Point Solutions Ltd v Focus Business Solutions Ltd and Another: ChD 16 Dec 2005

It was claimed that the defendant’s computer software infringed the copyright in software owned by the claimant. A declaration was sought beacause of allegations that assertions about infringement had been made to third parties.
Held: The declaration was refused. There was no explicit provision in copyright law for a declaration of non-infringement as was available in Patent proceedings. A party had to have some sufficient interest to found a request for a declaration. There was no expert evidence before the court as to whether infringement had in fact taken place. Nevertheless sufficient was said to lay doubt as to the provenece of the defendant’s software.


Her Honour Judge Frances Kirkham


[2005] EWHC 3096 (Ch)




Civil Procedure Rules 40.20 C1-001, Patents Act 1977 71


England and Wales


CitedIn re Clay; Clay and Booth CA 1919
A plaintiff is not entitled to a declaration of non-liability where the defendant has neither asserted a contrary right nor made nor formulated an adverse claim. It is oppressive and unjust to subject a defendant to legal proceedings where he has . .
CitedRussian Commercial and Industrial Bank v British Bank of Foreign Trade HL 1921
The court considered how the court should exercise any jurisdiction to make declarations.
Held: The House (Lord Dunedin) referred, with approval, to the approach taken by the Scottish Courts, identifying three propositions, namely that the . .
CitedStephens and Another v Cannon and Another CA 14-Mar-2005
The claimants had purchased land from the defendants. The contract was conditional on a development which did not take place. The master had been presented with very different valuations of the property.
Held: The master was not entitled to . .
CitedLever Faberge Ltd v Colgate Palmolive 2005
In intellectual property cases, the court might be ready to grant a declaration without undertaking the full enquiry which would precede a declaration in other areas of law. . .
CitedGuild v Eskander Ltd 2003
. .
CitedFinancial Services Authority v Rourke ChD 19-Oct-2001
The applicant sought a declaration that the defendant had acted in breach of the Act, in accepting sums by way of deposit, without being authorised, and had made prohibited statements to attract such deposits. Could a civil court make such a finding . .
CitedStoddard International Plc v William Lomas Carpets Ltd ChD 14-Feb-2001
The need for a defendant, accused of copying, to overcome the obstacle created by the similarity of his work with that of the claimant’s, did not remove entirely the claimant’s own obligation to prove his case. As the degree of similarity increased, . .
CitedL’Oreal (UK) Limited and Another v Johnson and Johnson and Another ChD 7-Mar-2000
The claimant appealed against an order striking out their threat action for trade mark infringement, in respect of the words ‘No Tears’ when used for children’s shampoo.
Held: The court had to consider both the letter and the surrounding . .
CitedMessier-Dowty Ltd and Another v Sabena Sa and others ComC 3-Dec-1999
Application by 2 and 3 defendants for an order suspending proceedings in England pending production and consideration of expert report. Whether, pursuant to Supreme Court Act 1981 s. 49(3) and CPR 3.1(2)(f), there were ‘compelling circumstances’ . .
CitedPlastus Kreativ AB v Minnesota Mining and Manufacturing Co 1995
English law regards the rules for obtaining negative declaratory relief as being procedural
Aldous J said: ‘For myself I would not welcome the task of having to decide whether a person had infringed a foreign patent. Although patent actions . .
CitedPatten v Burke Publishing Ltd ChD 1991
The publisher to whom the plaintiff author had sold the rights to his book became insolvent. He sought a declaration that it would be in breach of the contract.
Held: The guiding principle which determines how the discretion is to be exercised . .
CitedFilhol Ltd v Fairfax (Dental Equipment) Ltd 1990
The defendant had lost an action on the design of dental pins used to create foundations for false teeth. He wanted to get onto the market with a product which was designed so as to avoid the construction of the patent claims found by both the High . .
CitedLeco Investments (UK) Ltd v Land Pyrometers CA 1982
The defendant appealed against a striking out of his defence on a claim for copyright infringement.
Held: The appeal succeeded. Leave should have been given. Whether copying was substantial depended in part on quality, which was a matter of . .
CitedMetzger v Department of Social Security 1977
A court’s declaration should constitute only what it has found after proper argument. . .
CitedWallersteiner v Moir CA 1974
The making of a declaration is a judicial act. A shareholder is entitled to bring a derivative action on behalf of the company when it is controlled by persons alleged to have injured the company who refuse to allow the company to sue. It is an . .
CitedAmstrad Consumer Electronics Plc v British Phonographic Industry Limited CA 29-Oct-1985
Amstrad sought a declaration that their retailing of equipment with two cassette decks was not unlawful. A declaration was not granted because Amstrad might be guilty of a criminal offence. However in the absence of any evidence that Amstrad was . .
CitedMessier-Dowty Ltd and Another v Sabena Sa and Others CA 21-Feb-2000
The defendants sought a declaration that they would not be liable in respect of their potential involvement in a pending action. The appellants asserted that such a declaration could not be granted since no proceedings were yet in issue. The court . .
CitedWyko Group Plc and Others v Cooper Roller Bearings Co Ltd ChD 4-Dec-1995
A court may not grant a declaratory relief anticipating facts which were not yet in being. There must be in existence of a real question in issue between the parties as to the legal consequences of existing facts. Declaratory relief could not be . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Civil Procedure Rules

Updated: 07 December 2022; Ref: scu.237599