the front and by a vertical feature (called a ridge in cross-examination of Mr Jupp – it is like a single raised rib standing proud of the surface of the handle).    The rearward facing face of this ridge forms one side of the groove.  The forward facing surface does not engage with anything.  Qualtex say that this surface falls within the must fit provision because it has to be a sufficient distance from the handle release catch to enable the catch to travel the required distance when depressed.  This is said to mean that this surface is a feature or aspect which enables the catch to perform its function.  I do not consider this submission to be correct because I do not consider this to be the correct analysis.  The surface itself is where it is and what it is.  It is merely the reverse side of the ridge whose function is to form a side of the groove.  It is true that if it were somewhere else (farther towards the catch) it would foul the catch, but this does not mean that the surface is a feature which enables the catch to function, or which enables the ridge to form the groove. 
89.	Flat forward-facing surfaces above and behind the locating ridges at the lower end of the handle.   The argument of Qualtex on this is the same as in the preceding paragraph – these surfaces must be clear of the release catch when depressed.  I reject this argument for the same reason, though the position is even clearer in relation to this “aspect” of the design.  This surface is the finishing point of the rear curved section of the handle.  It is true that if it came too far forward it would foul the release catch when the latter were depressed, but that does not make this surface a feature which enables the handle to be connected to or placed around or against the catch so that the catch may perform its function.  It is simply the way the designer chose to finish the curved surface.  It cannot sensibly be treated as an aspect of the design which enables either part to perform its function.  
90.	Next are features which enable the handle to fit into the machine.  The contested elements are as follows.
91.	The vertical grooves which receive vertical splines on the machine.  I have referred to these already.  Dyson does not dispute that part of this groove is within the exception but points out that the defined groove is longer than it needs to be by a couple of centimetres or so.  This length is visible on the handle when it is engaged.   Where one has such a feature I think that one has to apply the Act realistically and pragmatically.  If the groove were, say, 2 mm longer than the spline then it would in reality still be the same groove and be within the must fit exception.  At some point one can no longer say that – where that point is is a matter of fact and degree.  I think that on the facts of this case the upper part of the groove is still part of the same groove and within the exception.  Qualtex succeeds on this point.
92.	The flat bottom of the handle which is said to sit on a horizontal surface at the bottom of the socket on the machine which receives the handle. It is curved to match the curve of the handle (actually the catch, at this point).  At the front of the handle there is a curved section which is covered by the handle release catch.  That runs down to the bottom of the handle.  When the handle is placed in the receiving socket on the machine something has to stop its descent.  This is achieved by having a horizontal surface (a sort of shelf) on the machine which provides the stop – there is actually a raised nub on it.  At the frontmost part of the curve of the handle (underneath the catch) there is a raised nub -  it is about 4 mm square and about  1 mm in height.  When the handle is placed in the socket that nub contacts a nub on the shelf and together they stop the descent of the handle.  The combination of those features means that the bottom of the handle’s curved section does not actually sit on the shelf.  It is the two nubs which engage.  Nevertheless Mr Arnold says that I should adopt a “practical approach” and say that the whole of the bottom of the handle falls within the must fit exception, and not merely the nub.  The nub is clearly a feature which enables the handle to be placed in the machine so that both can perform their respective functions.  It is obviously a deliberately placed item – it is apparent that there is intended to be no touching between the shelf and the bottom part of the handle other than at the point of the two nubs.  I do not think it is possible to say that any other part of the bottom surface enables the handle to be connected to or placed in, around or against the body of the machine so that the handle (or the machine) can perform its function.  The appeal to the “practical approach” is an appeal to ignore the words of the section and the design realities of the part.  The section, and the approach of the parties in this case, has required a breakdown of parts into their various aspects, and one cannot move from one aspect which complies to another which does not merely on the grounds of practicality.  The point was not put to me on the footing that the curved section of the handle above the nub was somehow the male part of a male/female joint, and on the facts I very much doubt if that could be done.  Short of such an argument, I cannot find that the bottom face of the curved section (which is the part relied on by Qualtex) falls within the must fit exception.
93.	The interior of the tubular boss which receives the cable winder.   Although not clearly accepted on the pleadings, Mr Jupp accepted in evidence that the inner surface of this boss, and the internal pocket into which the winder legs clicked, were within this exception and I so find.
94.	The upper half of the tubular boss and the immediately vertically adjacent profile of the ribbing.  These are said to be must fit because the cable is wound round the boss and is restrained from slipping inwards by the adjacent face of the ribbing.  It is therefore said that these are features of the main wand handle which are placed against the cable enabling the boss to perform its function (of receiving the cable when wound round it).   There was no material dispute about the surface of the boss, though Mr Jupp did observe that the exact parts of the boss surface which interfaced with the cable was debatable and not necessarily the full semi-circle claimed by Mr Hulme.  However, I accept Mr Hulme’s evidence and find that the top half of this boss is within this exception.  Although there was little debate about it, I find the same about the vertical surface of the ribbing immediately adjacent to (and above) this boss.  It is this which restrains lateral movement of the cable; it performs the same function on that side as the tab (to which I will come in due course) performs on the other, and is within this exception.
95.	Features in the bulge at the upper end
a)	The outer wall of the bulged section.  A tool fitted into this end fits over the inner wall.  It is not disputed that this wall (apart from the semi-circular cut-outs in it which are a matter of dispute) falls within the section since it clearly exists to enable the tool and the handle to be connected.   However, the inner surface of the outer wall is disputed.  Qualtex says it is within the exception; Dyson says it is not because it does not enable a connection.  Qualtex’s case on this is that it provides a second, looser fit round the tools.  I do not consider this qualifies for the exception.  It was demonstrated with Mr Jones that with at least one tool and one handle there was some form of interference between the handle and the tool – hence the expression “loose fit”.  However, Mr Jones says that was not the design intention.  If it had been intended to have a fit then it would have been a taper fit (as the fit between the inner tube and the tool is).  I accept his evidence.  Mr Jupp pointed out that to his eyes there was a significant clearance between the inner surface of the bulge and the tube of the interfacing tool placed over the inner tube.  I accept this evidence too.  This evidence, and what is apparent from looking at the handle, means that this outer wall is not a feature which enables a connection; nor does it enable the tool to be placed in the top of the handle or around the inner wall (either of those could be achieved without the outer wall being there at all).

