CENTALIC TECHNOLOGY DEVELOPMENT LTD. v. WORLDWIDE INDUSTRIAL LTD.

IN THE COURT OF APPEAL

1996, No. 55
(Civil)

----------------------

----------------------

J U D G M E N T

----------------------

Ching, J.A. :

1. The Plaintiff has commenced proceedings against the Defendant for infringement of copyright which have still to be heard. On 25th January, 1996, Rogers, J., dismissed an inter partes application of the Plaintiff for interlocutory injunctive relief and the Plaintiff now appeals.

2. The Plaintiff produces equipment for the testing of printed circuit boards ("PCB"). In the past, when printed circuit boards were not as sophisticated as they are now, a greater lack of precision in the testing equipment was acceptable. Broadly, in those days the testing equipment was in the form described as "clampshell" design where the printed circuit board was laid on the base of the apparatus and a cover, hinged upon that base and containing the testing contacts, was brought down upon it rather like the lid of a waffle machine being brought down upon the batter. As printed circuit boards became more sophisticated the acceptable margin of tolerance in the precision of the testing equipment became less. The Plaintiff claims that it invented a form of the testing apparatus in which the basic structure was in the form of a large capital letter "C" with the open side facing the operator. The printed circuit board which was to be tested would be placed upon the bottom inner surface of the structure. Protruding through the top surface was a pneumatic plunger attached to a plate, the bottom face of the plate bearing the testing contacts. On either side of the plunger were two rods, also protruding through the top, whose bottom ends were attached to the upper surface of the plate. As the plunger moved up and down, the rods would move with it. The testing contacts would thus be brought into contact with the printed circuit board through a horizontal plane rather than the circular plane of the clampshell design. The purpose of the rods was to eliminate or reduce lateral movement of the testing plate. This machine was given the number PCC-102-E which was later modified to become PCC-102-H.

3. After development, the Plaintiff produced another machine to which the number PCC-100 was given. For the purposes of this appeal, this was generally the same as PCC-102-H with an addition. It had four rods rather than two and they were placed at each corner of the testing plate rather than on either side of the plunger. This resulted in greater rigidity and a more even pressure being exerted upon the printed circuit board and was therefore of greater precision. Then an even more advanced model was produced, called the CTM-130, also with four rods but with an additional plate between the upper arm and the testing plate for additional stiffness.

4. The Plaintiff has not based its claim upon inventiveness. It applied for and obtained a patent but it accepts, at least for the purposes of these proceedings, that the patent is invalid. The Plaintiff had published its invention before applying for its patent and had defeated its claim to registration by its own prior art. Instead it relies upon its copyright in the drawings from which its machines are constructed. The Judge below proceeded upon the basis that copyright in those drawings exists and that it is vested in the Plaintiff. The Defendant has not put in a Respondent's notice to challenge that. The question before the Judge was whether a sufficient case of reproduction and copying had been shown to justify the grant of injunctive relief on an interlocutory basis against the Defendant.

5. The Plaintiff and the Defendant are both Hong Kong companies. While the Plaintiff manufactures the Defendant does not. It is an importer but it does not assist the Defendant to say that it is not the manufacturer. It imported the machines for sale and must be responsible for any infringement of copyright. The Plaintiff had seen in trade magazines that a Taiwanese company by the name of Forever Advanced Technology Corp. was advertising a printed circuit board tester with the model number OS2000. It had a "C" frame structure, the testing plate moved through a horizontal plane and there were four rods and two moving plates. It was felt that that machine infringed the Plaintiff's copyright in its drawings but nothing could be done because the manufacturer was in Taiwan and the machines were not being imported into Hong Kong. Subsequently it was learned that the Defendant was importing them for sale. It is common ground that the Defendant's source is the Taiwanese manufacturer. The Plaintiff demanded that the Defendant should cease and desist but, after inspecting the Plaintiff's drawings, the Defendant refused to do so. That resulted in the present proceedings.

6. The drawings in question were annexed to an affidavit of Gary Kwok Sui Kit as exhibits KSKG-8 to KSKG-10. KSKG-8 consists of one page and is a drawing of model PCC-102-H without measurements. KSKG-9 consists of 26 pages and are the drawings for model PCC-100. The first page is a partially exploded view of the general arrangement of the structure which includes the holes for the four rods but not the rods themselves. The second page is an exploded view of the rods and the plates. The third is an exploded view of the "C" structure alone. The fourth is an exploded view of what is described as the "Fixture Mount Basin". None of these four drawings bears any dimensions. The remaining 22 pages are of the other parts of the machine and they do bear measurements. KSKG-10 consists of 21 pages of drawings for model CTM-130. The first page is an exploded view of the general arrangement of the entire machine. The next page is a cross section showing the plates. Neither of these drawings bears any dimensions. The remaining 19 pages are of the other parts and do bear measurements. KSKG-9 and KSKG-10 are expressly stated not to have been drawn to scale. There is no reason to suppose that KSKG-8 was drawn to scale either. These drawings are all of what was described as the "handler", that is to say the structure and the basic mechanism of the machine which brings the testing plate into contact with the printed circuit board. They do not show, for instance, any provision for electric or pneumatic connections, any additions such as a computer readout screen, or furniture in or on which the handler may be sold. Those features are irrelevant to this appeal which relates to copyright in the drawings of the handler alone.

7. The main injunctive relief claimed in the inter partes summons was contained in paragraph 1(a). It sought an injunction against the usual array of acts in relation to :-

"(i) apparatus for testing printed circuit boards of the type identified as model number OS2000 and shown in the exhibit marked KSKG-14 to the affidavit of Mr. Kwok Sui Kit, Gary sworn herein."