b)	In its final speech Qualtex contended that the bleed holes in the outer wall and the semi-circular cut-outs in the inner wall fell within the exception because both of them enabled the handle to be placed against an object without stopping the airflow and burning out the motor.   However, Mr Hulme did not say that these aspects fell within this exception so technically this point is probably not open to Qualtex.  However, if it were I would rule against it.  The function just described does not fall within the wording of the section.  The relevant words of the section would apply must fit to features which “enable [the handle] to be placed against [another solid object] so that [the handle] may perform its function” (no other interpolation of words makes sense).  That is not the purpose of the cut-outs and bleed-holes.  They are there so that in the event that the handle is placed against another object (which it should not be, and which it is not designed for) then a third object (the motor) is not affected.  One cannot read that cause and effect into the section.  If the (gory) safety aspect is considered for these purposes, a moment’s consideration will demonstrate how “handle” and “eye” cannot be interpolated in any way that makes sense either.  Accordingly I rule against Qualtex on this point.
1992 DC01 wand handle - surface decoration
96.	Qualtex relies on three areas of ribbing (or grooves) as being surface decoration – the main area of ribbing apparent on the front of the handle (and extending in part round the rear), the ribbing on the bulge, and the ribbing (or more aptly grooves) on the handle at the top.  In his report Mr Hulme relies on the fact that (as he sees it) Dyson uses ribbing to give their machines a futuristic or aeronautical look, and he quotes part of the autobiography of Mr James Dyson in support of that.  This seems to be his only piece of reasoning in his report for saying that the ribbing is surface decoration.  As such it is not adequate – if and insofar as it is the case that Dyson’s ribbing is used for that purpose (as to which I make no finding) it still does not determine the question of whether any particular ribs are surface decoration or not, within the meaning of the section.  It does not follow that all, or indeed any particular area of, ribbing is surface decoration.  In order to determine that it is necessary to take each area separately and consider the design function of the ribbing, and to apply the principles which I have extracted above in relation to surface decoration. 
97.	The lower ribbing area.  The first area of the ribbing is the pronounced and obvious area starting just above the cable winder boss and running down to the handle release catch.  The evidence of Mr Jupp was that this was there to hide the change in diameter of the two main parts of the wand handle that occurs in that general area.  Mr Jones, the designer, said that their purpose was to create something of an optical illusion – to make the handle appear more substantial there than it in fact was.  There is a slanted rib running at right angles to the horizontal ribs at the front of the handle and parallel to their top surface.  This rib was, according to Mr Jones, to give the impression of a stronger handle.  Mr Arnold submitted that all these features demonstrated that the ribbing was surface decoration (though the vertical rib was not pleaded, nor did it appear in Mr Hulme’s evidence).  I disagree.  I think they demonstrate precisely the opposite.  The ribbing is carefully designed to convey a shape, defined by that ribbing; it does not merely decorate a surface which is already there.  It goes far beyond that.  Even Mr Hulme accepted that without the ribbing the shape of the handle would be completely different.  I find that this ribbing is not surface decoration.  Mr Jupp suggested in his expert’s report that in addition the ribs provided an extra gripping area when tools were being attached or removed from the end socket.  I doubt if that is the case – it is not a natural place to hold the handle when performing that activity.   In his final speech Mr Carr did not rely on this alleged functional feature of these ribs.  In the circumstances no additional functionality point arises in this context.  
98.	The ribbing on the bulge at the end. Mr Jones, who designed it, told me that the ribbing was to assist grip.  There were two situations in which this might be necessary or desirable – first when manoeuvring the machine around the floor in some circumstances (using it as the ball to the hand’s socket), and second when removing a tool.   Mr Jupp agreed the ribs promoted grip, and also said that the ribs made manufacture easier (by reducing the possibility of sinking or distortion).  He pointed out that they provided a pathway for the bleed holes in the grooves between the ribs.  Mr Hulme, in his report, merely asserted that these ribs were surface decoration.  In cross-examination he disputed the grip point, did not dispute (but did not accept) the manufacturing point and accepted the shape would be different without the ribs.   He agreed that they provided a pathway for the bleed holes.   Taking into account this evidence, and my own impressions, I find that these ribs are not surface decoration.   They fulfil practical functions (grip and the airway passage) and define the shape of the bulge, and those functions are in no way subsidiary to some other function.  They are not decorating a bulge that is already there as part of the design.  
99.	The grooves on the lower general gripping part.  The handle is obviously designed so that most of the time the usual way of gripping the handle is by the tubular section below the bulge (without in any way derogating from my finding that on occasions the bulge will be used).   At the back of this section there are 10 grooves, decreasing in depth on each side as they move towards the front.  Qualtex says these are both decorative and functional, and that this makes them surface decoration.  The evidence of Mr Jones was to the effect that these grooves were to facilitate gripping.  In order to give them a more pleasing effect he tapered them off, but that did not detract from their function of facilitating gripping.  Mr Hulme stated that he did not accept that they facilitated gripping to any significant extent, and thought that they were decorative.  Part of his reasoning was that Dyson dropped the groove on later models.  That is true in a sense – the DC04 and DC07 do not have these grooves, but they have a very different handle configuration.  
100.	I have no difficulty in finding, as I do, that the designer intended these grooves to provide grip, though he obviously intended to do so in an aesthetically pleasing manner – hence the tapering or chamfering.  I also find that they do provide some additional grip in fact.  It may be that it is the case that they also advertise to the user that this is where the handle is to be held (though the user would doubtless come to the same conclusion in their absence) but that is subsidiary.  In the light of those findings I find that these grooves are functional.   They are therefore not surface decoration.  Even if they had a decorative aspect I would find that this aspect is very much subsidiary to their functional aspect, so that they are still not surface decoration, in line with the principles I have extracted above.
DC01 1992 wand handle – commonplace
101.	Mr Arnold submits that when one excludes all that has to be excluded on the other bases, what is left is an angled handle with a grooved gripping portion, which is commonplace.  In fact, in the light of my findings this point does not really arise.  Mr Hulme’s evidence was that if you removed all of the things that he said should be removed from the equation, what one was left with was a pretty straightforward bent handle.  However, he conceded that if you left the ribbing on it (in the sense of not removing it from consideration under one of the other exceptions) it would not be commonplace.  Since my finding is that ribbing should be left on it that destroys this aspect of the commonplace argument.  
102.	However, Mr Hulme also applied a commonplace test to various of the elements of the handle – grooves, bulges and so on.   In doing so he produced evidence of various examples of those features found on historical machines, designs and patents, and used them as evidence that the particular aspect was itself commonplace.  In the main he has gone about an exercise which does not help.   To take an example, in relation to the bulge on the wand handle, he has produced examples of bulges in a photograph of a very old vacuum cleaner which bears no resemblance to a Dyson machine at all, the bulge apparently being on a manual pumping handle (so far as I can tell).  Then he produces a line drawing, taken from a US patent, of a vacuum cleaner hose with some sort of bulge in the middle of it (like the bulge one would see part way down a cartoon boa constrictor a short while after a recent moderate meal); and then he produces a diagram for the old Dyson-designed Iona Fantom cleaner which shows a bulge at the end of a wand handle.  That material shows bulges.  It does not show them to be commonplace in vacuum cleaner design.  The first two examples were documents taken from the internet.  There was no evidence as to how widespread the use of  the relevant machines was, or even whether they were ever in use at all, so even assuming the bulges could be related to the bulge at the end of the DC01 wand handle there was no material linking them to designer-awareness so as to assist in establishing commonplace in relation to the bulge.  Mr Hulme frequently did this.  He confused evidence that someone had once thought of a design concept in one context with the evidence of general designer-awareness (whether through marketing or otherwise) on the other.  Only the latter could be relevant.  Mr Hulme and Qualtex have failed to establish it in relation to any of the aspects of the DC01 wand handle which were said to have been commonplace.  Thus:
i)	Wand handles were said to have been used for tens of years, and Mr Hulme relied on the old machine referred to in the preceding paragraph.  But that wand handle was very different from Dyson’s, and in any event proving the concept of a wand handle was frequently used does not get Qualtex anywhere.
ii)	It was asserted that grooves on a gripping handle were commonly used before the Cyclon, and were used on the Cyclon.  A line drawing of a Hoover Junior 1334 machine, said to have been very common in the UK, Australia and (in an early version) the USA, was produced, apparently showing an area of grooving on the handle.  The grooves, so far as discernible, are much closer together than the DC01’s and the handle is different so they are not in a clearly analogous position.  Mr Hulme said they were decorative only; they did not enhance the grip.  This is not sufficient evidence to show that grooves like those on the gripping part of the DC01 wand handle were commonplace in the sense of the statute.  The Hoover grooves were clearly different, and the presence of the grooves on another Dyson machine does not make them commonplace or add any evidence demonstrating that they were.  Mr Hulme also asserted that there were grooves on other models,  but his evidence on this was not sufficient to demonstrate commonplace.
iii)	I have already referred to Mr Hulme’s evidence of bulges.  He did not assist his case when he said in his report: “Although bulges on handles were not very widespread …”.  He has produced no evidence which would go anywhere near supporting an assertion that bulges like that on the wand handle were commonplace.  All he has produced is evidence of different bulges on different parts of different machines which may or may not have had some commercial success.
iv)	He said that ribbing had long been used to adorn generally standard vacuum cleaners and he produced pictures of an Electrolux stair tool which showed a small amount of ribbing on top.  That, however, is insufficient.  Showing that ribbing was commonplace on vacuum cleaners does not show that the aspects of the Dyson design which featured ribbing were commonplace.  The ribbing on the DC01 wand handle cannot for these purposes be properly described as “ribbing on a vacuum cleaner”.  It is particular ribbing with particular dimensions and particular aspects.  That is the design (or designs) over which design right is claimed.  Ribbing like that is not (on the evidence) commonplace.  That conclusion is not particularly surprising.
103.	Accordingly I find against Qualtex on all questions of commonplace in relation to the DC01 wand handle.
1992 DC01 wand handle – method or principle of construction
104.	In his report Mr Hulme relied on the cut-outs in the inner wall of the upper bulge, and the holes in the bulge which admitted air, as being a method or principle of construction within section 213(3).  This point was not made in Qualtex’s final submissions, but I deal with it anyway.  The idea of having a hole to prevent total obstruction to airflow head to cause airflow may fall within this exception, but that is not the basis of Dyson’s claim.  They claim design right in particular holes, shaped in a particular way, in a particular product.  There is no scope for arguing that the exception applies to that. They are seeking to protect particular holes, not the idea of holes.  The exception does not apply.
1992 DC01 wand handle - generally
105.	There is no other attack on the existence of design right in the 1992 wand handle other than those I have dealt with above.   All other qualifications necessary to give rise to that right have been fulfilled, so I find that design right exists in this wand handle save for those aspects which are agreed as excluded or which I have found to be excluded.
Infringement
106.	It therefore follows that I find that Qualtex has infringed the unregistered design right of the claimant in copying those parts of the DC01 wand handle that are not accepted by Dyson as falling within one of the exceptions debated above.
DC01 wand handle release catch
107.	This article appears in the photograph of the handle.  I have described its function above.
DC01 wand handle release catch - must fit
108.	Again there is common ground, which I record in a schedule at the end of this judgment.  I shall deal here with the points of disagreement.
109.	The surface at the top across which the stop on the handle moves.  This is an area which was not pleaded and which is said not to have formed part of the evidence of Mr Hulme.   This is largely true.  While Mr Hulme’s drawings seem to colour this surface as must fit his report does not refer to it and there was no cross-examination on the point.  I therefore decline formally to rule on it.  However, I would add that my impression is that it would not qualify as a must fit item.  This surface does not enable the catch to be placed in, around or against the remainder of the handle.  The point made by Mr Arnold in his final submissions is in effect that it must not foul the stop.  However, this surface does not “enable” non-fouling.  It is simply out of the way and no more enables the catch and handle to operate properly together than any other part of the handle or catch (or indeed any other more remote part of the machine).  It would be a misuse of the language of the section to say that this surface fell within it.
110.	The edges of the curved section at the bottom.  Mr Jupp accepted that both inner and outer faces of the curved bottom of this catch were excluded, but not the shape of the narrow edges.  I think that this an artificial distinction.  If the two surfaces are excluded, then the edge is in essence a function of the thickness of the plastic.  If the main surfaces are must fit, then in reality the edges must be as well.  I find against Dyson on this. 
111.	The curved edges of the portion of the catch around the pivot holes.  These are the surfaces which define the edge of the catch in the area of the pivot holes.  They are said to be the shape they are in order to clear two things.  The first is the splines on the body of the machine which engage with the groove higher up the handle, as observed above.  The splines pass immediately by those edges before they engage in the groove formed by a plastic ridge on one side and the edge of the curved back of the handle on the other.   In practice they form, or almost form, the beginning of one side of the groove.  The shape of this part of the catch has to be clear of the splines in its position at rest and when rotated slightly by the depression of the catch.  The second feature is the bottom edge of the ridge itself – it has a curved shape which matches the curved shape of this part of the catch, though they do not quite engage.
112.	Mr Jones accepted that this piece of local detail was dictated by the splines on the body of the machine, and also by the need to clear the ridge.  Mr Hulme pointed out that these edges needed to be clear of the splines when depressed, but did not otherwise describe any need to interface.  Mr Jupp was cross-examined more on clearances than on enablement within must fit.  
113.	On this point I find in favour of Qualtex.  The plastic around the pivot hole obviously has to have more than an ephemeral width.  The shape of the plastic at this point is dicated by the need to allow passage of the spline and rotation of the catch; and it has at some point to fit in with the vertical ridge.  These findings mean that this aspect of the design of the catch enables it to be connected to or placed against the wand handle in such a manner as to allow it to perform its function (to rotate around the pivot pins when pressed) and to allow the handle to perform its function of fitting into the body of the machine.   It also allows the splines on the body of the machine to pass immediately by it and engage in the groove on the wand handle, thus enabling these splines to perform their function.  I therefore find that this aspect is caught by the must fit exception.
114.	The flat bottom of the catch that fits into the horizontal surface of the machine body immediately beneath it.  This is the same point as arises in relation to the bottom surface of the curved section of the wand handle, which I have dealt with above.  I have described above how the handle is stopped by a nub that meets a corresponding nub on the “shelf” in the body of the machine.  The catch surface is essentially parallel to the curve on the handle, and does not extend below it.  It follows that this bottom surface does not engage with the “shelf” at all – it is deliberately kept clear of it.  Accordingly, it follows that if one looks at this surface as a separate aspect for these purposes it does not qualify as a must fit aspect for the same reasons as the corresponding surface on the wand handle.   However, it seems to me (although it was not argued this way) that must fit can be put another way in relation to this surface.  It is accepted by Dyson that the whole of the lower part of the release catch (both inner and outer surfaces) are within the exception, the former because it fits into the matching aperture on the body of the machine and the latter because it is positioned around the main wand handle when the handle is depressed.  The bottom surface is in effect an inevitable part that links the front and back surface.  It is not sensible to treat it as a separate aspect for these purposes.  If the front surface is within the exception, then its natural termination must be (the termination must have some recognisable thickness); and the same applies to the rear surface.   The end surface is the natural termination of both.  Accordingly, it falls within the must fit exception as much as both surfaces do.
DC01 wand handle release catch - must match specific features
115.	Qualtex seeks to say that the area of ribbing on the catch is caught by the must match exception.  Mr Hulme’s reasons for this are that the ribbing matches the ribbing found on the wand handle and on other parts of the DC01 and/or its accessories, and it is intended to form an integral part of the wand handle.  He relies on “matches” between the wand handle and the catch.  
116.	It is true that there are matches.  The profile, pitch, spacing and angle of the ribs is the same.  In its “at rest” position the handle stands proud of the line of the top edge of the wand handle ribs, but when it is depressed the catch ribs come almost into line with the handle’s – if one presses hard they go beyond alignment to a slight non-alignment again.  If matching were a test, the catch would fulfil it.  However, it is not the test, as I have pointed out above in relation to similar arguments in relation to the handle.  Everything I have said there can be applied to this ribbing.  I do not think that replacing this catch with a catch of another design would inevitably make the handle (or machine) look radically different.  I therefore reject Qualtex’s argument and case on this ribbing.
DC01 wand handle release catch - surface decoration
117.	Qualtex maintained that the ribbing on the catch was surface decoration.   I reject this argument for the same reasons that I rejected it in relation to the main ribbing on the handle.  These ribs are part of the shape of the piece; they are not mere surface decoration.  They decorate no surface.  Qualtex’s submissions in this respect relied on evidence that the designers had intended to create certain effects by profiling the ribs and the underlying surface as they did, but that does not make the ribs surface decoration.  It makes them part of the overall design.
DC01 wand handle release catch - originality
118.	Qualtex maintained that the ribbing on the catch was not original because its genesis was ribbing on the Cyclon wand handle.  It is true that this was admitted by Mr Jones.  However, it is not enough to make the ribbing non-original.  I have referred above to the relevant test for want of originality.  Copying in the photocopying or tracing sense (or analogy) is required; “genesis” (whatever that may mean precisely) is not enough.  There is no evidence it was copied, and evidence it was not.  I therefore hold that this ribbing is original for the purpose of unregistered design right.
DC01 wand handle release catch - commonplace
119.	Qualtex submitted that once one disregards excluded items, all other aspects were commonplace.   The remainder of the catch was commonplace.  I am not sure what this was intended to bite on.  Suffice it to say for these purposes that I cannot identify any feature which is capable of falling under this head, and no evidence was directed to the point.  I therefore find against Qualtex in relation to it.
DC01 wand handle release catch - infringement
120.	It follows that Qualtex have infringed Dyson’s unregistered design right in the catch in copying it.
 DC01 1992 Cable Winder
121.	The winder can be seen on the photograph of the handle.  It is seen as a vertical tab extending at right angles from a tubular boss on the back of the handle.   The cable winder itself comprises two elements.  First there is an arrangement of sprung plastic legs mounted on a short cylindrical length which fits into the circular boss on the wand handle.  Those legs have “backward” facing surfaces on their ends which they engage in a pocket on the boss to hold the winder in place.  The fit enables the outer part to turn.  The outer (visible) part is a straight-sided and round-ended feature which, when vertical, forms the third side of a cable winding feature.  The machine’s power cable, when not in use, is wound round the boss and is prevented from slipping off by the vertical winder.  When it is desired to take the cable off the winder is turned down through 180° so that it can be pulled off.
122.	No design right is claimed in this piece of the overall handle as a separate item.  This is probably because the pleading (if not Mr Jupp’s evidence) was that it was copied from the Iona Fantom cleaner.  However, in the light of the claim to originality in the whole handle including the cable winder it is necessary for me to consider other attacks on design right based on must fit and must match.
DC01 1992 cable winder - must fit
123.	The internal legs are conceded as falling with the must fit exception.  I need say no more about them.
124.	Qualtex claimed that the rear surface of the cable winder, which held the cable in place, fell within the must fit exception.  I find that this part does indeed fall within the must fit exception.  It enables it to be placed against another article (the cable) so that it can perform its function.  
125.	The semi-circular shape at that part which abuts the boss also falls within the must fit exception.  When the winder is rotated downwards, to permit the cable to slide off, this shape lines up with the shape of the upper half of the boss.  If it protruded beyond the surface of the boss it would snag the cable and the cable would not be able to slide off so cleanly.  I find that this feature of its shape enables the winder to perform its function of releasing the cable when required to do so.
126.	Beyond that there are no features to which the must fit exception applies.  Qualtex sought to argue that the sides of the winder fell within the exception because if they were wider they would foul the cable when it was slipped off.  Mr Jupp conceded that this was a possibility if it were “much, much fatter”, but I do not consider that that means that this particular design of the winder falls within the exception.  The fact that, if designed differently, it would not work is not sufficient.  The shape is not one which “enables” the winder to perform its function.   The most can be said is that it does not obstruct it, and that is not enough, in my view.
DC01 1992 cable winder - must match
127.	Qualtex asserted that the semi-circular ends of the winder fell within this exception because it formed a visual link, or created a visual echo, with the circular profile on another part of the machine, namely the tab on the Lower Hose Cuff around which the bottom of the cable was wound (see below as to this part).   It is true that, as a matter of fact, the lower tab does have a curved shape (pointing downwards).  It does not have parallel sides – they are wider at the top than at the bottom.  The most that can be said is that there is a visual echo, meaning a similarity of shape, but that is nothing like enough to establish the notion of dependency which underlies the must match exception, and I have already cited Laddie J in Ultraframe on this point.  I reject Qualtex’s case on this point.
DC01 1992 cable winder - commonplace
128.	Qualtex said that the design of this winder was commonplace.  If this applied it would apply to the winder as a whole.  Since it is accepted that this winder was not original, and since commonplace goes to originality (so as to destroy it – see section 213(4)) I do not strictly have to deal with it. However, a similar point arises or may arise in relation to a later cable winder and it will be useful to deal with the point here.  Mr Hulme produced various drawings of cable winders of various shapes and sizes.  They demonstrated that the idea of a cable winder (that is to say, a curved feature around which a cable was stored) was common, and I think (if it were relevant) I could conclude that that idea was commonplace.  However, he produced no material which could lead to the conclusion that this design for a winder was commonplace.  All his examples showed winders of different shapes and of uncertain prevalence in the marketplace. 
DC01 wand handle - the whole handle (including the catch and cable winder)
129.	So far I have dealt with the three consituent parts of the handle.  In addition to claiming design right in the separate parts, Dyson claim design right in the whole assembly, minus those parts which it concedes fall within the must fit exception.  Qualtex says that since the Cable Winder was copied from the Iona Fantom then design right cannot exist in the article which is a combination of all three features.
130.	I reject this submission of Qualtex.  The fact that the cable winder was copied from the Fantom means that that article is not original for the purposes of design right.  I do not think that that deprives the combination of originality.  In Ultraframe counsel for the defendant is recorded (at para 71) as not disputing that a combination of features that are commonplace could still be the subject of design right, and Laddie J did not question that concession.  I would respectfully agree.  Commonplace goes to originality – see section 213(4) – and in my view the same goes for items which are not original because they are copied; that is to say, design right can exist in a combination of features some of which (or even all of which) are copies when taken separately.  Reverting to the present case, therefore, the fact that the cable winder is a copy does not prevent design right from arising in the whole of the handle assembly of which it forms part, provided the overall design is original (which, in my view, it is).  
131.	However, in considering the extent to which design right exists in the whole assembly, those parts which fall within the must fit and must match exceptions have still to be excluded.  This was conceded by Dyson (who, on the true construction of their pleadings, did not claim rights in anything more than the combination minus must fit features), and it is clearly the approach of section 213(3)(b) which clearly applies to “features of shape or configuration of [the] article”, the “article” for these purposes being the overall handle.   It was also the approach adopted in the pleadings without criticism in Farmer’s Build (see p 469).   
132.	I find, therefore, that design right is capable of existing in the whole handle assembly save for those features which are conceded as being, or which I have found as being, within the must fit exception (there being none which fall within the must match exception).  In the light of my other findings I find that right to exist.
DC01  wand handle - infringement
133.	My findings in this respect follow from my findings on infringment above.   Since Qualtex copied the 1997 handle, and since that handle contains most of the elements of the 1992 handle which were copied from it, then it follows that to that extent there has been infringement of the design rights in the 1992 handle.  
DC01 1995 Wand Handle design
134.	In 1995 the wand handle was redesigned.  In order to accommodate a larger upper hose cuff and greater hose length the cavity into which the hose fitted was extended and the position of the boss for the cable winder was changed.  The ribbing detail at the back of the handle was also changed – in effect it did not run so far down the back of the handle.  Other than that the design was unchanged over the 1992 version.  I can deal with this part relatively shortly.
135.	Dyson’s position in relation to this handle is as follows.  Much of the handle design is the same as the 1992 version.  So far as that is the case, Dyson does not claim a new design right arising in 1995.  It relies on its design right arising in 1992.  However, so far as the design has changed, then it relies on new design right in the changed parts (so far as not excluded by any of the provisions of the Act).  The extent to which design right exists in relation to the 1992 aspects has already been dealt with by me in considering the 1992 handle.  That means that only the new internal arrangement, the different ribbing and the changed position of the cable winder boss have to be considered.  In relation to those aspects the following is the position:
i)	The changed internal arrangements were specifically made to accommodate an alternative arrangement for the hose.  It is all, in my view, covered by must fit; and I did not understand Dyson to contend to the contrary.  The same applies to the internal aspects of the newly positioned cable winder boss.
ii)	So far as must match is concerned, although the ribbing detail is different, the legal argument, and the legal result, is the same as in relation to the ribbing on the 1992 handle.  It is not excluded on the footing of must match for the same reasons.  
iii)	Where ribbing has been removed on the 1995 version, the “lozenge” shape of the back of the machine has replaced it.  This, said Qualtex, makes this aspect of the handle non-original.  I reject that submission.  It was not copied in the “tracing” sense, and so is original.
136.	Qualtex ran a new argument on commonplace.  It said that by 1995 the DC01 handle had become one with which any vacuum-cleaner designer would be familiar.  The 1995 variations were trite.  Accordingly, it was said, all external aspects of the 1995 handle were commonplace.  This argument is false because it confuses familiarity with a design without more with commonplace.  It may well be that designers were familiar with the handle by 1995.  However, that does not make it commonplace.  As a design it still appeared only on Dyson vacuum cleaners and it was not, and had not become, hackneyed, run of the mill or any of the other attempted synonyms for “commonplace”.  The 1992 handle had been on the market for 2 to 3 years by this time, and it is common ground that it was a striking design.  To move from striking to commonplace, merely by virtue of the familiarity of designers with the striking design and it success in the marketplace, would have been quite remarkable.   It would introduce yet another paradox – a very good design which, by reason of its great design merit, becomes very well known, would lose design right because it has become commonplace.  Such a line of reasoning would run completely counter to the intention of creating design right.  I find that there is no question of this having happened.  I note that in Farmers Build at page 481 Mummery LJ expressed serious misgivings about a suggestion in a text book that the Eiffel Tower had become a commonplace design.  I think that I can safely conclude that the learned Lord Justice would have had even more difficulty with the suggestion that Dyson had made its own design commonplace in the manner suggested by Qualtex.
The DC01 1997 Wand Handle design
137.	During early 1997 Mr Thomson and Mr Seaman modified the DC01 1995 wand handle in one area – they changed the cable winder and its fixing boss.  This modification took two forms.  First, they changed the fixing mechanism.  In place of the plastic sprung legs which clipped into place they substituted a recessed screw which screwed into the boss.  The boss was widened slightly.  The screw held not only the cable winder.  It also pressed on and held the aluminium tube which provided the airflow to the handle.  Second, they substituted a slightly wider tab on the cable winder.  
138.	Dyson claim design right in relation to the tab only.  Dyson and its expert Mr Jupp between them accept (and so far as necessary I find) that the exterior surface of the winder tube (which fits into the boss), the receiving part of the boss and the interior surface of the recess which receives the screw are all covered by the must fit exception.  That leaves the tab, which has to be covered separately.  Qualtex asserts that design right does not exist in the tab for a number of reasons, which will by now have become familiar.
139.	Originality.  This time there is no admission of copying of any form.  In fact, the widening of the tab was not mentioned by the designer, Mr Thomson, who gave evidence.  The point emerged in his cross-examination.   It was not put to him that he had merely copied the 1992/1995 tab, and he did not say that he had.  In the circumstances there is no direct evidence of copying in the relevant sense.  I am not prepared to draw an inference of copying.  Accordingly, this time the tab design is original for the purposes of unregistered design right.
140.	Must fit.  I have already recorded the concessions and findings in relation to the tube that fits into the boss.  In addition the same aspects in respect of which must fit was successfully claimed in relation to the 1992/1995 tab give rise to the same claim here – that is to say, the bottom radius which has to lie in line with the curve of the boss and the inner face of the tab.  No other feature qualifies.  In respect of this tab Qualtex claimed that the tab had to be wider to correspond to the extra width of the boss, which was itself widened to accommodate the screw.  This was surmise on the part of Mr Hulme – it was not put to Mr Thomson.  This chain of surmise led Qualtex to allege that the width of the tab had itself become caught by the must fit exception.  This takes the section too far.  It simply cannot be fitted in with its wording.  Accordingly, the must fit exception is confined to the tubular fitting, the new boss design, the lower curve of the tab and the inner face of the tab so far as it retains the cable.
141.	Must match. There is said to be a “closer match” to the tab on the Lower Hose Cuff because the tab is now wider.  Whether or not this is a fair statement it still does not bring the tab within the must match provision for the same reasons as its predecessor failed.  Qualtex also sought to rely on must match in relation to the extra width of the tab – it was said that the exception applied because it corresponded to the new boss design.  Again, this does not get within the section – the relevant dependency does not exist.   No part of the tab is excluded by must match.
142.	Commonplace.  In part the argument was a repetition of the argument that I have ruled fails in relation to the 1995 variant – the design was even more well-known in 1997 than in 1995.  This argument fails for the same reason – being well-known is not the same as having become commonplace, and I hold that it had not.  The screw attachment was also relied on as being commonplace.   Inside the fixing is a spring which forces two indentations in the tube to co-operate with two ribs in the boss so as to encourage the winder to stay in the fully up or fully down position, while still allowing it to rotate – a sort of click mechanism.  Mr  Hulme said that screw fixtures for cable winders were commonplace and gave a historical example in the field of vacuum cleaners.  I am not sure how compelling his example is, but he did not prove that this particular design existed in his example, so that evidence does not demonstrate that it is commonplace.  Qualtex also produced what Mr Arnold described as “a rather ancient patent” (1936) relating to a vacuum cleaner which showed a cable winder biased against a spring.  This shows at most that at that point someone had a similar idea.  It does not show it was commonplace.  The evidence on commonplace was insufficient to demonstrate that this fixing mechanism was commonplace.   Last, Qualtex’s final submissions did not expressly rely on the general commonplace argument in relation to the shape of the tab, but for the sake of completeness I record that were it to be advanced, on the same material as Mr Hulme advanced in relation to the 1992/1995 tab, I would reject it for the reasons that I have given above in that context.
143.	It follows that with the exception of the must fit aspects which I have referred to above, the 1997 cable winder attracts design right.  
The DC01 1997 wand handle as a whole
144.	Large parts of the 1997 wand handle itself were not original, having been carried over from 1992 and then 1995.  Those aspects of the design are still the subject of design right, though the commencement dates are the earlier dates applicable to those designs.  Dyson does not claim a fresh commencement date for design right for any aspect of the handle save for the cable winder.
The DC01 soleplate assembly
The nature of the item
145.	Reference should be made to the photographs to see what this item looks like.  It is attached to the underside of the machine and is the principal part that makes contact with the surface to be cleaned. Within it is supported a brush bar, and the bristles engage with the surface through three rectangular apertures.  The more solid looking piece channels the airflow from the rectangular airflows and up into the machine and carries the dust there. 
146.	In fact this item is made up of two separate items.  They are shown separately in the second and third photographs of the part in the Annexe.  The first of them is what is known as the cradle.  It is held inside the other piece, which is known as the soleplate.  The cradle is pivoted about two protruberances, one at either side, which fit into holes in the soleplate, and its movement about those pivots is partially restrained by a small rubber band fixed to the front of the cradle and which hooks over a hook on the front of the soleplate.  This allows the cradle to adjust itself to irregularities in the surface being cleaned and to spring back when that adjustment is not required.  The soleplate itself is fixed rigidly on to the bottom of the machine by screws.  There is a piece protruding backwards towards the machine which contains an air channel; it passes up and fixes on to a correspondingly curved part on the bottom of the body of the machine.   The large hook-shaped feature on the soleplate follows the profile of the rotating brush, and contains a channel down which the belt drive for the brush passes.  I shall take the soleplate and the cradle separately and in that order.

The soleplate 

DC01 soleplate - Originality
147.	This design of soleplate was the second attempt at creating such an item.  When the DC01 was first launched it had a one piece soleplate.  It was then found, or at least feared, that the arrangement of which it formed part infringed a patent, so it was redesigned in 1995.  Mr Andrew Thomson was primarily responsible for designing the soleplate part, and Mr Alex Knox was primarily responsible for designing the cradle.
148.	Mr Thomson told me, and I accept, that the starting point of his design was the former one piece design.   However, the extent to which he copied that, as opposed to starting anew, was not fully investigated with him in cross-examination, and his witness statement does not deal with it.  Looking at the piece, there are some aspects of it at the upper end of the air channel which resemble aspects of the fixed soleplate, but not many, and many of those aspects are covered by must fit anyway, as will appear.  Qualtex accepts that a number of aspects of the soleplate, and particularly those which relate to the cradle, were new in 1995.  If there are any unoriginal parts they are not likely to be significant, or to affect the result of this case.  In those circumstances I do not propose to address the subject of originality separately.  I shall assume that the whole of this part was original.
DC01 soleplate - must fit
149.	Again, I shall deal here with only those features which are disputed.
150.	The rear of the cradle moves over a curved surface on the back of the soleplate.   It is accepted that this interface is covered by the must fit exception.  There is then a short vertical “wall” before the top of the back of the soleplate, which is also caught by the must fit exception. There is a dispute about this short wall – Qualtex says it is within the exception, and Dyson denies it. Mr Arnold’s final submissions did not expressly claim this feature, though his expert did, and I should deal with it.  There was little debate about this in cross-examination.  In my view it does not come within the words of the section.  It does not enable any relevant juxtaposition.  
151.	The rearward extending part of the soleplate contains the channel up which the airflow passes.  Qualtex claims that this channel is within the exception.  Other than the actual aperture at the machine end, I find that it is not.  It does not fit within the wording of the section – it does not “enable” a connection, or placing around or against either article within the meaning of the section.  It enables the machine to work, but that is different.
152.	Towards the top of the rearward extending portion there are two ribbed features with semi-circular cut-outs.  These features are relied on by Qualtex as must fit since there is a spindle on the machine which sits in these cut-outs and around which the cleaner head revolves, according to the evidence of Mr Thomson.  There is a matching feature on the cleaner head on the machine.  This feature was not claimed in the pleadings, but it was claimed in Mr Hulme’s report.  I am not sure whether in the end it was disputed by Dyson, but if it was then I formally rule that this feature clearly comes within the must fit exception.  It enables the soleplate to co-operate with the spindle or spigot and with the cleaner head by fitting around the former and against the latter to enable all three to perform their respective functions. 
153.	It is accepted that the curved surface of the rearward extending portion is caught by the exception.  However, there is a dispute as to one or both of the two side walls of that portion.  In his final speech Mr Arnold claimed both those walls as must fit.  His pleaded case claimed neither, but Mr Hulme claimed the outer wall (which is the far wall which cannot be seen in the photograph – it is the inner wall which is visible) which, he said, allowed the soleplate to fit and move against the wheel of the machine.  I shall not deal with the inner, which was not part of the pleaded or expert’s case.  As to the outer, there is a clearance of about 2-3mm between the wall and the wheel of the machine.  It is not intended to interface in any particular way with the wheel, though (like any other part of the machine in that region) it obviously must not foul it.  Looking at the two parts (wheel and surface), there is obviously no connection, and it cannot properly be said that the latter is designed as it is to enable it to be placed against or around the wheel.  It is too far removed both spatially and in design terms for any question to arise as to that.  It does not come within the must fit exception.
154.	In his report Mr Hulme claimed that the inside of the soleplate had been designed to fit around the brush roll while leaving enough space for dust and debris to be sucked through the machine.  He coloured a drawing which showed the parts which he intended to be within this description (along with other parts).  In his final speech Mr Arnold claimed “generally” parts which fell within a similar description.  I should make it clear that I will not make a finding in such general terms.  Mr Jupp did not take issue with the pleaded case on this point (again achieved by reference to a drawing) and Mr Jupp agreed with that save for the vertical wall that I have referred to above.  Because of the general way in which this point has been made I should make it clear that under this head I do not find that must fit applies to any feature of the soleplate which is not accepted by Mr Jupp in his report.
155.	There is a rubber bumper strip which runs along the front of the machine at the bottom and turns down each side of the cleaner head.  At the rear of the strip it is fixed into a gap between the “jaw” of the soleplate and the cleaner head.  In his final speech Mr Arnold claimed features which enabled the bumper strip to be fitted to this gap (or recess, as he called it)  and across parts of the side of the soleplate.  This feature, or these features, were not dealt with in the pleadings or in either expert’s report.   However, Mr Jupp admitted that where the bumper strip interfaced with the jaw of the soleplate and the opposite surface of the cleaner head there was an area which fell within this exception.  Despite the fact that this was not pleaded or relied on by Mr Hulme, I propose to find that this area also falls within the must fit exception.  Had Mr Arnold sought to amend immediately after this evidence was given I cannot see that the amendment could have been realistically opposed.  In practical terms Mr Arnold just got on with the trial without making such an application, but that is not to be held against him.  On this occasion, therefore, I will allow this point despite its not being pleaded or put in experts’ reports.

DC01 soleplate - surface decoration
156.	There was one disputed element of surface decoration, namely some triangular ribbing which runs along the underside of the rear of the soleplate. Mr Hulme for Qualtex accepted that this ribbing was primarily to add strength but said that the choice of triangular ribbing was also decorative, albeit secondarily.  If it be thought to be odd that anything on the underside of the machine could be decoration it should be pointed out that the same flecked plastic was used for the Dyson soleplate as in the rest of the machine, and Mr Knox accepted that owners of machines would see the bottom of them when they replaced the belt and brush bar.  However, he also said, and I accept, that the design of the bottom of the machine was "very much driven by the function of it, not the look of it”.  I find that this triangular ribbing is not in any way surface decoration – it is purely functional and part of the overall shape and configuration of the part.  Even if I am wrong about that, and there is a decorative element, on Qualtex’s own case it is subsidiary, and in the light of what I have held to be the correct approach to surface decoration above this subsidiary nature is not sufficient to invoke the exception.
DC01 soleplate - commonplace
157.	Qualtex submitted that when one had removed what one had to remove as falling within the exceptions, what was left was commonplace, being little different from many other soleplates.  Qualtex relied on the soleplate design as a whole, and on the triangular ribbing (though the latter did not figure under this head in Qualtex’s final speech).  Mr Hulme produced evidence which he said supported his claim.  He said that there is nothing new about soleplates.  Their use, he said, is widespread.  That may be true, but it does not make the Dyson soleplate commonplace, any more than the common nature of car door panels would make a particular panel commonplace.  Nor is it possible, on the evidence, to find that what is left of the Dyson soleplate after deduction of the excluded areas is commonplace.  It is actually not at all easy to perform the task of separating the elements out for these purposes, but when the intellectual exercise is done there is no evidence that what is left is commonplace within the concept used by the Act.  One is left with a disparate collection of features, which overall do not give the idea that they are commonplace.  Mr Jupp said as much in cross-examination and I accept his evidence on that, though I think I would reach the same conclusion without that evidence. 
158.	Turning to the triangular ribbing, Mr Hulme produced three examples of ribbing in the context of vacuum cleaners.  One was in a separate soleplate on a Hoover cleaner head, one was on the underside of a patented machine of which there was no evidence of commercial exploitation, and the third was in a Qualtex part (again a cleaner head) which was copied from an earlier part.  The ribbing all differed in various ways, and to various degrees, from the ribbing on the bottom of the soleplate.  None of them establishes that this ribbing was commonplace.  They only show that the idea of ribbing (probably for strengthening purposes) had been used in three vacuum cleaners in various ways in the past.  That does not even get close to establishing that the Dyson ribbing is commonplace.  
159.	I therefore find that nothing about the soleplate is commonplace.
DC01 soleplate - infringement
160.	It is common ground that the soleplate has been copied, and copied very closely.  Since this means that non-excepted parts have been copied, it follows that Dyson’s design right has been infringed.
The DC01 cradle
DC01 cradle - originality
161.	Dyson maintained that the cradle was original.  Qualtex disputed this, saying that it was partly derived from the earlier fixed soleplate and it was partly inspired by the cradle on a brush tool known as the Wessel Werk PT 160. 
162.	I find that the cradle was original in its entirety.   There was evidence that the designers had seen the Wessel Werk piece, but it did not go much further.  Mr Knox admitted that he saw the piece, and that he designed a piece which rocked in a similar way.  Mr Thomson merely said he saw the part. The cradle on this piece does not look anything like the Dyson cradle. That is as far as the evidence in relation to other parts went.  It therefore demonstrated a familiarity with an idea.  That, or “partial inspiration” if that is the right description of that state of affairs, is not sufficient to deprive a design of its originality if it was otherwise created without copying, and there was no evidence of copying from the Wessel Werk product in the relevant sense.  I find on the evidence that I heard that Dyson employees created this design without copying.  
163.	Two aspects (namely the front edge and bleed holes at the side of the cradle) were said by Qualtex not to be original over the earlier fixed soleplate.  The evidence of Mr Knox on this point was that the front edge was “substantially similar” to the corresponding feature on the fixed soleplate, and the evidence of Mr Fitton (who assisted with the design) was that he accepted that he and his colleagues were “aware” of the bleed holes in the sides of the cradle.  He did work to see what size and shape of holes worked best.  It was not put to either of them that they copied prior designs and I find that they did not.  
164.	Accordingly the sort of copying which is necessary to prevent originality did not take place.  I find that the cradle design was original.
DC01 cradle - must fit
165.	Qualtex claims must fit for the sides of the cradle except the small part showing clear of the soleplate at the bottom.  This was not claimed in the pleading but it is claimed in Mr Hulme’s report.  Mr Jupp did not accept this in his report, but he accepted in cross-examination that the sides of the cradle, which are inside the side walls of the soleplate, “interface” with the sides of the soleplate.  I have already pointed out the dangers of substituting shorthand words for the statutory words, but I am satisfied that on this occasion Mr Jupp was accepting that the nature and proximity of those side walls fell within the wording of the statute.  I find that they do; they are parts of the cradle that enable it to be connected to, and placed in, the soleplate so that both parts can perform their respective functions.
166.	In relation to the brush roll, it is common ground that the side features of the cradle which hold the brush roll in place are within the exception, as are the top sides of the two plastic strips which divide up the aperture through which the bristles rotate.  Those strips stop the cleaner sucking up light carpets, and they have to be where they are because they coincide with gaps in the rows of bristles on the brush bar, and if they were anywhere else they would not allow the bristles to turn.   In addition, Qualtex claims, as features which enable the brush roll to operate properly, “the whole of the inside of the cradle which is designed to fit around the brushroll providing clearance for the bristles and to define the suction path” (to quote from Mr Arnold’s written final submissions).  This reflects one of the views of Mr Hulme, whose report said that the whole of the interior of the cradle was designed to fit around the spinning brush bar, its drive parts and end caps.  It goes too far.  There are certainly parts of the interior that are specifically designed to interface with the brush bar, and these parts are among those identified in the drawings annexed to the Defence and agreed by Mr Jupp and Dyson – for example, the rug strips, the curved section designed to accommodate the belt and the sides which interface with the end caps of the brush bar.  However, it is not accurate to say that the whole of the interior is designed to fit round it.  It is true that the interior should not foul the brush bar, but there is more space around it than is necessary merely to accommodate it.  Part of that space is designed to achieve the necessary air flow.  It is therefore not accurate to say that the whole interior is a feature which enables it to be connected to or placed around the brush bar in order to enable it or the brush bar to perform its function (to use the words of the section).  In particular I reject the claim (if made) that the shape of the holes through which the bristles agitate the carpet fall within the exception.  It is necessary for there to be some holes, but these particular holes were not designed exclusively to accommodate the bristles.  They could have been larger, or they could have been smaller (but perhaps only slightly).  As was pointed out in evidence, the size of the hole is affected by the desired airflow, and they might have been made a different size.  The position of the fore and aft edges of the holes is not determined by the need to interface with the brush (save in the common sense way that they must not be so close as to foul it).  I therefore reject this broad submission and that particular manifestation of it.
167.	Next is a dispute about the lower front and trailing edges of the cradle.  These are curved, and the evidence was that these curves assist the passage of the business end of the cleaner over the carpet.  Qualtex says that that brings those aspects within the must fit exception; Dyson denies it.  Dyson seems to take that view because (according to Mr Carr’s final submissions) only the flat portion at the bottom of the cradle engages the carpet (and as a result Dyson concedes must fit in relation to that flat underside).  However, that seems to me to go contrary to Dyson’s own witnesses (Messrs Fitton, Knox and Thomson) who accepted that its purpose was to smooth the carpet pile out of the way.  This means that these features enable the cradle to be placed against the carpet so that the cradle can perform its function (of passing smoothly over the carpet so that the brush and airflow can be directed so as to clean it).  Since Dyson accepts that the flat parts are must fit, I find that these other features fall within the exception too.  (I should record there was no debate as to whether the carpet was another article for these purposes – Dyson accepted that it was. )
168.	The same applies to the shape of the chamfered edges of the front and back of the holes.  The evidence of Mr Fitton and Mr Jupp was that these edges were shaped so as to interact properly with the carpet when the cleaner was being pushed and pulled.  I find that these features too (in terms of their shape) fall within the exception.
169.	Last under this topic are bleed holes in the side of the cradle.  The sides of the large holes in the bottom of the cradle do not have flat bottoms.  They have a rounded profile with two partially circular apertures which allow air to pass through them into the body of the cradle when the machine is switched on.  Their purpose is to make sure that the airflow does not get completely blocked during cleaning, and to contribute to the airflow when cleaning up to something like a skirting board (according to Mr Fitton).  Qualtex claimed must fit for these features.    I do not consider that the exception applies to them.  The essence of the must fit exception is that it applies to features that are essentially part of a connection – they facilitate a level of connection even if it is only to the extent of allowing one article to be placed against another.  That is not true of these bleed holes.  They are not part of the connection – if anything, they are an aspect of disconnection.   They are a feature which enables the machine (and the cradle) to work, but that is not enough.  They do not enable a connection of the kind referred to in the statute to be made.  I can illustrate my point by taking the example of a modified electrical plug.  Imagine a modern three square-pin plug which is to be used in a situation in which heat is likely to be generated at the connection with the socket.  In order to dissipate this heat grooves are cut across the surface between the upper pin and the lower pins so that there is an air passage across this surface when the plug is in place – the plastic face of the plug is not contiguous with the plastic face of the socket along those grooves.  Those grooves do nothing to enable the connection between the plug and socket – that works just as well without the grooves.  They enable the plug and socket to be more effectively (and safely) used, but that does not bring them within the section.  The bleed holes in the edges of the cradle are in the same category.
DC01 cradle - commonplace
170.	There is again difficulty in visualising the cradle without excluded items, but when that is done what is left is certainly not commonplace.  There was evidence that pivotable cradles were known in the field, but even if that idea as an idea were commonplace it would not follow that any particular manifestation of it, and in particular the Dyson manifestation, was commonplace.  It certainly was not.
DC01 cradle - infringement
171.	Since it is common ground that the cradle has been copied as part of the overall soleplate assembly, it follows that there has been infringement in relation to those aspects which are not covered by the exceptions.  
DC01 lower hose cuff
172.	I have already described the DC01 hose assembly in general terms. The lower cuff of this hose, which fits into the bottom of the machine, can be divided into 5 features for the purposes of exposition.  There is a bottom cylindrical feature which fits into a socket on the body of the machine.  No dispute arises as to that – it is must fit.  Then there is a mid-section cylindrical shape; then there is a conical flare for half the upper circumference of that cylindrical shape.  On the back of the mid-section is a tab the top of which locates in a hole on the body of the machine to fix the cuff.  And on the front is a cable winder around which the cable is wound when the machine is not in use.  Design right is claimed in the cuff, subject to some must fit aspects which are conceded.
DC01 lower hose cuff  - originality
173.	The hose assembly was worked on by a team comprising Mr Jones, Mr Gammack, Mr James Dyson himself and Mr Jupp.  Mr Gammack told me that he created the first design for it.  It was modified thereafter by Mr Jones, and Mr Dyson, and Mr Jupp contributed to it.  Mr Jones said that a hose cuff on the Iona Fantom was a “probably … a reference point” for the design.  Mr Gammack was aware of it, and said in cross-examination that it was a reference point,  but said he did not copy it.  Qualtex submitted that this meant that only certain parts (which do not have corresponding aspects) on the Fantom cuff, were original.  I do not accept this.  I accept Mr Gammack’s evidence that he did not copy the Fantom cuff.  Like many other parts, the ideas for the cuff came from elsewhere, but they were not imported in such a way as to make the cuff non-original.  The design for this cuff was original.
Must fit
174.	First, I consider the mid-section cylinder.   When the cuff is placed in position on the machine roughly half the outer circumference of the mid-section cylindrical shape is visible.  Qualtex do not claim must fit for this part.  The other part (the back half) is enveloped by a large groove or trough at the back of the machine.  Looking at the machine from the rear, the trough can be divided into three sections.  The right hand third of it is circular; its arc matches the arc of the cuff.  The mid-section is very slightly convex, and at the bottom of it there is a raised section which is surrounded by two locating ribs on the back of the cuff (the ribs are accepted by Dyson as must fit).  On the left the left hand face is flat, and moving round to the back there is a vertical partition in which the internal power cable is fitted. 
175.	The effect of this is that when the cuff is in place, at the back right the cuff lies along the plane of the trough.  In the mid-section the ribs fit either side of the raised portion of the machine; and on the left the curve of the hose cuff does not follow the contour of the trough.  Qualtex claims must fit for this entire back half of the cylindrical section; Dyson denies it.
176.	I think that Qualtex is correct.  It is clear that the right hand side is intended to fit into the corresponding arc on the trough.  The ribs in the middle of the back of the cuff are intended to locate either side of the raised feature on the back of the machine even if the section between them does not follow the contour of that part of the machine.  And the remaining third is intended to fit within the trough.  Taking a realistic view of the section, I consider that the back part of the cuff is a feature which enables it to be connected to, or placed against, the back of the machine.  It is a round peg which is designed to enable it to fit into a partially round and partially square hole, and if the fit is not perfect (which it is not) it is nevertheless a fit of sorts.  I therefore find for Qualtex on this point – the rear curved face of the cylindrical section is excluded by must fit.
177.	The position and shape of the part of the catch which fits into a correspondingly shaped hole in the back of the machine is claimed and accepted as must fit.  Qualtex also claim the vertical tab on which that other part is mounted.  I think it is right to do so.  The raised feature at the end engages with the actual hole on the back of the machine, but it needs to be sprung into place and that is achieved by mounting it on a flexible tab.  For these purposes the tab is a feature that enables the connection of the two parts and enables the raised part to fit be placed in the relevant hole and to stay there. 
178.	The next disputed area is the conical or flared section at the top of the cuff.  Two aspects of this are accepted by Dyson as being must fit – the edges of that flare which abut the sides of the machine, and the rounded, beaded edge at the top.  The former enables the cuff to be placed against the machine without rotation, and the latter enables the hose to be bent over the edge of the cuff (as it will be when used with a tool in the wand handle or at the end of the hose) without cutting through the hose.   It struck me that in relation to this second feature it is not easy to fit it within the wording of the section.  It is an interface (a phrase often used by Mr Jupp) but “interface” is not the right test.  But be that as it may, that was Mr Jupp’s view and Dyson accepted that as its stance on this aspect and did not seek to resile from that.  I will therefore proceed on the footing that that concession is correctly made.  That leaves the inner (as opposed to the top)  face of the flared part itself.
179.	Mr Hulme considered that this flare was a must fit item.  It was there to provide a “sympathetic curve” to prevent the hose adopting a sharp curve over the edge of the cuff which would imperil the integrity of the hose.  On the facts, the hose can bend over the edge of the flare and, on many occasions, it will not touch the flare at any point other than at its beaded top (or where the cable winder is attached).  It will only touch the actual surface of the flare if it is fully extended in its lower region; in that event some of the “rings” on the flexible hose will actually touch the flared surface.
180.	The interior of the cylindrical part of the cuff is accepted by Dyson as being must fit.  That is the part which attaches the hose, via a thread feature at the end.  Although it is not threaded for its entire length, and although the hose is not physically in contact with the cuff for the entirety of the cuff’s length (there is a very small clearance from time to time) it is obviously right to treat the whole of this interior as being must fit because the whole of it enables the hose to be connected to the cuff so that each part can perform its function – the hose to function as a flexible hose, and the cuff to function as that part which joins the hose to the machine.  The realistic and sensible view of the flare is that it does the same thing.  It is in a very real sense an extension of the interior of the cylindrical portion.  The interior guides the hose away from the fixing point in a secure fashion.  The flare does the same at a spatially removed point.  It enables the cuff to be placed against or around the hose so that the cuff can fulfil its function of protecting the hose, and so that the hose can fulfil its function of being a flexible hose safely. I know that I have just added the word “safely” to the statutory formulation, but the integrity of the hose is a quality of its function for these purposes, so it is merely elucidating its function, not adding a gloss to the statutory test.  For those reasons I find that the flare falls within the must fit exception.  The stepped portion immediately below the flare falls to be treated similarly for the same reasons.
181.	Next there is the tongue/cable winder.  This feature fulfils the same function as the winder on the wand handle – the cable is looped around it when the machine is not in use.  The main dispute here concerns the shape of the vertical tongue.  The cable fits against the horizontal “bridge” and is prevented from slipping off by the vertical tongue.  Qualtex claims the whole of this feature as a must fit feature.  Dyson does not in terms accept any of it, but Mr Jupp acknowledged that the cable would interface with the horizontal internal face and part of the internal face of the tongue.   In my view the internal horizontal face falls within the exception in the same way as the horizontal component of the upper winder boss does.   The outer face of the cuff, which retains the hose on one side, is in effect already within the must fit exception as part of the flare (see above).  It is not possible to say that the whole of the inner face of the tab falls within it because the cable does not engage with the whole of the inner face; nor does it engage with the edges.  The shape is irrelevant to the engagement.  Quite how far the cable engages is not clear, but I do not need to indulge in a detailed consideration of that point because it is clear enough that must fit does not apply to the whole of the shape of the tab.  
DC01 lower hose cuff  - must match
182.	Qualtex relied on a “visual echo” between the tab on the lower hose cuff and the tab on the upper cable winder, and said that this gave rise to must match.   The extent to which there is such an echo is highly debatable on the facts – if I had to decide the point I would decide that there was no such echo.  They are both curved at the end, but that is not saying much, and they are differently shaped (the lower tab is tapered; the upper tab has parallel sides) and differently sized.  I see no particular echo there.  But even if there is one it is not enough to found the must match exception – see above.  There is no element of dependency at all.  
183.	As an afterthought to his first report, Mr Hulme pointed out that the cylindrical midsection of the cuff matched the cylindrical part of the upper hose cuff because they were the same diameter, and he thought that must match therefore applied.  This is, with respect, fanciful.  It confuses similarity or actual matching with the sort of design dependency that is required by the must match exception.  There is no question of any such dependency in this article.  If one changed the shape of the cylindrical section one would not necessarily radically affect the appearance of the whole assembly.
DC01 lower hose cuff –-  commonplace
184.	My conclusions mean that there are not many features left when one has excluded the must fit items.  However, they are not obviously ordinary.  Mr Hulme produced documentary evidence of various pieces of prior art which he said supported his claim that the lower hose cuff was commonplace.  Some of them were obscure – drawings on patents with no evidence of their commercial exploitation.  They go no further than demonstrating that hose cuffs, sometimes with hose guides, have been designed or in some cases produced.  One of them in particular (a Sebo item) sold in some numbers (thousands, according to Mr Hulme) but it looks nothing like the Dyson cuff.  Having considered this evidence carefully, I consider that while it might establish that the notion of a hose cuff is common, it does not go further and make this particular design (or those parts of it which are left after the excepted features are excluded) commonplace within the meaning of the Act.  There is nothing run of the mill or hackneyed about them.
DC01 lower hose cuff - infringement
185.	Since copying is admitted, again I find that there has been infringement of Dyson’s design right in this piece.
DC01 tool adaptor
186.	In later DC01 models the upper hose cuff can be detached from the wand handle and the aluminium tube can be slid out.  This leaves the hose available to the user for above-floor vacuuming with a tool (such as a small brush) fitted into the end.   However, the end of that cuff does not have a diameter which can accept the diameter of the tube part of the available tools.  The adaptor which is the subject of this part of this judgment is one which fixes that problem by having two linking tubes, one with a diameter which fits on to the hose, and the other of a greater diameter which can accommodate a tool.  One end of the tube also fits over a post on the body of the machine for storage purposes.  As can be seen from the photograph in the Annexe, this part therefore comprises two tubes each side of a central ribbed bulge. It was designed by Mr James Lamb starting in 1994, and was first marketed in 1995. 
DC01 tool adaptor  - originality
187.	Mr Lamb gave an account of the design of this item which does not suggest that he copied it from elsewhere and which makes it clear that it was his own design.   If that is true then it is original.  The only attack on originality comes from an averment that in cross-examination Mr Lamb agreed that it was not a coincidence that the tool adaptor had the same number of ribs of almost the same thickness and spacing as the bulged end of the DC01 wand handle.  He did say words to that effect, but it was not put to him that he copied from there, and he expressly denied copying in his witness statement.  This denial was not challenged.  Therefore such derivation as there was does not deprive the adaptor of originality.  I reject this argument of Qualtex.
Must fit
188.	For once there is no dispute as to the scope of must fit.  Both parties accept that the tubular ends fall within this exception.
DC01 tool adaptor  - must match
189.	Qualtex asserted that must match applied to the central ribbed portion because it matched the wand handle bulge in terms of the number, thickness and spacing of ribs.  It relied on the fact that Mr Lamb accepted the similarity of appearance, and that he accepted suggestions put in cross-examination that it was “complementary” to the bulge and that it gave the user the message that it went with the DC01.  Again, Qualtex relies on the visual link, which Mr Jupp accepted.  
190.	All those factors in the evidence are true, and if the question were whether the tube did in fact match the bulge then I think I could say that it did.  However, that is not the test.  The test is the statutory words, which do not contain the words “must” or “match”.  The test is design dependency of the kind I have referred to above.  I do not consider that this aspect of the design is dependent on the design of the bulge on the wand handle.  The fact that it does match is not the test.  If one applies the test of considering whether a consumer simply would not buy a differently designed part, I cannot believe that it would be fulfilled.  Its design is nothing like as “dependent” as a car body panel.  Mr Hulme said in cross-examination that one did not have to have ribbing but if you did then it had to match.  I accept the first part without hesitation, and that is enough for this aspect of the case.  It means the design dependency required by the section does not exist.  I do not think I would accept the second part, but that does not matter.
DC01 tool adaptor  - surface decoration
191.	The ribbing is said by Qualtex to be surface decoration.  Mr Jupp’s evidence was that it concealed the change in diameter in the tube, but it also provided grip when the user was inserting and removing features from each end. Mr Lamb said that its function was partly grip, but concealing the diameter change was more important “from a design point of view”.   Mr Jupp considered that it concealed the diameter change, but the grip function was “crucial”.  
192.	Were it not for the gripping function then I think that this would be a much more marginal decision on surface decoration than in relation to some of the ribbing.  However, it is quite clear on the evidence, and I find, that giving good grip was a very significant, and certainly not a subsidiary, function.  For that reason alone, therefore I find that this ribbing is not surface decoration.  
DC01 tool adaptor  - commonplace
193.	There was a commonplace argument based on two features.  The first was the allegedly commonplace nature of adaptor tubes.  The second was an argument that the DC01 had rendered this particular sort of bulge commonplace.  I reject them both.  Adaptor tubes may or may not have been common, but there was no evidence that this particular design for the middle of such a tube (which is what I have to consider) was commonplace.  Mr Hulme referred to, but did not produce, an adaptor which had a step in the middle with some sort of band round it.  That is nothing like the Dyson tube.  The success in the market of the DC01 prior to this tube being marketed does not render its sort of ribbed bulge in the product and position in which it occurred commonplace.  I reject the argument that the bulge was commonplace.
DC01 tool adaptor  - infringement
194.	The Qualtex part is not an exact copy of the Dyson part.  The ribbing detail is slightly different in that the Qualtex part has six shallow ribs running at right angles to the circumferential ribs, in two groups of three.  However, Mr Hulme accepted that it was, and was intended to be, a close copy.  I find that it is a substantial copy within section 226(2) of the Act, and that it therefore infringes the design right of Dyson.
The DC07 stair tool
195.	This is a tool which fits into the end of a wand, or on to the end of a hose, in order to clean surfaces on a smaller scale.  There were two versions of this part – original and modified.  A photograph of the original version appears in the Annexe.  The original was designed in 2000; the modifications were made to the design in 2001.  It is common ground that the DC07 head was copied by Qualtex, and a study of the Qualtex part reveals that the Qualtex version is a copy of the original version with the addition of one feature from the modified version.  To complicate matters, parts of the original version were, Dyson admits, copied from an earlier part called the DC03 stair tool.  This means that where design right is claimed its genesis may be in one of three products.
The DC07 stair tool - originality
196.	The DC03 tool was a similar tool which was designed in the second half of 1997 by Mr Matthew Allard.  The footprint of the head was the same as that in the DC07 piece, it had a connecting tube and there was external ribbing (designed differently) along the piece which joined the tube to the head.  Other than that the detail of the DC03 piece and the DC07 piece was different.  It is accepted by both sides that the tube and the detail which fixes the tube to the head are excluded by must fit, so there is no point in considering any other exceptions in relation to that tube.  
197.	The first DC07 piece was designed by Mr Howes.   His instructions were to redesign the DCO3 head to improve pick up.  He does not expressly say that he copied the ribs, but Dyson seems to accept that he did even though, to my eye, the profile of the ribs on the DC07 piece seems to be different and they do not appear to be an exact copy.  I shall therefore proceed on the footing that they were copied.  This means that the originality of this feature has to be tested as in the DC03 piece.  
198.	Mr Allard gave the history of the design of this piece.  He admitted that he took another stair tool (the DC01 stair tool) as his starting point but it is obvious that he did not copy it.  For certain of the details he took a brush tool as his starting point.  In addition he agreed that he was influenced by the ribbing to be found on the brush tool.  However, he denied copying those ribs and pointed out certain differences.  The denial of copying was not challenged in cross-examination, and I find that he did not copy.  Taking something as a starting point, or being influenced by something, does not make a product non-original.  I therefore find that this ribbing was original in the DC03 part.  It was copied over to the DC07 where it was not original, but its originality exists in the earlier part.
199.	Other features of the DC03 tool were relied on by Qualtex as being non-original because they had origins in the earlier stair tool, and similarities were relied on.  However, once again the evidence gainsays copying in the sense in which I have identified it above, so any relevant features of the DC03 tool which were carried over into the DC07 tool do not lack originality.  I do not need to pursue the detail of this.
200.	It was said by Qualtex that the shape of the head of the DC07 tool was a copy of the DCO3 tool and was therefore not original.  That is accepted by Dyson – the shape of the overall head was copied in terms of its footprint.  This is because the DC03 head was taken as the starting point to which modifications were made, and modifications were made to the upper surface and the internal parts of the underside.  The footprint remained the same.  However, this was original in the DC03 part.
The DC07 stair tool - must fit
201.	The concession of Dyson in relation to the tube and its fittings on the head means consideration of this point can be confined to aspects of the head itself.  Qualtex’s final position was that the whole of the flat underside surface was excluded by must fit because it interfaced with the floor.  Mr Jupp accepted that, and Dyson did not seek to resile from that concession so I do not consider this further; nor do I consider whether Qualtex’s claim about this was right, although I am not certain that it is.  This carries the front and rear trailing edges, probably as a matter of both concession and logic.  

202.	In his final speech Mr Arnold claimed must fit in relation to 8 rectangular airholes (or 6 in the modified version) in the top of the head which allowed the passage of air so as to enable the stair tool, as he put it, to be placed against an object without sticking and to maintain the airflow in the cyclone (for cleaning purposes).  They were not relied on in the pleadings, and were not claimed in Mr Hulme’s report.  They therefore fall outside what it is permissible for him to raise.  However, since I have come to a clear conclusion on them I will express it.  As a matter of literal fact Mr Arnold is right, but this does not make the holes a “must fit” matter within the wording of the section.  They are not part of the connecting feature (which, for these purposes, has been conceded to be the flat undersurface of the head).  They are too remote, both spatially and conceptually, to fall within the section.  The head can be placed equally well against a surface (to use words taken from the section) whether the holes are there or not.  What the holes enable is airflow so that the machine works (by allowing an increased airflow to carry the dust away), and airflow so that the motor does not burn out.  That is the true view of the situation.  That does not fit within the wording of the section, and the holes are therefore not a must fit feature.
203.	In his final speech Mr Arnold claimed must fit for the tips of a comb that sits within the channel on the underside of the tool.  It has six broad prongs whose job is to agitate the carpet fibres.  In cross-examination Mr Hulme said that in hindsight he should have coloured this feature in as excluded on a must fit basis.  That is too late to introduce this point, though I would add that the point is clearly wrong.  The must fit exception does not apply to every aspect of a part that has a function (which it is likely to have) and which happens to lie against another part.  There has to be an enablement of connection, or of placing, or of placing around.   These combs do no such thing.  They do not enable any of those things in relation to the part, or of any part of the part.  They have a job once a connection is made, but their job is no part of the connection.  Mr Hulme’s last minute attempt to refer to this is a good demonstration of his putting forward anything that might be argued to help his case rather than a properly considered dispassionate expert opinion.
204.	Much the same sort of approach falls to be adopted to the claim made in the final speech that the internal channel in the head is a must fit item.  Again, this was not claimed in the pleadings or Mr Hulme’s report, and it is not a claim that can therefore be entertained.  However, I consider it is a wholly false claim.  It simply does not come within the wording of the section when properly construed because it does not enable the connection or the placing on the carpet.  It enables functionality, which is different.
205.	Last under this head are various features said to enable the tool to fit on to machines for storage.  Although this part is called the DC07 stair tool, it was intended that it be used with the DC04 machine as well.  On the top of the cyclone part of that machine there is an imprint of the profile of the tool (when the tube is rotated so as to straighten it out) – it looks as if the tool has been pressed into the soft plastic and then removed.  The purpose of the imprint is to hold the tool for storage when it is not in use.  Qualtex claims “most of the underside of the head” as interfacing with this imprint.   Dyson, through Mr Jupp, accepts that the shape of the outside of the head of the tool is within the must fit exception because it corresponds with that pressed shape.  For my part I would have been sceptical about whether fitting into a storage compartment was within the section, but since it is accepted that it is I do not need to deal with it.  The shape is covered by other concessions anyway.  In his report Mr Hulme specifically claimed the backs of several of the ribs as falling within the exception for the same reason – that part of them fits within the groove.  However, while the general outline may be within it (on the concession made) it does not seem to me that an area of the ribs is within it.  If it matters I therefore find that the areas of ribs claimed by Mr Hulme are not excepted.  The most that is is the outline formed by the outermost points of the few ribs in question.  (And in fact the artificiality of this, to my mind, demonstrates the poverty of the argument that a shaped storage facility can bring “must fit” into existence in relation to a feature on the stored item which was never designed to facilitate storage.)  Last, and briefly, Qualtex claimed that part of the flat underside of the tool was excluded because when stored upright on a post on the DC03 machine this flat surface almost abutted an adjacent handle.  I regard this argument as fanciful and contrived, but it does not matter since the flat surface has already been conceded as must fit since it interfaces with the floor.
The DC07 stair tool - must match
206.	It is said that the ribbing is excluded because it makes a visual link with ribbing elsewhere on the DC07.   The only ribbing on a DC07 is the ribbing on the wand handle (which is similar to that discussed above on the DC01).  There might just be said to be a link here, but not much.  There is no link to anything else which might be said to be ribbing (the only other potential candidate being a barred vent below the cyclone).  The same is true of the DC04.  The ribbing is similar to the ribbing on another tool, but this is not, in my view, enough even if the other tool falls to be treated as part of the “other article” for the purposes of the section.  There is no evidence that another shaped tool would simply not be acceptable, and the whole article (machine and tool) would not be radically different if the tool were different – in fact it would hardly be different at all.  Accordingly must match fails.
The DC07 stair tool - surface decoration
207.	It was alleged by Qualtex that the main ribbing was surface decoration.  Mr Allard contended that it had a strengthening function.  I accept that this (strengthening) is true for the bottom 4 ribs which fix on to the tube and on to the body of the head, but it is not true for the other 2 (or the last one immediately adjacent to the tube join if that is treated as a rib).  However, this is not a purely subsidiary function, so it means that the ribs, or at least the bottom four, are not merely surface decoration.  But even in the absence of that evidence I would not find that they come within that exception.  In appearance terms the ribs (when first designed on the DC03 tool) were intended by Mr Allard to create a new “surface” to create a “flaring out” of the shape from a cylinder to the head.  That would have been apparent from the piece without the subjective evidence of intention.  I do not consider that to be mere surface decoration.  They may be fixed to the tube of the article, but they do not merely decorate the tube.  They add a new overall shape.  Nor do they merely decorate the tool head – they are part of its overall shape.  Accordingly I do not think that they are surface decoration for the purposes of the Act. 
208.	On the front of the tool, immediately above the upturned leading edge, is a row of short ribs in the nature of buttresses which join the upturned edge to the body of the tool.  These too were said to be surface decoration.  (They did not feature on the DC03 tool).  The evidence of Mr Howes was that they had a strengthening function, and this was accepted by Qualtex in Mr Arnold’s final submissions.  This function was not subsidiary, so by itself it would rule out these ribs from being surface decoration.  However, in any event, once again I consider them to be part of the overall shape and configuration of the article.  It makes no difference that Mr Howes said that he added a radius to them in the DC07 version for visual purposes.  That merely establishes that they go to appearance, not that that they are surface decoration.  
The DC07 stair tool - method or principle of construction
209.	It was said in Mr Arnold’s final speech that the holes in the top of the head were within the “method or principle of construction” exception in section 213(3)(a).  The idea of putting a hole in a tool head to cause airflow may fall within this exception, but that is not the basis of Dyson’s claim.  They claim design right in particular holes, shaped in a particular way, in a particular product.  There is no scope for arguing that the exception applies to that. They are seeking to protect particular holes, not the idea of holes.  The exception does not apply.
Commonplace
210.	Mr Hulme produced various designs, some quite elderly, in an attempt to show that the Dyson design (or what is left of it after the other exceptions are applied) was commonplace.  While tools of this general kind may be common (I make no finding as to commonplace), this design (after leaving excepted matters out of account) is most certainly not.  The evidence does not begin to establish that it is.  If it is not common it cannot be commonplace.  I reject this claim.  
The DC07 stair tool - infringement
211.	It follows that Qualtex have infringed in copying the DC07 stair tool.  They have infringed rights which in part go back to the DC03 tool, rights which in part come from the original DC07 version and rights which stem from the modified version.  What he has taken from the modified version is the rectangular bleed holes.  The original version had a row of 8; in the modified version the middle two have been blocked off, leaving 6, and it is this arrangement that has been copied.  Otherwise it is the original version that has been copied, including its comb (alterations to the comb was one of the modifications made later).  Qualtex have now removed the comb, but its product still infringes because it has substantially copied the protected item and protected features.   I do not think that at this stage of this judgment it is necessary to identify the source of the rights in relation to the various features.  If it is necessary to do that then the order can reflect it.
DC04 hose assembly lower cuff
212.	This fulfils the same function in relation to the DC04 as the cuff referred to above performs in relation to the DC01.  A photograph appears in the Annexe.  There is an inner part which is moulded on to the hose, as to which no issue arises, and a separate part which slides on and off the inner cuff and which is the disputed item for present purposes.  When in place on the machine the entire large cylindrical lower section sits in a similarly formed cylinder or cup in the machine and it has a retaining catch on a tab on the front, which engages with a similarly shaped hole on the cup.   In the case of this cuff the catch is on the side facing the user (which I shall call the front) rather than being on the back (as in the DC01 cuff, above). 
The DC04 lower hose cuff - originality
213.	The first design for this cuff was by a Mr Seaman.  I did not hear evidence from him.  It was then worked on by Mr Allard, and modified by Mr Fitton. Mr Allard told me that the “starting point” for the part was the DC01 hose cuff, but says that substantial modifications were carried out.  In effect he denies that any part was copied, as does Mr Fitton.  I accept their evidence.  I find the design to be original.
The DC04 lower hose cuff - must fit
214.	No issue arises as to the main body of the central portion of this cuff.  The inside interfaces with the hose, and the outside interfaces with the shape in which it sits.  There are, however, disputes about the catch detail and the upper portion.  
215.	Around the catch on the front of the cuff there is a cut-out area.  Qualtex claims that the size and shape of this cut-out falls within the must fit exception because the size and shape of the cut-out determines the force necessary to depress the tab to clear the hole.  Mr Jupp denied this.  What matters is that the D-shaped catch is mounted on a tab.  Having a cut-out isolates (and creates) the tab but the size and shape of the cut-out is irrelevant to this – it could be any size and shape.  I agree with him.  The tab falls within the exception  because that enables the connection , but the size and shape of the cut-out area does not.   
216.	There is a dispute about the main part of the curved shape at the top of the piece.  The dispute is much the same as the dispute in relation to the DC01 cuff.  Mr Jupp and Dyson accept that the top of the curved part is must fit in relation to the hose, but they do not accept the cylindrical stepped out portion below it; nor do they accept the outer (or underneath) profile of the rounded portion.  My conclusions on this are the same as in relation to the DC01 cuff – I find the inner cylindrical part and the surface of the curved “trumpet” (but not including the winder tab for these purposes – I deal with this below) are all must fit for the same reasons as in relation to the DC01 part.  It does not matter that parts of the upper cylinder are not necessarily physically touched by the hose (which is true, but it is only true of parts). Other parts could be if the hose were very extended, and in reality the upper cylindrical part is part of an overall feature which comes within the section.
217.	Last, there is a dispute as to the underside of the cable winder tab – the inner surface of the tab, the surface defined by the five ribs underneath it and the side body of the cuff opposite the tab.  
218.	As to the first, Mr Jupp pointed out that the vertical tab is not flat but is curved with an arc roughly parallel to the curve of the rest of the collar.  Accordingly any cable wound round the tab would not actually touch most of the rear surface of this tab – it would only touch the edges.  It was implicit in his evidence (though not explicit in his report) that he would accept the edges at least as being must fit.  Qualtex would argue that that makes the whole of the rear surface must fit.  I do not think that that is right.  The feature of this design which enables the cable to be placed against (and secured by) this part of the cuff is the availability of the edges (or part of the edges – less than the entirety is necessary) of the cable winder tab.   The rest of the curved surface is not there to do that.  The tab is must fit only to this limited extent. 
219.	Mr Fitton said that the purpose of the ribs was to make a “nice surface” for the cable to wind round.  It prevented the cable from snapping.  Mr Jupp accepted that the cable wound around these parts.  It seems to me that this inevitably brings the surface of those ribs within the exception in the same way as a continuous surface would have been.  Qualtex do not claim more than the surface of these ribs under this head and I find they are right to do so.
220.	The third side of the feature which retains the cable is the side of the collar opposite the tab.  I find that this qualifies.
The DC04 lower hose cuff - must match
221.	The ribbing on the catch and on the underside of the cable winder tab is claimed by Qualtex to be must match because it is similar to other ribbing and it forms a visual link with it.  For the same reasons as given above this is not sufficient to come within the section and I find it does not.  The design dependency simply does not exist.  Applying the marketability cross-check, whatever the position may be on other parts, there is no evidence that a part without these features on would not be marketable.  In fact such evidence as there is goes the other way.   Dyson produces a different hose cuff for the DC07 (it is not in issue in these proceedings).  Mr Hulme was originally going to copy that for production as well, but changed his mind and produced something which was not a copy.  The original had very significant amounts of ribbing on the body of the cuff, and the catch was made up of ribs.  Mr Hulme removed them all, and replaced the pronounced horizontal ribbing on the Dyson with some completely different vertical ribbing.  There was no suggestion that this was a commercial disaster and Mr Hulme obviously thinks that his part is saleable despite the absence of Dyson-type ribs.  The same should apply to the DC04 part.  Accordingly, this cross-check for design dependency does not make Qualtex’s case.
222.	Mr Hulme also claims the shape of the winder tab as must match because it must match the upper winder.  This, of course, mis-states the test.  Furthermore, even if it were the test it cannot realistically be said to match.  The upper winder has a curved end and straight sides which end at an annulus of greater diameter by which it fixed to the body of the machine.  It is flat in cross-section, not curved, and it is differently sized and proportioned.  If the bottom one had to match the top one, it would have failed.  However, as I have said, that is not the test anyway.  The design dependency required by the section is simply not fufilled.  This claim fails.
The DC04 lower hose cuff - surface decoration
223.	The ribbing under the cable winder or tongue and the ribbing on the release catch are both claimed by Qualtex as being surface decoration.  Mr Fitton said he designed the ribs under the tongue for a combination of strength, to define the surface and for aesthetic appearance.  The strengthening feature, which is not subsidiary, means that these ribs cannot be “mere” surface decoration and I find that they do not qualify as such.  Mr Fitton said that he designed the catch in the form of ribs for manufacturing purposes, namely to eliminate sink and distortion during moulding.  There were other design solutions available to him, but he chose that one.  The ribs therefore have a definite function and are not purely decorative.  In fact it is difficult to see what surface the ribs would be decorating.  They actually define the catch, they do not decorate it.  If one removed them one would not just have an undecorated part; one would have removed the functioning part.   For all these reasons, therefore, they are not surface decoration.
The DC04 lower hose cuff - commonplace
224.	Once again there is not a lot left notionally to look at in relation to commonplace once the must fit items are excluded, but what there is simply does not qualify.  There is no evidence to support the contrary case.   Qualtex relied on evidence by Mr Fitton that using ribs to define a curved surface was “standard moulding practice”.  This entirely misses the point.  These ribs in this context are not commonplace.
The DC04 lower hose cuff - infringement
225.	The Qualtex DC04 hose assembly contains a cuff which is effectively a replica of the Dyson version.  The article is made exactly to the design of the Dyson article, and those parts in which design right exists are exactly reproduced as well.  In the circumstances there is an infringement within s226.  I do not understand that the contrary would be argued by Qualtex (given aspects in respect of which design right exists).  
The DC04 brush bar
226.	It is admitted that Qualtex have copied the brush bar from this machine.  It sits in the soleplate assembly, and its function is to rotate rapidly and brush the carpet so that the dust enters the soleplate and is drawn up into the airflow and thence into the bin.  It consists of the following parts:
i)	There are end caps which sit in appropriately shaped parts of the soleplate.  Inside them are bearings which enable the brush to rotate against the caps.  
ii)	A metal tube runs between these two end plates.  
iii)	Over the metal tube is formed a plastic twist, or reverse helix, on which brush bristles are mounted.  The helix reverses direction in the centre where there is a disc formed in the plastic.  This disc is there to facilitate manufacture – it helps to support the brush bar in the bristling process.
iv)	Towards one end there is a pulley around which the drive belt fits.  
227.	Although it is the DC04 brush bar that formed the basis of the Qualtex copy, the Dyson design goes back to a brush bar designed for the DC03.  This is important for the purposes of calculating when design right expires.  To make matters more complicated, each of the DC03 and DC04 brushes have different versions.  The versions are as follows:
i)	Original DC03 brush bar.  This was designed in 1997 and had 81 bristle clusters along the bars of the helix.  It was never marketed.   
ii)	The Modified DC03 bar had 53 bristle tufts along the bars of the helix.  This was marketed in January 1998.  It is this bar that contains the elements that have, in effect, been indirectly copied. 
iii)	The DC04 original design.  This was in substance the same as the DC03 (differences are dealt with below) with its 53 tufts.  This was first marketed in February 1999.
iv)	The Modified DC04 brush bar design.  This was marketed in mid-2001.  It was the same as the original design save that it had 80 tufts and not 53.   One of the tufts from the original DC01 design was omitted.  This was the version actually copied by Qualtex.
228.	In those circumstances Dyson claims design right going back to the DC03 design for all relevant aspects other than the bristle pattern, in respect of which it claims from the Modified DC04 design.
The DC04 brush bar  - Originality
229.	I heard evidence from Mr Nighy that he designed the DC03 brush bar with its bristle patterns. He reduced the number of bristles from 81 to 53 to reduce the loading on the clutch.   His evidence clearly supports Dyson’s case that the brush bars were original in the sense of being devised by him and not copied.  The suggestion that the brush bar designs were not original took two forms.  The first was a suggestion in Qualtex’s pleaded case that the Dyson brush was not original over a couple of identified examples of brushes in other machines, one called the Eureka bar.  This aspect was not really pursued in cross-examination, and not pursued at all in Qualtex’s written final submissions.  While there was some limited evidence that Mr James Dyson himself had been interested in some other brushes, and there was some equivocal evidence as to the extent to which Mr Nighy looked at competing products, there was absolutely no evidence of copying from a previous design of brush, and I find that the DC03 brush bar design (leaving aside the bristling pattern for the moment) was original.
230.	The other attack on originality came from suggestions that certain ideas in the design came from ABC.  In Qualtex’s final submissions it was said that a number of aspects of design came from Mr Hadfield and others at ABC.  ABC applied bristles to the brush bars.  This required ABC to drill out the holes on the flats of the helixes, and then fix bristles in them.  Since they had considerable expertise in that area, Dyson employees had discussions with them about technical aspects the results of which were fed back into the designs.  Sample brushes were created by ABC for testing by Dyson, and the final brush design was the fruit of this process.   That much is common ground, and I so find.
231.	So far as the giving of advice and the making of suggestions by ABC was concerned, reliance was put on the central disc, on two holes in the plastic (to provide a locating position for bristling), suggestions as to the thickness and constitution of the plastic and one or two other suggested improvements (mostly unparticularised).   It was accepted by Mr Nighy that there were discussions, and I am prepared to find that the suggestion for the central disc did come from ABC (Mr Webber).  Other things may have been suggested too.  However, none of this makes the final design unoriginal.  The suggestion of the disc was a suggestion of an idea, not the preparation of a preceding design. Accordingly, this evidence does not mean that Mr Nighy’s designs were not original for the purposes of design right under the Act, and I find they were.  
232.	There was a separate (though factually related) point in relation to the bristling patterns.  In his witness statement Mr Hadfield said in terms that the bristle pattern for the DC03 (the 81 bristle pattern) was devised by him.  He did not believe that Dyson initially supplied a bristle pattern for this, but merely sent the new moulding and asked ABC to bristle it.  He would have drawn up the diagram to bristle the bar by hand or programme the bristling machine accordingly.  Mr Nighy did not accept this.  He said that the general pattern of activity as between the two companies was that Dyson would send sample bars down with bristling patterns attached, and that ABC would then bristle and return them.  He denied that Mr Hadfield actually devised the bristle pattern.  In cross-examination Mr Hadfield agreed that description of how things operated.  Having heard that evidence, I think that Mr Hadfield is overstating the case.  I think it likely that the 81 bristle pattern emerged after a period of trial and testing.  Mr Hadfield might have given advice which led to the pattern being devised, tested and adopted (short of marketing) but there is no evidence from which I can conclude that he designed it first and Dyson employees copied it.  I think it was ultimately a Dyson design.  Mr Arnold urged on me the manner in which an earlier brush roll, the DC01 brush, was developed.  This is a different style of brush bar, and is not in issue in these proceedings.  I did not get any assistance from the circumstances of the design of that particular part and the function of ABC in that respect (which was again a matter of dispute). 
233.	I therefore reject this attack on originality too.  The DC03 bristle pattern was original, as was the design of the rest of the brush bar.  I should record that Mr Hadfield certainly did not claim to have designed the DC03 53 bristle pattern – he was most disparaging about it.  However, nothing turns on that.
234.	So far I have dealt with the bristling on the DC03 brush bar even though it is the DC04 bar that has been copied by Qualtex.  The DC04 brush pattern is essentially the same as the DC03 pattern.  One tuft has been taken out – a tuft on the central disc.  There is one additional difference in that an outer tuft that was angled outwards has had this angle removed.  Mr Nighy told me in cross-examination that the design for the DC04 bar was the “optimum” design for the DC03, a description which his witness statement gives to the 81 tuft pattern.  The conclusion that I draw from this is that the DC04 pattern was not original over the DC03 pattern – it is in essence a copy.  This means that as with the other features of the brush bar, design right dates from the DC03 bar (which is original in this respect) and not the DC04 bar.
The DC04 brush bar  - must fit
235.	Certain aspects are admitted as must fit.  I record them in the schedule.  Essentially they are the end caps and fittings, aspects of the pulley, and straight parts of the helix to allow for the position of the rug strips on the cradle.  Mr Jupp also concedes the overall length of the brush bar but I do not consider that to be a feature within the meaning of the section.  
236.	In its final speech Qualtex sought to take a new must fit point.  It sought to submit that all the parts of the brush bar were must fit because they were designed to be an integral part of the entire cleaner head, relying on evidence from Mr Nighy to the effect that the brush bar was designed to be an integral part of a complete drive system – without it the system will not work.  I do not propose to allow this point to be taken because it was new in the final speech and probably a bit of opportunism.  However, in any event it seems to be completely flawed as a legal proposition.  To say it is part of a system is to say nothing relevant for the purposes of the must fit provision.  The whole thing is not something that enables it to be placed in another article so that it (or the other) may perform its function in any sense apart from an unhelpfully generalised one.  The end caps (to take an example) fall within the description, but not the whole thing.  To say that it is designed to form part of a whole system is to say no more than that the design of the brush bar is intended to make sure that it performs its own job properly.  Were it otherwise then many internal parts of many products which are intended to function internally would fall within the exception, which would be a very surprising proposition.  The objections to this suggestion become clearer when one considers the case sought to be made in relation to some specific aspects.
237.	Turning to those aspects, Qualtex rely first on the shape of the flange.   This was not relied on in the pleadings or in Mr Hadfield’s expert evidence.  I do not think that it is open to Qualtex to rely on it now.  However, once again I will deal with it because it is apparent to me that it is a bad point.  The flange is relied on in Qualtex’s final speech because “[it] was designed to support a reverse helix bristle pattern”.  It was intended to allow the bristles to operate against the carpet without vibration.  Mr Arnold also relied on evidence from Mr Jupp to the effect that something was needed to anchor the bristles; and it had to be a reverse helix bar to support a reverse helix bristle pattern.  The fallacy in the argument is apparent from the formulation that I have quoted.  If one imagines bristles in the precise helical pattern in this case somehow floating in mid-air, and requiring something to fix it, then the flange bar would be one way of capturing it and taming it.  That, however, is nothing to do with the statutory “must fit” test.  The test applies when one article is shaped so as to enable a fit with another.  The bristle pattern is not such an article; it is a pattern.   The bristles have a function – brushing the carpet – and the pattern may enhance it.   But that does not make the pattern the article for the purposes of section 213(3)(b)(i).  Nor does the existence of a flange, as opposed to some other configuration (such as a cylinder in which the pattern is fixed), “enable” the bristles (or indeed the pattern) to perform its function.  This submission cannot be brought within the section.
238.	Next in relation to the non-agreed items is the flanges on the belt pulley.  In cross-examination Mr Jupp accepted in evidence that the inner faces of these co-operated with matching flanges on the soleplate cradle to keep dirt out.  I find that that fact brings the inner faces of those flanges within the must fit exception – they enable the brush to fit in the cradle so that it may perform its function.  
239.	The next disputed item is the central disc.  It is not necessary for the function of the brush as a brush.  It is required purely for manufacturing purposes.  According to Mr Nighy, it supports the brush when the bristles are being inserted, and it can be used to check alignment when the cleaner is assembled.  Mr Hadfield explained that during bristling it sat in a V-shaped support on the bristling machine.  Mr Carr accepted that the disc fell within the wording of the section if one treated the bristling machine as being the other article for the purposes of the application of the section – the disc was there to enable the brush bar to be placed on or in the machine so that the machine could perform its function.  However, he disputed that the section applied to features which were there for manufacturing purposes rather than for the purposes of the machine when used.  I think that he is entitled to rely on that distinction and that the disc falls outside the exception.  The statutory provision is in my view looking at the situation of the article in its primary use, not at the stage of manufacture.   It is a brush which is intended to be used in a vacuum cleaner, not an article which is intended to be bristled in a bristling machine.  It is this stage that one looks at to see what its functions, or what the functions of a mating object, are.   That is the context in which the statute is envisaging these exceptions operating, not the prior manufacturing stage.  I therefore find that this disc is not must fit.  I add that the use to check alignment was not relied on by Qualtex.
240.	On each flange on each side of the central disc there is a point at which there is a gap in the bristles and at that point the helix briefly stops its twist and changes angle for a short stretch (about three bristle tufts in length) so that the flange is parallel to the central axis before resuming its twist.  This gap coincides with the position of the rug strips on the bottom of the cradle.  The bristle is omitted because if there were a bristle in this position it would act against the strip and not the carpet.   This portion of the helix is relied on separately as a must fit item.  Qualtex’s final speech erroneously records that there was a concession to this effect by Dyson.  I cannot trace any such concession.  Mr Jupp was asked to accept, and did accept, that the gap in the bristles was there to prevent interference with the rug strip.  He was not asked about any “enabling” features of the change in direction.  Mr Hadfield accepted that a mere gap in the bristles would achieve this purpose, and that the change in direction of the helix was to achieve a continuous pattern of bristle contact with the floor which would create an uneven sweeping pattern and the possibility of resonance.  In doing so he was agreeing with the evidence of Mr Nighy to this effect.  On this footing it is clear that this feature of the brush bar is not a must fit item.  It does not enable the brush bar to be placed against the rug strips; it goes well beyond that and enables a full sweeping pattern notwithstanding a gap in the bristles at that point of the helix.  It is therefore not covered by must fit.  
241.	The next point requires some further explanation of the construction of the brush bar.  The central outer plastic core has a cylindrical metal tube running within it and bonded to it.  Within that, and with a slight clearance, there is a metal tube.  There is a bearing at each end of the brush bar which enables the metal/plastic core to rotate around this tube – the bearing is within the end of the metal core and surrounds the inner metal tube.  Qualtex claims must fit in relation to (a) the inner metal tube (but not the tube), (b) the bearings and (c) the cylindrical outer plastic portions which cover the bearings at each end.  Taking each in turn:
i)	Mr Hadfield’s report claimed must fit for the plastic centre of the bar which is moulded over the tube rather than the tube itself.  Looking at the tube, it is not easy to fit it within the wording of the section, but there is a good case for saying that the inner face of the plastic and the outer face of the tube are features which (when in contact with each other) enable the inner tube to add rigidity to the bar, so it falls within must fit.  I would observe, however, that at this level of detail or abstraction the debate is getting a bit rarified and the practical consequences are not at all apparent.  This is probably why this was not an evidentially significant part of the case (in terms of the amount of evidence devoted to it).
ii)	The bearings are clearly designed to fit around one article and inside another to allow rotational movement.  That is what bearings of this kind do.  If it matters at all, these bearings are within the exception.
iii)	I do not consider the outer shape of plastic (cylindrical in cross-section), just inboard of the end caps and in which the bearings sit, are covered by must fit.  They do not enable the bearings (or anything else) to perform their function.  They merely cover that which would otherwise be uncovered.
242.	Qualtex next relied on the reverse helix shape of the flange which is said to provide more space for air flow within the cleaning head than a rounded shape, and to act as an impeller to drive air towards the suction head.  There was some debate in the evidence as to the extent to which there was a real or useful impeller effect, but that is beside the point.  This is another point not relied on in the pleadings or the expert reports, and so again does not arise, but yet again it is sufficiently clearly an erroneous point that I can express my conclusions on it.  The short answer to the point is that the “shape” (whatever that might mean for these purposes) does not enable the brush to be placed in another article so that either may perform its function.  It is a shape which was adopted for its beneficial effects (assuming that it has them), but not for the purposes of a fit with anything else.  This is really another aspect of the “one system” point which I have dealt with above.  It may be that it works well as part of a system, but that does not get the “shape” within the wording of the section.  
243.	The bristle patterns are said to be excluded because they enable the brush bar to sweep the carpet and to perform correctly in the “integrated drive system” (to quote from Qualtex’s final submissions).  The formulation of this submission was some considerable distance away from the statutory words, and further deliberation does not get it any closer.  While it is true at one level to say that the bristle patterns enable the brush bar to sweep the carpet, one could also say the same substituting the words “whole cleaner” for brush bar (or even “human user”).  It is not the test.  The test is whether the bristles, or pattern, are a feature which enables the brush bar to be placed against (or in or around) some other article so that it, or the other article, can perform its function.  The bristles (or pattern) do not fulfil this requirement.  The function of the brush bar is to carry bristles and rotate them at high speed.  The bristles (or their pattern) are not an enabling feature; they are the beneficiaries of the process.   While it is true that pattern, length and other features affect efficiency, that is irrelevant for these purposes.  Qualtex cannot bring itself within the wording of the section in this respect.  The “integrated drive system” point has been dealt with above.  I therefore reject this submission of Qualtex.  It was also suggested by Mr Hadfield that the bristles are must fit because they are of a length that enables them just to reach the floor and “flick” the carpet.   I am not sure what “feature” is being relied on here – the bristles themselves or their length - but whatever it is I do not think that it comes within the wording of the section.  One cannot carry out any substitutional word changes within the section to produce anything which makes any real sense in this respect.  I reject this suggestion too.
DC04 brush bar - commonplace
244.	It follows from the above that in considering commonplace I have to consider most of the brush bar – not much of it is excluded by must fit.  Mr Hadfield said that he did not think that the brush bar as a whole was commonplace but sought to say that a flat bar, rather than a roller bar (ie a cylindrical shape) was a commonplace design.  The closest he got to supporting a case of commonplace was that he thought the Dyson brush bar was like one called the Eureka, which he thought (though not from personal experience) was sold in the UK.  This is weak evidence to support a commonplace case.  I am confident I can rely on his assessment that overall the design is not commonplace.  If one takes out the excluded items, what one is left with is still most of the overall design, and it is still not commonplace.  
245.	Qualtex also ran a commonplace argument in relation to the reverse helix bristle pattern.  It was said by Mr Hadfield that the particular bristle pattern in this case (the reverse helix) was one of a number of commonplace bristle arrangements.  Mr Jupp was unable to accept or deny this.   It may well be that various shapes or ideas are commonplace, but it is not to those matters that the commonplace test has to be applied.  It has to be applied to the Dyson manifestation of the idea – to the particular design in question.  There was no evidence that this particular design, with its proportions, bristle tuft sizes and bristle spacing, was commonplace, and I find it was not.  Dyson do not claim design right in the idea of a reverse helix bristle pattern (and indeed they could not do so in the light of section 213(3)(a)); they claim design right in their particular design which uses that idea.   Previous deployments of helical patterns are not sufficient to make it commonplace.   
DC04 brush bar - infringement
246.	It follows that in reproducing their replica bar, Qualtex have infringed Dyson’s design right in its DC03 brush bar design.  Qualtex first marketed one with 61 bristles, but replaced it with one with 80 bristles from December 2003.  The former infringes in respect of everything protected save for the bristle spacing and design.  The latter infringes in respect of that too.
Large brush tool 
247.	This is exactly what its name suggests it is – a large brush which fits on the end of a wand handle or tool adaptor; see the photograph.  The head part rotates against the tubular part thus enabling it to be used at a variety of angles.
Large brush tool - originality
248.	The brush was designed by Mr Thomas Ford in 1996, who gave evidence to me.  He said that an existing DC01 brush tool was his starting point but the thrust of his evidence was that he designed it without copying.   I find that he did.  The fact that he took another brush as the starting point of his design does not make his design unoriginal because it does not necessarily connote copying.  Nor does the fact that his brush, like the earlier brush, had two rows of bristles.  It was not suggested that he had copied anything, and I find he had not.  He denied considering any competitor’s brush, and I accept that too.  
249.	There was an additional dispute as to originality in the bristle pattern.  Dyson’s evidence, given by Mr Ford, was that Dyson sent over various patterns to be bristled as samples before deciding on the final bristle design.  The samples were then considered, and the final design was decided on.  In answers to me he said that the final design was dictated as much by aesthetics as anything else – whether it looked as though it would do the job.  ABC and Mr Hadfield had some input in suggesting such things as bristle material.  Mr Hadfield claimed to have devised the bristle pattern himself and produced a drawing which he had faxed to Mr Ford on 27th October 1997 which sets out detailed positions and dimensions for the bristle positions.  Dyson disputes that he devised it.  Basing itself on Mr Hadfield’s evidence, Qualtex denies that the bristle pattern was original to Dyson.  On this point I prefer Mr Ford’s general account.  I find that various bristle patterns were proposed, and I do not doubt that Mr Hadfield had some significant input into the thinking of Dyson on those patterns because he was an expert and he would doubtless have suggestions to make.  I think that it is likely that the pattern emerged as a result of trials and as a result of suggestions from Mr Hadfield, and its precise history cannot be ascertained from the evidence before me, but he did not design it himself in such a way that its adoption by Dyson would mean that they copied something designed by someone else so that their design was not original in this respect.  The drawing to which I have just referred was, on the evidence, the drawing which Mr Hadfield created in order to set up the bristling machines, and he was sending it to his customer for the customer’s purposes.  It was not some sort of original design which Dyson then copied.  
250.	I therefore find that the design for the large brush tool was original.
Large brush tool - must fit
251.	The tube part of the brush, which connects the brush head with the hose or handle end of the machine, is accepted as must fit as are the connecting features on the head and tube.  
252.	This tool was supplied with, inter alia, the DC04 machine.  When so supplied it is stored on the top of the cyclone part of the machine where there is a recess which is designed to accommodate the tube part.  The machine is so designed that, when the head is rotated against the tube so that it is at an angle, the tube fits in the recess and what is in that orientation the bottom and the side of the head fit fairly snugly in a continuation of the groove and against the side of the machine.  A rib on the machine is positioned so as to fit in the gap between the end of the head and the next adjacent rib.  This method of storage is peculiar to the DC04.  On other machines there is either no storage for it or it is stored on the machine in a way which does not involve the head engaging with any part of the machine.  Based on this Mr Jupp accepts (and therefore Dyson accepts) that the shape of the tool head, insofar as it touches in this interface, is excluded by must fit.  He also accepts that the groove between the rib and the endpiece of the head is excluded because it accepts the rib on the DC04 machine.  I am not at all sure that I would have accepted that those aspects were must fit had it not been for this concession, but I have enough to decide in this case without revisiting areas which are conceded and I will not do so.  However, Qualtex’s arguments take this further.  Based on what Dyson concedes is must fit in this respect, Qualtex argued that the rest of the head fell within must fit “for reasons of symmetry”.  I do not accept this – symmetry is no part of the must fit test – it simply does not come close to the wording of the statute.   Qualtex also submitted that the rib and end part, which between them constituted the last groove on the head (or the first, depending on where one starts counting – I have started from the tube end) were excluded because they constituted the groove into which the storing rib fitted.  I do not accept this either.  Even if the groove is must fit, the particular shapes of the parts which constitute that groove are not within the wording of the section.  They do not themselves, as a whole, enable the brush to be placed against the machine so that either the machine or the brush can perform their respective functions.  The groove might do that and in the light of the concession I am prepared to find that it does, but nothing beyond that is within the concession or the statute.  
253.	Last under this exception, Qualtex argued that the rim of the head was excluded because it was a feature which enabled the bristles to be anchored in the head.  It had to be of sufficient width and depth to anchor them.   It is obviously true that, given certain bristles, if they are to be anchored in the head of a plastic brush, then the part in which they are fixed has to be wide and deep enough to accommodate them.  That is almost a truism.  However, it does not get Qualtex anywhere useful in this part of the debate.  For something to fall within the must fit exception it must be a “feature … which enables the article to be connected [etc]”.  To talk of aspects such as width and depth of an anchoring feature does not describe a “feature” for these purposes.  It describes attributes of a feature.  Attributes are not within the exception; features are.  This particular head is a particular shape, which includes the attributes of its dimensions.   There is nothing about this shape, as a feature, which falls within the statutory provision and it is not alleged that it does so – it was not alleged that this shape falls within it.  Accordingly this aspect of Qualtex’s case fails too.
Large brush tool - must match
254.	Qualtex alleged that the ribbing was must match because it formed a visual link with the ribbing on the DC01 wand handle, with which it was to be supplied.  As I have said above (more than once), a visual link is not enough.  I reject this submission.
Large brush tool - surface decoration
255.	The same points arise here as arose in relation to the ribbing on other tools, and I make the same finding against Qualtex in this respect.  These ribs decorate no surface; they are part of the shape and configuration of the article itself.
Large brush tool - commonplace
256.	It was said that this brush was commonplace because it was an oval brush with staggered rows of bristles and an angled head.  Brushes with those features were commonplace, and some were referred to.  Other than being brushes with those features, they do not look like the Dyson brush and do not render it commonplace.  I reject this submission.
Large brush tool - infringement
257.	It is not disputed that Qualtex copied the Dyson brush.  I find that this infringes so far as it copies the head save for the parts of the head conceded as must fit as referred to above.
The DC02 wand handle
258.	This is a curved piece which fits on to the end of the hose on a DC02 machine, and on to the other end of which there is fitted a metal wand (ie a tube) to the far end of which tools are fitted by the user.  A photograph appears in the Annexe.  Working from the hose (wider) end, it comprises the following parts: 
i)	A swivel, which fits on to the hose.
ii)	A plastic clip, which is an almost complete tapered hoop, which fixes the swivel on to the wand handle.
iii)	The body of the handle itself.
iv)	A bleed valve underneath the handle which is sprung against the user.  If the user wishes to allow air to enter into the handle he or she presses the one end of the valve, most naturally with a finger in the same manner as a trigger is pressed or pulled.  That depresses the finger end, which causes the other end to move away from the handle and admit air through the gap which is then created.  Inside the valve there is a seal and a spring which do not feature in this case.
259.	I shall take the items separately, though not in the above order, but will first deal with a general must match point taken by Qualtex in relation to the whole wand handle assembly.  I also record that there is no originality point taken in relation to this handle.  I was provided with evidence of the design of this handle from which I am quite satisfied as to its originality (as opposed to its having been copied from somewhere – I still have to deal with some commonplace points).  
Must match – the whole DC02 wand handle assembly
260.	Qualtex make a must match case for excluding the whole of this wand handle from design right on the same basis as it makes a similar claim in relation to the DC01 wand handle.  It was said that the handle contributed to the overall shape and appearance of the vacuum cleaner, and Qualtex relied on some evidence as to the contribution that it made.  It accepted, however, that this contribution was to a lesser extent than the contribution made by the DC01 handle to its own machine.   In this respect it relied on answers from Dyson witnesses, extracted in cross-examination, about the difference that a different handle would make to the machine.  Mr Jupp accepted that a particular substitute handle (actually sold by Qualtex for this purpose) had a “dramatic” effect on the appearance of the machine as a whole “inasmuch as one of the major components of the machine has changed considerably”.
261.	I have reached the same conclusion in respect of this submission as I reached in relation to the similar submission made in respect of the DC01 wand handle.  Of course the machine would look different with a different handle, but that does not go far enough to make it must match.    This handle is not in the same category as car body panels (to take the familiar example again) for the same reasons as the DC01 handle, and this conclusion is even clearer in the case of this part because (as Qualtex conceded) this handle made a lesser contribution to the appearance of the machine as a whole.  It is irrelevant that the particular substitute handle commented on by Mr Jupp is said to have a “dramatic” effect on the appearance of the machine, because it does not follow that any substitute handle would have that effect.  If the degree of design dependency which I have held to be necessary is to exist so as to bring the overall design of the handle within the must match exception, then it would need to be the case that any alternative design would make the overall article (the machine) look radically different.  The fact that one particular replacement has that effect (which is not what Mr Jupp actually said, in fact) does not mean that any other design would have the same effect.  In any event, the terms of Mr Jupp’s acceptance  is not the same as the test which seems to me to be applicable.  
262.	Furthermore, in the case of this part, there is some evidence from consumers which goes to cross-checking by reference to customer views.  A substitute non-replica part is available for this handle, and Qualtex offered it for sale.  More than that, it managed to sell it.   (It is in fact the part that Mr Jupp referred to in the evidence just referred to).  It is in essence an angled tapered tube with an appropriate diameter for the wand at one end and a fitting for the hose on the other.  On top is a sliding bleed valve which would probably be operated by the user’s thumb.  It is made of a grey plastic which is a completely different shade from the Dyson part.  I was shown some purchase and sales figures for the period during which this part was sold by Qualtex as a replacement for the DC02 wand handle (1998 to 2003).  Sales stopped when a replica part became available, and an order for the non-replica part was actually cancelled at that point (demonstrating that there was still some anticipated demand).  The figures were part of a confidential exhibit, and it is unnecessary for me to set them out here (or in any confidential annex to this judgment) but it is sufficient to observe that in all but one of those years the sales were significant (in the hundreds) and their level demonstrates that there was customer demand for this definitely non-replica part.  This is all the more so because these sales took place at a time when the machine was quite old and when one have expected the numbers of working machines (and therefore the demand for spares) to be falling and to be less than it would have been in previous years.   Accordingly, if the test (or cross-check) for dependency is that a substitute product cannot be sold, then there is no dependency.  If the level of customer demand is an indication of a commensurate lack of dependency, then there is no design dependency here.  Accordingly this general must match point fails in relation to this part.  A Mr Laybourne and a Mr Smith, both involved in the trade, gave some evidence about customer preference, but it did not demonstrate that a non-replica part would be unsaleable (though it supported a customer preference for replica items, which is insufficient for this purpose).  Their evidence did not gainsay the clear impression given by Mr Hulme’s evidence of sales.  
The various constituent parts of the DC02 wand handle
263.	It is now necessary to separate out the constituent parts of the handle (identified above) in order to consider the various points that arise in relation to each of them.
The wand handle
264.	I do not need to describe this further other than to say that it is the main handle minus the bleed valve, swivel and swivel clip.
DC02 wand handle - must fit
265.	There is no material dispute as to this.   By the end of the evidence there was common ground as to the parts which are within this exception – they are recorded in the relevant schedule at the end of this judgment.  I should also record that some of Dyson’s concessions again appeared to me to be debatable, but again I have not considered the merits of the concession.  
DC02 wand handle - must match
266.	At the sides of the shape which accommodates the bleed valve are two areas of ribbing.  These are relied on as must match features because they achieve a visual link with ribbing elsewhere, and because the evidence of Mr Knox (the designer) indicated that Mr Dyson wanted a high tech, engineered, aeronautical look and the ribbing was one of the ways in which this was achieved.  Mr Jupp observed that the visual link was debatable, though Mr Knox said that that was his intention.   The visual link, or its strength, might be thought to be debatable on the facts, particularly  bearing in mind that the ribbing is different in its nature, but in any event that somewhat amorphous concept is not sufficient to bring in the must match exception – see above.   Reliance was placed on the sides of the ribbed portion which are said to follow (as they do in part) the contour of the bleed valve; but this again does not create design dependency.  It does not bring this part of the feature within the wording of the section (and it is not even a true description so far as the rearward portion of the valve is concerned – when depressed its depressed position does not match the contour of the edge of the handle).  Last, it was said that the external surface of the bulged part of the handle “corresponds quite closely” with the swivel so as form “a harmonious whole when the swivel is attached”.  This is a hopeless point.  The very wording (“quite closely”) suggests how far away it is from the statutory test, which is a very long way indeed.
DC02 wand handle - surface decoration
267.	The ribs on the sides of the handle adjacent to the bleed valve are not uniformly flat in cross-section; they have a curved profile.  Mr Knox explained that that was in order to produce a surface that appeared to be rounded.  Mr Dyson wanted a rounded effect without increasing the thickness of the plastic in that area by creating a continuous rounded curve.  The ribs are designed to produce the impression of roundedness without that solidity.  Mr Jupp, from the position of an expert designer but who did not actually design it, commented that the ribbing created a new shape which appeared more substantial.  Mr Arnold relied on this evidence as material which clearly made the ribbing surface decoration.  I disagree.   I think that it clearly demonstrates the opposite.  The ribs are not there to decorate the surface which is underneath.  They are there to give a new overall shape to that part of the item which is not the shape of the item minus the ribbing.  That makes it more than surface decoration, in my view, and I so find.
DC02 wand handle - commonplace
268.	Qualtex’s case on this was that if one excluded the must fit, must match and surface decoration matters, then what one was left with was a banana shaped curve which was commonplace, and in this respect it produced two curved handles which were said to demonstrate this.  Since I have not excluded any items on a must match basis, what is left is far from commonplace, and not particularly like the examples given.  This submission therefore fails; there is nothing commonplace about the handle.  The position would actually be the same if the alleged must match items were excluded.  There would still be a shape with flat sides, and a bulge at or towards each end which is not a commonplace shape at all, on the evidence presented to me.
DC02 wand handle - bleed valve
269.	When removed this comprises two external curves, against one of which the user presses a finger to rotate the valve around two spigots.  This pivots the other end away from its resting position and allows air into the tube above in order to reduce suction at the tool end (for example, to stop a piece of fabric “sticking” to the tool end).  
DC02 wand handle bleed valve - must fit
270.	The only dispute on must fit in relation to this part relates to the curved outer surfaces of the valve.  The rearward concave portion is designed to accommodate the user’s trigger finger.  It is said by Qualtex that this is must fit not because the shape has to accommodate the finger, but because it is shaped so that, when depressed, the finger part aligns against the corresponding profile on adjacent edge of the handle.  The forward convex portion is said by Qualtex to fit into the corresponding profile in the handle when at rest.   I record that Qualtex did not rely on the finger as a counterpart must fit item for the purposes of the section.  
271.	I do not think that either aspect of this valve falls within must fit.  The point on the rear portion fails on the facts.  When the valve is depressed by the user, it does not actually depress sufficiently to enable it to lie flush with the sides of the handle, or so that the arc of the profile of the one lies exactly in line with the arc of the profile of the other. The valve stands slightly proud; and to my eye the two arcs have different radii anyway.  That was Mr Jupp’s view, and I consider that he is right.  It also fails conceptually because even if they were the same arc and even if they lay exactly in line when the valve was depressed, I do not think that this was a particular feature which enabled the connection, or placing against (or any relevant statutory conjunction with) the handle.  It would be a design feature, but not enabling in a relevant way for the section.   Again, this accords with Mr Jupp’s evidence, which I accept.
272.	This latter point also provides the answer to the submission in relation to the front portion.   In this area the arc of the valve is the same as the arc of the adjacent side of the handle, so that when the valve is at rest the two arcs are in alignment.  That is true as a matter of fact.  However, this feature is not enabling within the words of the section.   It happens to be the case, and is no doubt designed deliberately that way.  However, it does not enable the valve (or this part of it) to be placed in or against, or connected to, the handle so that either can perform its function.  It is irrelevant to the interface between the two parts.
DC02 wand handle bleed valve - must match
273.	Qualtex allege that the convex and concave surfaces of this part follow the profiles of the adjacent edges of the handle, and that therefore these features are must match.  Apart from the fact that again the submission fails on the facts in relation to the finger part, I do not begin to see how this falls within the wording of the section with its basis in design dependency.  Qualtex’s skeleton argument does not begin to deal with this as a matter of reasoning (and in fact rather gives half the game away by acknowledging that in the case of the finger portion the following of the surfaces only happens “approximately” – that is not a promising start to a must match argument of this nature).  This submission fails.
DC02 wand handle bleed valve - commonplace
274.	Since I have not excluded the outer surfaces on any basis, such arguments as Qualtex have on commonplace fail.   This design of bleed valve is certainly not commonplace on the evidence that I saw.  Mr Hulme relied on a sprung bleed valve on “a small range of Hoover models in the past” of which several thousand models would have been sold in the UK.  I doubt if this would have made even something closer to the Hoover design commonplace, but in any event the Hoover design is not sufficiently like the Dyson design to render the latter commonplace.  The other evidence of Mr Hulme did not advance his case any further.  I reject the submission that this valve is commonplace.
DC02 wand handle swivel
275.	This is the end portion which connects to the hose.  It is held in place by the retaining clip which engages with a groove in the end of the swivel and thus holds it on while allowing it to rotate.   In order that the hose be held in place it is fitted into the end of the swivel and two lugs engage in two correspondingly shaped holes in the sides of the swivel.  There is a scallop in the surface of the swivel extending forward from each of the holes towards the body of the handle. 

DC02 wand handle swivel  - must fit 
276.	There is no dispute in this area.
DC02 wand handle swivel  - must  match
277.	It is alleged by Qualtex that the general shape of the swivel and the scallops (or depressions) “correspond to” equivalent shapes at the other end of the hose.  This is true but not enough.  It may be good or thoughtful design but it is not a feature which depends on those corresponding features for the purposes of the section.  The same applies to the alleged correspondence of the swivel to the bulge at the end of the handle.  I do not think that it does correspond in any material sense, but if it does that is not enough to make the one depend on the other for the purposes of the section.  There are therefore no must match features.
DC02 wand handle swivel  - commonplace
278.	Qualtex said that if the parts which it says should be excluded were excluded, then this part was commonplace.  If the relevant must fit parts are excluded then not much is left.  There is an outer shape of the visible part of the swivel, the scallops and some internal webbing which supports an internal wall up inside the swivel at the point at which the diameter of the tube formation is decreased as it enters the connecting male part of the swivel.   The webbing comprises a number of partial radii which join the inner wall to the outer.  It is said that this describes a common tube with some webbing, which itself is a common feature of plastic tubes.
279.	For once I think that this submission comes close.  When the must fit items are excluded what is left is little more than a tube with an angled end.  However, it still has the scallops and the internal webbing.  Both Mr Jupp and Mr Hulme agreed that tubes with webbing in were common, because webbing is a common way of supporting an internal wall, but Mr Jupp said that this particular webbing was not.  In the end I agree with Mr Jupp – what is left is not commonplace, but only just.  The scallops are certainly not common, and therefore a tube bearing them cannot be commonplace.
The wand swivel retaining clip
280.	This is a C-shaped clip which fits into a similarly matching recess on the handle.  There are three lugs on the underside – one at each end and a longer one in the middle.  These poke through holes in the handle and fit into a groove on the male end of the swivel which lies within the handle directly underneath the clip, thus preventing the swivel from falling off.  

The wand swivel retaining clip  - must fit
281.	There appears to be no dispute here.
The wand swivel retaining clip - must match
282.	The clip lies flush with the handle when in place.  This is said to give rise to the must match exception.  I do not accept this.  The flush fitting is not required by the design of the handle; it is not dependent on it.  It could, for example, be slightly proud or even slightly recessed.  Which of those is chosen does not depend on the design of the handle.  This was the thrust of Mr Jupp’s evidence on the point, and I accept it (it is in fact obvious anyway).
The wand swivel retaining clip  - commonplace
283.	Most of the features of this clip are excluded by must fit.  What is left is an upper surface of a C-clip.  Mr Knox accepted that the use of C clips was conventional in 1995, though not in a vacuum cleaner application.  For once I think that this submission succeeds.  When one looks to see what is left one has the surface of a C-clip used as a retaining clip to join two tubes.  That, in my view of the evidence, is commonplace even though there was no demonstrated use in the realms of vacuum cleaner tubes.  Vacuum cleaner tubes are still tubes.
DC02 wand handle  - infringement
284.	Once again there is no dispute but that copying took place.  The copying was of a substantial part of the design and was therefore an infringement in relation to everything except the clip.
The DC02 - One outstanding issue
285.	In its final submissions Qualtex took a pleading point.  The wand handles which featured in the debate in court (and those copied by Qualtex) all had a feature which did not figure on the drawings by reference to which the claim was pleaded.  This feature was a lip added to the underside of the handle immediately adjacent to the finger portion of the bleed valve.  It was apparently intended to provide an obstacle to the finger of the user sliding unintended on to the finger portion – in order to depress the valve the user would have to take the adjacent finger off the handle, move it over the valve and then press.  It was added some time after the initial production of the DC02  - it matters not when for these purposes.  I think that the argument is that this feature is not technically pleaded as having been copied because the drawing of the relevant article annexed to the pleading, and by reference to which infringement has been alleged, did not show it.  This point is a tribute to the attention to detail which was paid to this case by the defendant’s team.  It is not, however, consonant with the common sense disposition of complex and detailed modern litigation.   It looks like what is pejoratively called a “pure pleading point”.  Whether that is so or not, the claimant claims to have been disadvantaged by the late stage at which this point is taken and would wish to amend to bring the case into line with the manner in which the case was actually conducted (if I have understood the point correctly).  If this point is persisted in I shall deal with it further on the occasion of the handing down of this judgment (or at some later appropriate stage).   At the moment I cannot believe that anything significant turns on it.
DC05 wand handle
286.	The DC05 is a similar style of machine to the DC02 in that it adopts the same general format as opposed to the upright stance of the DC01 and its successors.  Like the DC02 it has a flexible tube which connects to a wand handle which in turn connects to a wand or tube to which the tool is fixed.  The wand handle is for practical purposes the same as the wand handle for the DC02 apart from a collar and catch at the tube/wand end.  This feature is apparent from the photograph.   The catch is mounted on the collar, and is sprung in its “down” position so that when in that position a lip under the catch engages with a matching feature on the end of the wand in order to hold the wand on to the end of the wand handle.  When the user wishes to remove the wand he or she presses on the catch in the region of the collar, and it pivots about a couple of spigots, the other end goes “up” and the wand is released.  The catch is mounted on the collar; that is the collar’s purpose (to provide that mount).
287.	Dyson’s design right case is confined to the collar and catch.  The remainder of the wand handle is not original over the DC02 wand handle.  No originality point arises in relation to those two features.  I need not deal with Qualtex’s submissions which go to repudiate design right in any parts other than those two parts.  I shall, in line with the general approach, take those two parts (catch and collar) separately.
 DC05 wand handle catch - must fit
288.	The only part of the catch as to which there was an issue was the upper surface of the catch.  Qualtex claimed that the rear part was must fit because when the catch was depressed by the user it “approximately aligns” with the included surface of the collar.  The quoted wording comes from Mr Arnold’s written submissions.  The word “approximately” gives the game away.  It is there because there is no full alignment, as appeared during the cross-examination of Mr Jupp on the point.  Qualtex’s original point seems to have been that the rear surface of the catch (where the thumb went) was in line with the adjacent surface of the collar when depressed so that one got a comfortable fit when the catch was depressed.  The alignment was disproved on the facts – when depressed the catch it still stands slightly proud, and Mr Jupp said that was deliberately so.  So the original thesis went, and “approximately” seems to have come in.  Unfortunately for Qualtex, there is no exception of “approximately must fit”.  A feature either “enables” for the purposes of the section or it does not.  This one does not – the shape does not enable the rear of the catch to be placed against the collar in any way which is significant for these purposes.  In his expert’s report Mr Hulme sought to rely on the thumb/catch interface as making the catch must fit in this respect, but since Mr Arnold disclaimed reliance on this sort of interface I need not deal with that point.  
289.	Must fit was claimed for the front surface by Mr Hulme in his report, but no claim was made in Mr Arnold’s final submissions for this surface.  I cannot see how it can be – the top surface does not have to be its, or any particular, shape to enable it to be placed on or against any other article (or in any other juxtaposition relevant to the section).
DC05 wand handle - Must match
290.	Qualtex relied on two aspects of the catch.  First, that it matched, and was aligned with, a similar catch at the bottom of the wand, and second that the surfaces of the catch aligned with aspects of the collar and the wand itself.
291.	In order to deal with this point it is necessary to describe yet another part, namely the wand which fits on to the handle.  The basic construction is two brushed metal tubes, one of which slides in and out of the other so as to give the wand varying length.  At the point of the join there is a plastic locking feature, about which I need say no more than that.  At the wand end there is a plastic feature which receives the end of the wand handle, and there is a shaped feature which receives the catch which I have been dealing with above.  It has a raised perimeter which matches the shape of the end of the catch, and a notch underneath which receives the lip under the catch so that the catch holds the wand in place.  At the other (tool) end there is another nozzle, (fashioned in plastic) on to which the tool fits, and there is a catch on that nozzle which is identical in shape to the catch on the wand handle and which engages with the tool in a similar way in which the catch on the handle engages with the top of the wand.  Mr Jupp told me, and I accept, that the catches are probably fashioned from the same mould.   The two catches are in line if one looks down the length of the wand.
292.	Qualtex claims that the identical shape and apparently deliberate alignment gives rise to the must match exception for the shape of the handle catch.  While it is apparently thoughtful design, I do not think that this brings the catch within the must match exception.   I do not consider the design of the shape of the wand handle catch to be dependent on the design of the wand catch within the wording of the section.  They are linked, but not dependent.  Applying the approach that I have identified above to this section, the catch does not fall within it.
293.	Nor does the allegedly chosen alignment of the catch with aspects of the collar on the wand end bring the shape of the top of the catch within the exception.  On the facts the alignment is only approximate.  The rear part of the catch (the part pressed with the thumb) sits in a similarly shaped aspect of the collar  (whose shape at this point is conceded as must fit).  It normally stands proud of that part of the collar.  When pressed, the rear surface of the catch does not go down far enough for it to be aligned with the top of the collar in the sense that it is flush with it.  It in fact stands proud (see above).  The same applies to the other end of the catch when the catch is holding the wand.  When the wand is in place at the end of the handle the end of the catch fits within a matching shaped feature on the wand (which makes the edge shape of the catch must fit, as to which there is no dispute), and it is lifted clear of it when the other end of the catch is depressed to release the wand.  When the catch is within this feature it still stands proud of the matching feature on the wand end, not flush, and stands proud in varying degrees depending on which part of the catch one is looking at.  There is no way that I can see that the design of the top of the catch is dependent on the design of this part of the wand as required by the section.  This submission of Qualtex therefore fails.  Once again this submission gives the game away by using the word “approximately” in relation to the allegation of alignment.
DC05 wand handle catch - commonplace
294.	Large parts of this catch are excluded by must fit (see the schedule at the end of this judgment).  In essence, only the shape above the levels of the collar and the matching feature on the wand are outside this exception.  Qualtex submits that what is left is visually insignificant, or alternatively commonplace.  I do not consider that it is either, and there was no evidence to support it.  The shapes and alignment of the two surfaces is visually significant – they might have been different shapes, or the angle of the one to the other might have been different, giving a distinct visual difference.  In addition, the height of the catch might have been different, again giving a different visual appearance.  So far as commonplace is concerned, the particular design and configuration is not shown to have been commonplace by the evidence, or anything else.  Mr Hulme’s assertion that it was depended on excluding all he said that should be excluded, which included the top shape of the catch.  If, as I have held, that shape should not be excluded then his assertion falls.  (If Mr Hulme’s case that the top  surface should be excluded had been then there is hardly anything left to which commonplace could have been applied – his application of the exceptions would, in combination, have applied to the whole of the catch.)
DC05 wand handle collar
295.	The collar consists of a circular band with a semi-circular or D-shaped hole underneath which receives a matching proud shape on the nozzle of the wand handle.  This combination of hole and shape, together with some friction, holds the collar in place.   (It is not clear whether there is a fixing feature on top of the collar as well, but nothing turns on that.)  The purpose of the collar is to hold the catch which I have been referring to above.  When the wand or extension tube is in place, its end face abuts the forward face of the collar.  On the top of the collar there is a raised C-section, which accommodates the rear part of the catch.  This section has a rearwards-angled back face, and (where the curve of the handle leaves room) a vertical face down to the circumference of the nozzle end of the wand handle.  
DC05 wand handle collar - must fit
296.	As before, I shall deal here only with the disputed areas.  Agreed areas of must fit are recorded in a schedule to this judgment.
297.	The inner circular face of the collar is accepted by Dyson as must fit (it interfaces with the nozzle end of the wand handle).  The D-shaped hole underneath was not in terms accepted as must fit by Dyson, but Mr Jupp all but accepted it in his cross-examination, and so far as necessary I find that it is must fit because it enables the matching feature on the handle to perform its function of retaining the collar. 
298.	There is a dispute as to the angled or inclined surface which lies behind the catch.  It is said to be must fit because it enables the catch to be comfortably depressed by the user’s thumb.  Apart from being inconsistent with Mr Arnold’s disclaimer of a finger (or thumb) being half of a must fit argument, this point fails on the facts.  When the catch is depressed the thumb does not naturally lie along the inclined surface – it may touch part of it (depending on how fleshy the thumb is) but no more.  In my judgment the thumb-catch combination would still work in the same unimpeded way were the rear surface vertical or horizontal.  The slope is not a feature which enables the thumb to perform its function.  I therefore reject this submission.
DC05 wand handle collar - must match
299.	Three elements are said to fall within the must match provisions:
i)	It is said that the collar is similar to, but not identical to, what is described as a collar on the wand or extension tube.  I am not sure which bit of the wand is being referred to here, which of itself means that there is a problem about similarity because it is not obvious.  Whatever the part is, the necessary design dependency is simply not there.
ii)	The “approximate” alignment between the inclined rear surface and the depressed catch is relied on.  This does not come close to creating the necessary dependency.
iii)	The ring part is said to align with the corresponding part on the wand or extension tube.  If by the “corresponding part” Qualtex means the plastic end into which the wand handle is inserted then it is true that it aligns with the collar, but it is a mystery to me as to how this is said to make the collar a must match feature.
DC05 wand handle collar - commonplace
300.	Qualtex submits that if one removes all that it says should be removed under the other exceptions to design right then what is left is commonplace.  If they were right in the other removals then all one would be left with would be a plastic O-ring with a shape to accommodate the fit at the top, and they might be right about that.  However, one is in fact left with a plastic O-ring with a distinct sloped shape at the upper point, and that is not in my view commonplace.  There was no evidence to suggest it was.
DC05 wand handle  - infringement
301.	Since there is no issue as to copying, there can be no issue as to infringement.
PART 5 – COMMENCEMENT OF DESIGN RIGHT IN CERTAIN OF THE PARTS
Duration – commencement of design right
302.	This point arises because there are disputes as to when the 10 year design right period in section 216(1)(b) commences in respect of some of the parts.  These disputes are both factual and legal – I have to make some findings of fact and I have to interpret the section and its application to the parts in question.  The relevant words of the section are set out above.  The question in each case is when “articles made to the design are made available for sale”.
DC01  
303.	The facts in relation to this machine are as follows.  
304.	Prototypes for the DC01 were made in 1992.  It was accepted by Dyson that orders for this machine were actually taken in 1992.  By the end of December orders for at least 380 machines had been received.  There was evidence that there were very serious discussions about further significant orders before the end of 1992.   This level of interest is described in a contemporaneous memorandum as “trade commitment”, and it relates to at least 1200 machines, but it is not described as orders and there is no firm evidence that any more than 380 machines were actually ordered before the end of the year.   In order to get these orders, and this level of interest, some machine must have been shown to potential purchasers, and I find that the prototype was.  For these purposes the design of the prototype (then known as the DA0001) was the same as that of what was later called the DC01; Mr Carr accepted there was no material difference.  However, no machines were delivered until, at the earliest, 12th January 1993.   BEAB approval was still being sought in December 1992, without which the machines could not be sold.  It is unlikely that substantial production would have started without that approval (though it is clear that Dyson must have been all but ready to start in December).   Looking at the available evidence on the matter I find that production machines were not produced until January 1993 – probably around the 6th January, but the precise date in January does not matter.  The first delivery took place in January 1993 and it comprised 440 machines delivered to GUS (probably comprising an initial delivery of 48 machines on about 12th January with the balance following later, though again those details do not matter).
305.	The position is therefore this.  Actual production machines were not actually available (or even made) until after 1st January 1993.  However, something was shown to interested parties before that date, and orders were clearly solicited and, to a limited extent, actually obtained, before 31st December 1992.  These must have been obtained by showing the customers a prototype.  
306.	Qualtex say that in this state of affairs, “articles made to the design were made available for sale” before 1st January 1992 because orders amount to making articles available for sale even if production had not started.  Mr Arnold submitted that making an article available for sale can occur if articles to be made to the design are offered or exposed for sale without prior manufacture, but he also relied on the fact that some samples were available to show customers.  Dyson says that the prototypes were not for sale, or available for sale, and that articles were not made available for sale until production started in January 1993.  Pre-production orders do not fall within the section.  At the point of production (but not before) real articles were genuinely available for sale; until then they were not.
307.	This (like so many other questions concerning the statute which I have had to consider) is not an easy point, but in the end I consider Mr Carr’s case to be correct.  There is apparently no known authority on the point, and no known authority on the meaning of “made available for sale”, which is the key wording in the paragraph.  I agree with Mr Arnold that the paragraph is aimed at firing the starting gun at the point at which commercial exploitation starts, but I do not think that that takes the debate any further.  The question is:  what is that point?  One could make a logical case for saying that in the context of the Act commercial exploitation starts when articles are offered for sale, whether manufactured or not; and one could make a case for saying that it starts when articles are offered having been made, or when they are first made after an offer.  In other words, each side’s case is logically arguable.  So I go back to the actual words used.  I consider that the natural meaning of the expression “made available” connotes something that is actually in existence.  If one imagines a case of an offer of goods which have yet to be made (in the sense that none of them are yet made) then I would not consider that those goods are “available” for sale even if advance orders for them are taken.   Taking orders for them is not making them available.  This is a common feature of today’s technology market.   To take a modern example, the recently launched Apple mini-Ipod was heavily trailed in advance of sellers actually having any to sell (at least in this country), and orders were taken.  I think that those who placed advance orders and who had to wait some weeks or even months to get their product might be a little surprised to be told that the product had been made available for sale when the product was announced and when first orders were taken.  I do not consider that it is natural to say that a seller can make something available for sale when there is nothing there to sell.   This conclusion is not affected by the existence of prototypes or samples.   Any such prototypes or samples (on the evidence before me) were definitely not available for sale – they were examples of what would, in due course, be available for sale.  
308.	Applying that reasoning to the present case, I find that despite the advance orders taken in 1992, and despite the fact that a prototype was shown to intending purchasers (which for these purposes can be treated as an article made to the design), none was made available for sale until production started in January 1993.  The prototype was just that – a prototype, and not something actually offered for sale, and there were no production models at the time which were offered (or available, to use the more relevant word).  The facts of taking orders and having a made up machine available (I cannot avoid the word) for demonstration do not mean that articles are made available for sale within the meaning of the section.  
309.	Accordingly in the case of DC01 products in respect of which design right is claimed arising out of the first design of the product, the ten year period runs from the end of 1993; that is to say it expired at the end of 2003.
DC02
310.	The evidence of Dyson was that the first retail sale of a DC02 took place in March 1995.  There is no evidence of any sale at any date earlier than that, nor (if it matters) is there any positive evidence of any offer to any person earlier than that date.  Qualtex sought to push the date on which this product was first made available for sale back into 1994 by a process of inference.  It relied on the fact that in January 1995 Mr Dyson held a press launch of the DC02, and a photograph of that occasion showed 7 or 8 machines.  Qualtex sought to work back from that to 1994 by asking me to find that on the balance of probabilities there will have been sales to mail order catalogue companies because bearing in mind the way those companies worked (it was suggested they needed to be able to prepare their catalogues some months in advance of their being made available, and then had to make sure they had product available when the catalogues went out), then there must have been advance sales in 1994.  
311.	I do not consider that I can make those findings.  There was no evidence from any mail order company about this, and such evidence as there was came from Dyson witnesses who were cross-examined about it (Mr Gammack and Mr Jupp).   Their evidence on how these things worked was of some value as to general practice, but not nearly enough to enable to me draw conclusions as to how things actually worked in this case.  The farthest Mr Jupp was able to go was that it “may be” the case that in the case of the DC02 there were advance sales but there were risks in making such sales which might have meant that there were none.   When it was suggested to him that the photographs of the press launch meant that production must have started, he said that one could not necessarily draw that conclusion at all.  There is no documentary evidence of any sales before March 1995, and certainly none that support a suggestion of sales in 1994.  The suggestions to the contrary are mere speculation.
312.	Accordingly, on the facts there is nothing to support any suggestion that the DC02 was made available for sale before the beginning of March 1995, and certainly not before the beginning of January 1995 (there is no practical difference between these two dates bearing in mind the wording of the statute and its reliance on calendar years).  This conclusion would apply even if I had accepted Qualtex’s case that the date of orders was the material date.  Accordingly I find that articles made to the DC02 design were first made available for sale in 1995.
DC03
313.	There are certain primary facts about this model as to which there is no present dispute.  Production of the DC03 started on 9th December 1997, when the first production model was made.  There is no evidence of what orders were placed, or what marketing took place, and the first available invoice is one to Argos dated 8th January 1998 showing a despatch date of the same date.  No evidence was given by Dyson to explain how this invoice came about and when the order might have been placed.  Mr Jupp did not know the time lag between order and invoice.  In the circumstances it is difficult to say whether an order was placed before or after 1st January 1998.  Since the capability of adducing more evidence on this point lies with Dyson, who could have adduced evidence of likely lead times, their general practice and so on, all of which might have helped, I would not be minded to draw inferences in Dyson’s favour on this.  If one assumes it is unlikely that an order was placed on the same day as the despatch, then the period between 1st January and 7th January 1998 is only 4 working days, which is a short period of time.  On a balance of probabilities, and bearing in mind my disinclination to make inferences in Dyson’s favour on this, I find that it is more likely that an order was placed before then.   There is no evidence to suggest that the first production models were not intended for sale, so a combination of the more likely date of ordering, and the fact that models for sale were made before the year end, means articles made to the DC03 design were made available for sale before the end of 1997, and I so find.
DC04
314.	The evidence demonstrated that the first DC04 was manufactured on 6th January 1999 and the earliest sales invoice bore a despatch date of 18th February 1999.  Once again there is no evidence as to when that order was placed.  However, in the light of my view as to the meaning of the relevant statutory expression, that does not matter.  Articles made to the design cannot have been made available for sale before the date on which production started, which was a date in 1999.  Accordingly, even if there were orders taken in 1998, that does not assist Qualtex’s case, which is that the relevant year is 1998, not 1999.  This is still the case even if, which is likely, there were pre-production tooling samples would have been in existence in 1998.  Those samples were not available for sale.  I would add that, on the evidence in relation to the DC04, I cannot and would not conclude that any orders were taken before the beginning of 1999.  The evidence is too thin for that, even allowing for the fact that Dyson might have been able and expected to flesh out the evidence a little more.  
PART 6 – PARTICULAR GENERAL DEFENCES
Acquiescence and estoppel
315.	Insofar as Qualtex might otherwise be found liable for infringing design right, it runs an acquiescence or estoppel defence.  Qualtex avers that Dyson knew of the production of the first of its pattern parts which are the subject of this action (the DC01 hose assembly introduced in April 1998, the DC01 tool adaptor introduced in June 1999 and the soleplate assembly also introduced in June 1999) a matter of weeks after each was introduced.  Notwithstanding its knowledge, Dyson took no steps in respect of those first parts and stood by and allowed Qualtex to promote and sell those parts.  Furthermore, when no action was taken, Qualtex expanded its range and introduced other parts and for that purpose it incurred tooling costs.   These included parts which are in addition to the parts which are the subject of this action.  The dates of the introduction of those parts relevant to this action are as follows:
DC04 hose assembly – June 2001
DC04 brush roll – February 2002
DC07 stair tool – October 2002
Large brush tool – October 2002
DC01 wand handle – November 2002
DC02 wand handle – September 2003
DC05 wand handle – January 2004

Qualtex says that this sequence of events, and some alleged detriment to which I will come, makes it inequitable for Dyson to assert its rights now.

316.	I shall elaborate on the facts underlying the arguments in due course.  However, it is first useful to get the law out of the way.  There was little dispute about it.
317.	Qualtex’s starting point in the argument was the decision of Oliver J in Taylor’s Fashions v Liverpool Victoria Trustees [1982] 1 QB 133.  At 151H, having considered the authorities, Oliver J observed: 
“Furthermore the more recent cases indicate, in my judgment, that the application of the Ramsden v. Dyson, L.R. 1 H.L. 129 principle – whether you call it proprietary estoppel, estoppel by acquiescence or estoppel by encouragement is really immaterial – it requires a very much broader approach which is directed rather at ascertaining whether, in particular individual circumstances, it would be unconscionable for a party to be permitted to deny that which, knowingly or unknowingly, he has allowed or encouraged another to assume to his detriment than to inquiring whether the circumstances can be fitted within the confines of some preconceived formula serving as a universal yardstick for every form of unconscionable behaviour.”
318.	Qualtex went on to concede that some form of detriment is required, but that the inquiry as to the relevant detriment is a broad one.  It relied on what Walker LJ said in Gillett v Holt [2001] Cg 210 at 232:
“The overwhelming weight of authority shows that detriment is required.  But the authorities show that it is not a narrow or technical concept.  The detriment need not consist of the expenditure of money or other quantifiable financial detriment, so long as it is something substantial.  The requirement must be approached as part of a broad inquiry as to whether the repudiation of an assurance is or is not unconscionable in all the circumstances.”
319.	There was no dispute about the principles described in that sort of approach, but there was some sort of dispute as to how the court should approach a case of standing by.  Dyson relied on what was said in this respect in Farmer’s Build at page 487 where Mummery LJ said:
“As a matter of law the judge was wrong to hold that standing by and taking no steps to pursue a claim for infringement of unregistered design right made it unconscionable for Farmers Build to claim an account of profits or an inquiry as to damages: see Electrolux Ltd v Electrix Ltd (1953) 71 RPC 23 at 34.
320.	Based on that, Dyson says that mere silence is not sufficient; the party claiming the estoppel must have been induced to believe that the wrong was assented to.  Qualtex sought to counter this by saying that it did not go so far as to say that acquiescence or silence is never enough; it can be enough if the circumstances are such that it would be unconscionable for the relief to be granted, or for the silent party to insist on its rights.  This is significant on the facts of this case because the facts do not demonstrate any overt acts of encouragement on the part of Dyson.  It can be described (on Qualtex’s own case) as being one of merely standing by.  
321.	In dealing with this point one needs to put Mummery LJ’s remarks in their full context.  If one reads what precedes his statement it is quite clear that he approached the matter by considering whether what happened amounted to encouragement.   He points out (at p 487 line 4):
“The pleaded case and the evidence did not establish any reliance by Carier on any representation or conduct on Farmers Build inducing a reasonable belief in Carier that the design rights did not exist or would not be enforced, so as to prevent Farmers Build from enforcing their legal rights within the limitation period.”
Then, at line 9: 
“There was no evidence to support the judge’s conclusion that Farmers Build had in any way encouraged Carier to continue to put time and money into developing their business in the belief that Farmers Build had decided not to pursue a claim for infringement of design right.  There is no evidence that Farmers Build had lulled Carier into a false sense of security or into thinking that Farmers Build had abandoned any intention to pursue a claim against them.”
322.	At at line 20:
 “Farmers Build had twice intimated to Carier their belief that Carier were infringing their unregistered design right, but Farmers Build had not created any expectation that Carier would not be sued and Carier had not relied on any expectation.”
323.	Those remarks formed the backdrop to the passage relied on by Dyson.  What they show is that Mummery LJ was distinguishing a case of mere standing by without more (which would not give rise to an estoppel) from one in which there was the initial element of encouragement, or the creation of expectations, which can.  It is hard to see why, as a matter of principle, mere acquiescence or inaction on the part of a right owner (even if with knowledge of rights) should make it inequitable to insist on enforcement of rights in the future.  However, if encouragement or the creation of expectation is added, then the picture changes.  
324.	I shall therefore consider the facts in order to ascertain whether Dyson, knowing what Qualtex were doing, stood by and thereby encouraged Qualtex to carry on or thereby created expectations as to its (Dyson’s) future conduct and attitude in such a way and to such an extent as to make it inequitable for Dyson to insist on its legal rights now.
325.	I have already pointed out that some spare parts for Dyson machines have been sold without any objection from Dyson – filters, drive belts and the brush roll for the DC01 machine are examples (though Mr Hulme thought that in recent times Dyson started to object to the last of these).  Dyson’s part distributors are two companies called Electrue and Washvac.  As well as dealing in Dyson manufactured parts, they also dealt in pattern parts made by third party manufacturers.  They distributed both sorts of parts to other dealers.  Mr Hulme thought that he and the pattern industry generally were entitled to produce replica pattern spares, but he knew that Dyson was litigious and thought that Dyson would or might sue even if they had no grounds.  Accordingly, he says he decided to launch some parts, including the DC01 hose assembly in April 1998 and the DC01 tool adaptor in 1999, to see if Dyson would retaliate – “to test the water”, to use the phrase that he himself used.  Dyson did nothing.  He took Dyson’s silence as being an acceptance that they, like the other manufacturers, accepted that replica pattern parts could be lawfully produced.  He therefore launched the other parts in the period from June 2001 (DC04 hose assembly) and November 2002 (DC01 wand handle).  The last two parts that he introduced were the DC02 wand handle (September 2003) and DC05 wand handle (January 2004).   There is some equivocation as to when instructions were given to the toolmaker for the DC05 wand handle.  Qualtex’s pleaded case was that it was in about May 2003, which is after Dyson’s first complaint in a letter before action dated 7th April 2003.  In evidence Mr Hulme resiled from that and thought it was about March 2003.  The cost of the tooling for these parts was not significant – less than “a few thousand pounds” according to Mr Hulme.  He claims that it would now be unfair for Dyson to complain partly because he has suffered detriment in relation to his later tooling costs, but principally because had Dyson complained when the first products were launched he would have had the opportunity (which he said he would have taken) of withdrawing at that point and not exposing himself and the whole pattern spares market to the risk of adverse findings of principle (of the kind that I have determined above) that would make it more difficult for the market to carry on making duplicate spares.  It is part of his case that Dyson knew about the launch of the earlier parts shortly after they were in fact launched.  
326.	In order for his case on acquiescence to get off the ground Mr Hulme must show that Dyson knew of the early parts that he introduced shortly after he launched them.  Absent such knowledge he cannot make out any case of acquiescence or estoppel at all, since knowledge is an essential ingredient of this part of the case.   Dyson’s case is that it did not know of the relevant competing parts until 2002.  It knew about, and accepted, the pattern parts trade in such matters as filters, belts and the DC01 brush roll, but did not know about any of the parts which are the subject of this action until the time just mentioned.  There is a dispute of fact in relation to this which I have to resolve.  
327.	Mr Hulme had no direct evidence of Dyson’s knowledge at this early stage, but he invited me to infer it from the evidence given by people in the trade that it was likely that the parts would have been drawn to Dyson’s attention via their main distributors within weeks of their launch.  Mr Frank Smith has been involved in the spares business for 30 years.  His evidence was that there was no secret about the Qualtex parts and they appeared in various flyers sent out to his customers.  He had no doubt that they would have shown the flyers to Washvac and Electrue to try to get a better deal on Dyson original parts, and those two latter companies would be likely to have relayed the information to Dyson to get it to reduce its prices.   Mr David Coombes, a consultant in the industry, expressed similar surprise that Dyson did not know earlier because the vacuum industry, particularly in relation to spare parts,  is a close knit industry and in his view as soon as a new spare part appears on the market the rest of the industry knows about it.  He too said that Electrue and Washvac would have urged Dyson to reduce its prices once the Qualtex parts came on the market.  Mr Colin Beech now works for a domestic wholesaler but until 1995 or 1996 he worked for Electrue.   He gave evidence of how it was that, in normal practice, new pattern products would be drawn to the attention of the relevant OEM in an attempt to get price reductions, and he explained how Electrue would have gone about that process.  Thus Mr Hulme’s evidence is very indirect – it is based on how the market works rather than what happened in this particular case, and I am asked to infer that it worked in that way so far as his first two parts were concerned so as to give Dyson sufficient knowledge from which I can begin to infer acquiescence.  He did not produce any direct evidence from Electrue or Washvac.  He had attempted to get some third party disclosure from that quarter very shortly before the trial commenced, but he failed.
328.	Dyson’s evidence was that it did not know about the relevant Qualtex parts until probably 2002.  Mr Christopher O’Connor was the supply chain director from August 2001 until May 2002, when he became UK sales director.  He left the business in 2004.  (He was never a director in the company law sense.)  In about May 2002 he carried out a review of the position in relation to sales and accessories and in the course of that he had a meeting with Electrue in which various pattern parts were shown, and after which Electrue produced a list of Qualtex parts.  The market was then analysed and a report on spares was produced in July 2002.  Attention was diverted by various other pressing business needs and pattern parts were raised at a meeting of 18th September 2002, which involved lawyers.  Mr Peter Richardson is now the Chief Operating Officer of Dyson, and had become managing director in January 2001.  Prior to that he had been General Manager, Floorcare (June 2000 until January 2001), Group Sales director (August 1998 to June 2000) and UK sales director (October 1997 to August 1998).   He had had overall responsibility for sales since October 1997.  Until June 2000 he had direct responsibility for the UK sales team, and from June 2000 the UK sales directors reported to him.   He explained that during the period up to at least 2000 Dyson’s focus was on producing machines rather than spares, and there was no real focus on spares until 2001 when a Mr Mark Mason was given responsibility for sales of spares and accessories.  By this time this area had been identified as having potential for growth and in 2001 there was put in train a process to investigate the market in accessories and spare parts.  He could not recall when he first knew that Qualtex was producing pattern spares, but he recalled being shown a document in the latter part of 2002 which demonstrated that fact. Mr Jupp remembers being shown a copy DC01 soleplate towards the end of 2001 but could not remember who it was made by or whether it was fixed or floating.  He did not know about the Qualtex parts which are the subject of these proceedings until the latter part of 2002.  There is no document disclosed in the action that puts the date of discovery of what was happening any earlier than 2002.  The first communication explicitly on the subject was a letter before action dated 7th April 2003.
329.	Having considered the evidence of the relevant individuals carefully, I find that no-one in a relevant senior role in Dyson knew about the Qualtex parts that are relevant to this action before 2002.  I accept the evidence of the Dyson witnesses that a review of the business, which led to a focussing on spare parts, took place at that time, and that in that context they were made aware of the emerging Qualtex parts (other than filters, belts and the DC01 brush bar which had been on the market for years and which Dyson will have known about and to which it did not object).  The size of the business was not such that it would necessarily have been drawn to senior management’s attention until then, and Dyson’s business focuses were different, which may help to explain why they did not realise until then.   If the Qualtex hypothesis was right, then Electrue and Washvac would have communicated the existence of new Qualtex parts to their account manager.  From 1997 until June 2000 that account manager reported to Mr Richardson.  In that period Qualtex launched 3 parts – the DC01 hose assembly, the DC01 tool adaptor, the DC01 soleplate assembly.  Had the distributor raised a serious question about Qualtex parts it would have been raised with Mr Richardson.  It is clear from Mr Richardson’s evidence that no such matter was raised with him, and equally clear that he did not pass any such matter on up the line (to the commercial director, to whom he reported).   Accordingly, any discussions that there were between the distributors and Dyson were at account manager level, and they stayed there.   I accept that there may have been some limited communication at the account manager level, but so far as it was, that is where it stayed.  For reasons that will appear hereafter, that is not sufficient to give rise to the estoppel relied on.
330.	Next is the requirement for some element of encouragement.  There are no acts which have been proved which are capable of amounting to any level of encouragement.  Dyson did nothing because senior management knew nothing until 2002.  Mr Hulme has nothing except possible knowledge at a low level, followed by certain knowledge at a higher level in 2002, but knowledge by itself is not enough.  For the reasons that appear below, he was not entitled to treat this as encouragement or anything like that.  
331.	If an estoppel is to arise, it must be demonstrated that the knowledge and the relevant acts of encouragement took place at an appropriate corporate level.  It would not suffice to show that some lowly representative knew of the Qualtex parts.  As a matter of principle Qualtex cannot rely on knowledge on the part of, and encouragement by, someone who would not be of an appropriate seniority to bind Dyson in this respect.  The sort of things that Mr Hulme alleges he should be allowed to do would be the sort of things that would require decisions at a high level – certainly above account manager level.  It is clear from my findings of fact that there was no actual knowledge or actual encouragement at senior level, and there is no reason for Mr Hulme to have supposed that there was an apparent knowledge or encouragement either.  That is for this reason.  Mr Hulme says that he wanted to test the water.  He therefore put the parts out in the market, and in doing so incurred tooling costs of several tens of thousands of pounds.  He was asked why he went about it this way, instead of writing to Dyson and telling them what he planned to do in advance and (in effect) invite them to try to stop him.  The evidence clearly showed that he had participated in vigorous correspondence with Dyson in the past over different parts, and that he was prepared to argue his corner extremely firmly.  His answer to that was that he “did not want to prod the giant awake”, and that he wanted to put some product out in the market, but not too loudly.  He commented that if he had written to Mr Dyson or the CEO, that would draw attention by the written word to what he was doing, and that that was quite different from one of their distributors dropping an item in front of a Dyson representative and drawing attention to what Qualtex was doing.  What he was in fact doing in this part of his evidence is demonstrating some equivocation as to the level at which he wanted to draw attention to what he was doing.  He admitted that the natural reaction of Dyson would have been to have tried to stop the trade straightaway, had he written to Dyson, and that was why he did not do it.  If he deliberately chooses a mechanism for doing all this which stops short of unequivocally drawing the facts to the attention of those with the appropriate seniority then he cannot be heard to say that he was justified in believing that senior management knew and approved of it all when in fact they did not.  He took the risk of their not hearing about what was going on, and they did not.   Accordingly, on the facts there was no knowledge or acts which might otherwise be encouragement at any sufficiently senior level, and Mr Hulme cannot properly be taken to have assumed that there was.  
332.	That is sufficient to deal with the estoppel argument, but there are additional points which are just as severe obstacles.
333.	First, I am not satisfied on the evidence that, had Dyson complained about the first articles that Mr Hulme produced, he would have backed off and stopped producing them.  His allegation that he has been deprived of this opportunity was an important part of his estoppel case, but in order to succeed he must satisfy me that he has acted to his detriment in not taking that course.  That involves him satisfying me that he would have taken it.  I am not so satisfied.  He had spent £30,000 or £40,000 on tooling, and that would have been wasted.  He held, and still holds, firm views as to Qualtex’s entitlement to produce the parts which he has produced hitherto, and in cross-examination he acknowledged the bad message that would have gone out to the rest of the industry if he had backed off.  I think it unlikely he would have backed off.  I think that he would have carried on and made Dyson sue him.  I have reached this clear conclusion having heard how he gave his evidence on the point in the witness box, but it is borne out by what happened after he received the letter before action on 7th April 2003.  He told me that he thought that that letter was a try on and Dyson were not serious and would not go through with any objection (which is at odds with what he said about his knowledge of Dyson’s litigious propensities).  If that was his view in 2003, it would have been his view 3 or 4 years earlier.  Production of the DC02 and DC05 wand handles was started in June and August 2003 respectively, which is after these proceedings were commenced.  The latter was not sold until January 2004.  So Mr Hulme carried on manufacturing in the face of the present action.  That clearly indicates to me that  Mr Hulme would have stood and fought whenever it was that Dyson chose to take him on.
334.	Second, Mr Hulme’s estoppel claim might be described as an attempt to establish a new mutation which could not unfairly be described as estoppel by entrapment.  In the usual form of estoppel, the person claiming the benefit of the estoppel has embarked on a course of conduct which he or she believes to be justified vis-à-vis the other party and without believing the other party will object.  He does not embark on it knowing that it would be thought by the other side to be unjustified or believing that the other side might not consider it justified, or having significant doubts about its justification.   That person is, to that extent, innocent.  Mr Hulme’s position was different.  He probably believed that he was entitled to do what he was doing, but in my view he knew there was a significant risk he was not and, more importantly, he believed that Dyson might well take a different view of the matter.  He admitted as much in cross-examination. That is why he introduced three parts (including one which is not the subject of this action and two that are) to “test the water” – that is his phrase, which he used in his main factual witness statement.  You only test the water if you believe it might not be the right temperature, and Mr Hulme had that state of mind.   Mr Hulme embarked on his course of conduct knowing that he might not be entitled to do it, knowing that Dyson might well not approve and knowing that Dyson might well take steps to stop him.   Furthermore, and more importantly, he knew about the law of estoppel and consciously hoped to be able to take advantage or it.  He had been involved in previous litigation against Hoover (referred to above - Hoover plc v George Hulme (Stockport) Ltd (1982) FSR 565) in which his company had won on an acquiescence point.  He admitted in cross-examination that he knew something about the law of acquiescence or estoppel and the following exchange then occurred:
“Q.  You thought you knew something about acquiescence? 
A.  Indeed.
Q.  And you thought that if Dyson ignored you, that would give 
you an acquiescence defence if they later tried to sue you?
A.	That is right.”
As I have already recorded, he deliberately refrained from writing to Dyson to point out what he was about to do.  Instead he embarked on a course of conduct which was consciously designed to create an acquiescence or estoppel defence.  That very fact seems to me to disqualify Qualtex from being able to rely on an estoppel.   Estoppels (other than technical estoppels arising out of litigation) are intended to benefit those who thought that their rights (or legal position) were one thing but where that position or those rights are found to be something else.  They are a means for preventing the unconscionable asserting of the rights of the other person.  Estoppels arise after the event and in the light of the facts.  There is a debate as to the extent to which estoppels can be swords as opposed to shields, but in my view there is no basis on which they can be allowed to arise as a result of a conscious attempt to set one up.  No case was drawn to my attention in which that has occurred, and counsel for Qualtex was unable to show any case in which an estoppel has arisen in which the person claiming the benefit of the estoppel has been aware from the outset that he or she did not have, or might not have, the sort of rights ultimately relied on.  That is not particularly surprising.  Estoppels are intended to protect those with erroneous beliefs in their rights; they are not intended to protect those who know that they may not have those rights.  The latter category of persons have steps they can take in order to make the true position clear, if they need to do so, and there is no reason in logic for those steps to include taking provocative steps in order to see what the other side’s reaction is, and then rely on the other side’s inaction to found an estoppel.   
335.	Third, there is a serious problem over the principal detriment relied on.  Mr Hulme did not rely so much on the cost of tooling as detriment to which he was subjected as a result of Dyson not taking steps to stop him early enough.  This is despite the fact that his pleaded case depended solely on detriment of that nature together with ancillary costs and work.  (In fact, it was rightly conceded in argument that he could not rely on the tooling for the first “testing the water” parts because he was prepared to hazard that.  It would only be tooling for the later parts that could be relied on, but Mr Moody-Stuart, who dealt with the estoppel/acquiescence point, conceded that that was not the real relevant matter of reliance so far as Mr Hulme was concerned, which may explain the lack of clarity on what that tooling cost was.)  His main detriment is said to be that he lost the opportunity to withdraw when challenged and thus keep his powder dry in relation to other pattern parts in the future, and not expose himself to the risk of a judgment which might work to the detriment of his (and others’) pattern trade generally.  In effect he says that had Dyson challenged him at the outset he would have withdrawn in order to preserve some sort of position for the future which did not involve a determination of his rights for the time being – a sort of negotiating position, I suppose, or some sort of opportunity to choose to fight on different territory.  That is a curious form of detriment for estoppel purposes.   What Mr Hulme complains of is having been deprived of the opportunity of leaving his (and Dyson’s) rights surrounded by some sort of obscurity or uncertainty.  The detriment is said to be having a clear determination of his (and Dyson’s) legal position when he would rather have had obscurity or uncertainty.  That is nothing like the sort of detriment for which the law looks in order to see what sort of estoppels arise.  Relevant detriment is irreversible acts done in reliance on a belief that the legal (or factual) position was X, when in fact it turns out that it is Y.  The concept which Mr Hulme must be invoking, which is “I would rather I had not known for certain”, cannot be fitted into that sort of analysis.  The right to remain ignorant is no part of the law of estoppel.  
336.	For those reasons, too, the estoppel and acquiescence defences fail.  I will not dwell on further weaknesses.
PART 7 - REMEDIES
Remedies
337.	Under section 237 of the Act the design right is subject to a compulsory licensing regime in the second 5 year period of the term of the right:
“237(1) Any person is entitled as of right to a licence to do in the last five years of the design right term anything which would otherwise infringe the design right.

(2)  The terms of the licence shall, in default of agreement, be settled by the comptroller.”
It will be apparent from some of the dates given above for the production of the parts that the parts fall into three categories.  First there are parts which are still in the first five years of their design right terms.  Second, there are those which are in their second five year period.  Third there are those in respect of which the 10 year term has now (as at the date of trial) ceased completely.  In respect of the first Dyson seem to me to be entitled to injunctive relief.  In respect of the second and third they would be entitled to monetary relief only.  I will not deal with the precise form of relief here because it was not the subject of any significant debate (other than the point to which I turn next) and if there is a dispute about it I will determine it when the parties have had an opportunity to consider this judgment.
338.	The one issue on which I heard substantive, albeit short, submissions was the issue of additional damages.   Section 229 provides as follows:
“(1) An infringement of design right is actionable by the design right owner.

(2) In an action for infringement of design right all such relief by way of damages, injunctions, accounts or otherwise is available to the plaintiff as is available in respect of the infringement of any other property right.

(3)  The court may in an action for infringement of design right, having regard to all the circumstances and in particular to – 

(a) the flagrancy of the infringement, and 

(b) any benefit accruing to the defendant by reason of the infringement,

award such additional damages as the justice of the case may require.”

339.	Dyson seeks additional damages under subsection (3).  However, it does not seek an award from me.  It is accepted that questions of quantum will have to go off to an inquiry, or some future form of determination, and that it is that inquiry which will determine whether additional damages should be awarded, and if so how much.  It is also common ground that my determinations in relation to the point should be confined to findings which would go to the issue (such as findings of flagrancy), leaving it to the future tribunal to determine the significance of those findings.  This approach is said to be founded in authority.  Since it is common ground that I should adopt it I will not lengthen this judgment by setting out that authority or considering the scope of my inquiry further.  I will turn to the matters urged on me in relation to what are said to be the relevant facts.
340.	I was urged to find that Qualtex’s breach was flagrant.  Dyson alleged that Qualtex set out to copy because it thought that it would make more money that way, and without any attempt to work out what parts were the subject of design right and which were not.  It was capable of creating designs which did not infringe (the DC07 lower hose cuff and the DC04 upper hose cuff containing modifications) but generally chose not to.  While there were minor differences on some of the parts, those differences did not mean that there was no copying.  
341.	For its part Qualtex relied on the bona fides of Mr Hulme and the fact that he honestly believed he was entitled to do what he did.   Others in the industry shared that view, and the position on the law was not clear.  This was the first spare parts case to reach trial, and a legal determination of the points arising was required.  
342.	I confess to finding it unsatisfactory to have to make findings of fact for the purposes of a future inquiry so that they can be used for the purposes of arguments which (presumably) were not fully deployed before me.  There is a risk that I will not have dealt with all the points that might become relevant when full argument takes place, and even that the parties may seek to adduce further evidence of further fact on the points, or rely on points in the evidence before me in respect of which I have not made specific findings.  It was not clear to me that either party was debarring itself from relying on further facts – I rather think that they were not.  In the circumstances I shall largely confine my findings in this respect to matters of fact which one or other of the parties specifically urged on me, adding only matters that have already been the subject of findings in the context of the estoppel/acquiescence part of this judgment. 
343.	I therefore find as follows:
i)	When he decided to manufacture the replica Dyson parts which are the subject of this action, Mr Hulme (who for these purposes is the controlling mind of Qualtex) honestly thought that he was doing something that he was entitled to do.
ii)	Mr Hulme’s thought processes were more general than analytical.  He thought that the Act entitled him to do what he did without necessarily analysing precisely why in relation to each part of each article.  It was apparent to me that many of the attempts to except many facets of the articles were arguments which were conceived for the first time in the context of this case, and they were not articulated (even to himself) by Mr Hulme before then.  
iii)	Some of the arguments put forward (such as many of the “visual link” arguments that I have considered above) were fairly fanciful, and it is hard to consider them as reasonable.  Others, however, were more reasonable – for example, the must match arguments in relation to the two wand handles was not a fanciful argument. 
iv)	Mr Hulme embarked on his conduct with the attitude of a crusader, which attitude probably grew stronger over time.  That does not, however, affect his bona fides.
v)	The very high level of copying was deliberate in the sense that it was fully intentional, and was done because it was easier to copy, because it would produce a more marketable product and because Mr Hulme thought it was something he was entitled to do.  
vi)	No arguments were addressed to me on the full meaning of “flagrant”, and I will make no findings as to whether what Qualtex did was flagrant for the purposes of section 229.  If flagrant means deliberate copying irrespective of belief of entitlement, then what Qualtex did was flagrant.  If it requires an additional element of actual knowledge of wrongfulness then it was not.  If it contains an element of mens rea which would be satisfied by recklessness, then Mr Hulme came close if he did not cross the line in that I find that he was determined to do what he did even though he knew there was a real possibility that it would be held he was not entitled to do it.  He was not prepared to try to clear it with Dyson in advance.
vii)	Mr Hulme sought to contrive a situation in which Dyson was manoeuvred into a situation in which it could not object to what he was doing in a somewhat sly fashion.  I refer to my findings (and indeed his admissions) as to what he set out to do when he produced his first parts in 1998 and 1999 – he hoped to engineer a situation by producing products and seeing what happened in the hope that he could produce an estoppel rather than facing the issue in a more open fashion. 
viii)	Dyson’s ultimate reaction was entirely foreseeable.  
 Beyond that I do not propose to go.
PART 8 - CONCLUSIONS
Conclusions 
344.	I therefore conclude that Qualtex has infringed Dyson’s design rights when it copied each of the parts which are the subject of this action, and that acquiescence or estoppel is no bar to Dyson maintaining this action in respect of that infringement.  I shall hear argument about the appropriate form of relief when the parties have had an opportunity to consider this judgment.

SCHEDULE

Parts agreed by the parties or accepted by their respective experts as being “must fit”

DC01 Main wand handle

•	The spigot carrying the compression spring
•	The stop on the handle which interacts with the stop on the release catch
•	The lower part of the vertical groove which accommodates vertical splines on the body of the machine
•	The sides of the lower part of the main wand handle below the ribbing which fit into the machine
•	The pivot pins around which the release catch pivots
•	The small protrusion on the bottom of the main wand handle which touches the bottom of the socket
•	The inside of the tubular boss which receives the cable winder and the inner pocket with the snap detail
•	The upper half of the cable boss around which the cable is wound?
•	The outer surface of the inner wall of the bulged end of the handle
•	The shape and size of the socket which receives the aluminium tube
•	The inner surface of the bottom of the handle which receives the top of the upper hose cuff.

The release catch

•	The stops on the upper surface which interface with stops on the handle.
•	The holes which receive the pivot pins
•	The spigot which accommodates the spring
•	The protruding catch
•	The inner and outer surfaces of the part of the catch below the protruding lip (but not the shape of the side edges)
•	The holes which accommodate the pivot pins

1992 cable winder

•	The whole of the arrangement of the legs, including their length, the depth of the lips at the end of the leg and the diameter of the winder
•	The minimum dimensions of the inner face of the tab

The 1997 cable winder

•	The recess formed in the cable winder to accommodate the screw head.

______________________________
DC03 Stair Tool Head

•	The shape of the tube and the aspects within it which fit to the head
•	The external profile of the underside of the tool
•	The flat lower surface of the tool

______________________________ 

DC07 Stair tool

•	The shape of the tube, including the features which interface with the head
•	The external profile of the underside of the tool
•	The flat surface of the tool
•	The groove on the exterior of the tube  (it was thought that this could have interfaced with a feature on one of the storage features on the machine.  This turned out to be false, but the concession by Dyson was not abandoned.  It makes little or no difference to these proceedings.)
•	The fitting features which enable the end of the head to fit on to the tube

______________________________ 

DC02 and DC05 wand handles

•	The tube at the end remote from the swivel
•	The interior parts of the handle over which the bleed valve sits
•	The sides of the wand handle bleed valve hole within which the bleed valve lies
•	The front and rear edges of the recess in which the bleed valve lies
•	The pivot pins around which the bleed valve pivots
•	The recess within which the retaining clip fits
•	The holes through which the lugs on the retaining clip pass
•	The interior of the end of the wand handle into which the swivel fits
•	The underside of the bleed valve which seals the bleed hole
•	The outer surface of the sides of the bleed valve which fit within the hole in the handle
•	The male parts of the swivel which fit into the end of the wand handle
•	The groove on those male parts into which the lugs of the retaining clip fit
•	The interior of the end of the swivel which engages with the hose assembly
•	The holes in the end of the swivel which receive lugs on the end of the hose
•	assembly
•	The lugs on the retaining clip which pass through the holes in the handle and engage with the groove in the swivel
•	The sides and inner surface of the retaining clip.

DC01 Soleplate assembly

•	Most of the internal sides of the soleplate including the recesses for pivot pins.
•	The front of the soleplate where it meets the cradle.
•	The attachment point for the rubber band and the rubber band itself.
•	The upper sections of the soleplate where it attaches to the cleaner head.
•	The curved upper surface of the rearwardly-extending portion which co-operates with the drum valve.
•	Two ribs with semi-circular cut out on which turns a spindle.  
•	The channel forming part of the belt-drive cover.
•	The side edges.
•	The flat horizontal edge at the rear of the soleplate.

______________________________ 

DC01 Cradle
•	The sides of the cradle save for the area clear of the sole plate at the bottom.
•	The front edge of the cradle abutting the sole plate.
•	The front and curved rear part of the cradle forming seals with the cleaner head and sole plate respectively.
•	The side parts of the cradle holding the brush roll.
•	The top and bottom surfaces of the rug strips.
•	The flat lower surface of the cradle (including the undersides of the rug strips)

______________________________ 

DC01 Lower Hose cuff.

•	The small diameter collar at the bottom which fits into a socket on the machine.  
•	The two ribs on the rear of the collar.
•	The end faces of the upper collar.
•	The shape and position of the catch which fits into a hole in the machine.
•	The internal details and diameter of the cuff and the screw thread.
•	The top of the flare

______________________________ 

DC01 Tool Adaptor 

•	The whole of the tubes on each side of the central ribbed part.

______________________________ 

DC04 Hose Assembly lower cuff 

•	The shape of the main cylindrical mid section.
•	The shape of the tab defined by five ribs for connecting to the body of the machine, and its position.
•	The rounded portion of the upper collar at the upper edge.  
•	The end faces of the upper collar which abuts the body of the main machine.

______________________________ 

DC03/DC04 Brush Bar

•	The end caps – shape and position.
•	The belt pully.
•	The overall length of the brush bar (this was conceded whether or not it technically falls within the must fit exception).
•	The gaps in the bristle rows which correspond with the position of the rug strips on the cradle.  These allow the brush bar to rotate without the  bristles coming into contact with the rug strips.

______________________________ 

Large Brush tool

•	The whole of the tube section – internal and external, including the connection features.
•	The connecting features at the end of the head which interface with the corresponding features on the tube section.
•	The groove between the rib closest to the bristle and of the tool and the end part of the tool which carries the bristles.
•	The surface of the head which lies against the machine when stored on the top of a DC04 machine.

______________________________ 

DC05 Collar and Catch

1.	Collar:	

•	The inner surface of the ring.
•	The parts of the collar that sit under the catch and which enable the catch to fit onto the collar, including the pivot pins.
•	The semi-circular profile around the rear of the catch which accommodates the rear of the catch.
•	The forward facing surface of the collar (which interfaces with the wand or extension tube).

2.	The catch:

The underneath of the rear part of the catch which enables it to fit with the collar, including holes for the pivot pins. 
The semi-circular rear shape of the catch.  
•	The downward facing protuberance at the front of the catch which interfaces with a hole on the wand or an extension tube.
•	The curved front end of the catch (which fits into a matching feature on the wand or the extension tube).