The exhibit was an advertisement by the Defendant which showed a machine without a model number and appearing under the words "Forever Advanced". The machine is depicted with some cladding, next to a computer screen and resting on what appears to be a desk. Insofar as sub-paragraph (i) purported to claim relief against the whole of what was depicted it was clearly too wide. Insofar as it was meant to refer only to those parts which infringed the Plaintiff's copyright it was imprecise. The next sub-paragraph read,

"(ii) any apparatus for testing printed circuit boards substantially similar in appearance to the type identified as CTM-130 and shown in the exhibit marked KSKG-1 to the affidavit of Mr. Kwok Sui Kit, Gary shown herein."

That exhibit was one of the Plaintiff's brochures. It showed a picture of a completed model CTM-130. Again, the claim was far too wide or imprecise. The last sub-paragraph was,

(iii) any apparatus for testing printed circuit boards which produces the whole or a substantial part of the Plaintiff's drawings shown in exhibits KSKG-8, KSKG-9 and KSKG-10 to the affidavit of Mr. Kwok Sui Kit, Gary sworn herein."

Those exhibits have already been described.

8. There was some dissension as to how the Plaintiff had put its case in the Court below, a dispute not assisted by the fact that none of the Counsel appearing before us appeared then. On instructions, Mr. Warren Chan, Q.C., who appeared for the Defendant asserted that in the Court below the Plaintiff had relied upon one composite copyright in each set of drawings for each model broadly embracing both the general assembly and the various parts. He said that the Plaintiff could not now rely upon breach of copyright in the drawings for the general arrangement alone. On instructions, Mr. Andrew Liao, Q.C., who appeared for the Plaintiff asserted that in the Court below the Plaintiff had not relied upon the drawings for the parts but only upon the drawings for the general arrangements. In any event he said that the argument of infringement of the copyright in the general assembly drawings alone was open to him now. The dispute as to what occurred below is not one that we can resolve. The summons claims protection for the drawings for both the general arrangement and the parts and the Judge dealt with them separately. Generally, each drawing or sheet of drawings attracts its own copyright. In Temple Instruments, Ltd., v. Hollis Heels, Ltd. (1973) RPC 15 copyright was claimed in two drawings both on the same sheet of paper. The Defendants argued that there were two copyrights, one in each drawing, and that each had to be looked at separately. Graham, J. said at p.18,

"I find this entirely unreal and take the view that where as here two sketches or drawings are included on a sheet and obviously relate to the same article they can both be looked at, both for the purpose of establishing the scope of the copyright and for considering purposes of infringement."

The fact that more than one drawing is on the same sheet of paper is perhaps not a convincing reason for saying that both must or can be considered together. It appears, however, that the learned Judge added that fact merely as emphasis. In that case the drawings concerned the leg of a divan. One was of a vertical section and the other was of a cross-section. Clearly they were drawings from different perspectives of the same article and in those circumstances, whether they were on one sheet of paper or two, reference to one would assist in the understanding of the other. That is not to say that, whether on one sheet or two, the drawings together were covered by a single copyright. InSolar Thomson Engineering Co., Ltd. v. Barton (1977) RPC 537 the Court was concerned with three drawings, all on one sheet. In relation to the defence under section 9(8) of the Copyright Act, 1956, Buckley, L.J., said at p.559,

"..... the notional unskilled observer should be treated as having a sectioned cheek piece in his hand for the purposes of section 9(8). He would, I think, be entitled to interpret the sectional drawing in the light of the contemporary associated drawings."

In Rose Plastics GmbH v. William Beckett & Co. (Plastics) Ltd. (1989) FSR 113 there were three drawings each on a separate sheet and each of a different aspect of the same object. Whitford, J., was content to proceed on the basis that the three drawings could be read together. These decisions are not authority for any proposition that there is only one copyright in a set of drawings or that all of the drawings must in any case be read together.

9. The copyright in the drawings of the general arrangements, being the single page of Exhibit KSKG-8, the first three pages of Exhibit KSKG-9 and the first two pages of KSKG-10, are each subject to their own copyright. At an extreme, however fanciful in practice it may be, an infringement of those copyrights could occur even if the copyright in any of the drawings of the parts were not infringed. See, for instance Billhöfer Maschinenfabrik GmbH v. T.H. Dixon & Co., Ltd (1990) FSR 105. Copyright does not protect ideas but it protects the form in which those ideas are expressed and thereby the skill and labour which has been devoted to developing them and their translation onto paper. The skill and labour devoted to the general assembly drawings and that devoted to the parts drawings are of course related. But each copyright is separate. Having regard to the terms of sub-paragraph (iii) in paragraph 1(a) of the summons in the present case it was clearly open to Mr. Andrew Liao before us not to rely upon any infringement of the copyright in the drawings in the parts but to restrict himself to an argument as to infringement of the copyright in the general assembly drawings.

10. In the course of the hearing in the Court below the Judge had the Plaintiff's drawings and inspected the Defendant's machine. He took some measurements but the judgment does not reveal what he measured or what measurements he obtained. He referred to the judgment of Lord Oliver in Interlego A.G. v. Tyco Industries Inc. (1988) RPC 343 on the permissibility of referring to explanatory figures and legends on drawings and then said,

"The question is whether the Defendant's article can in any way be said to be a reproduction. As Lord Oliver said, one has to take into account measurements on a drawing. They are not to my mind all important, but they do give the reader of the drawings some indication of what the drawing actually shows. As I will come to, I found nothing in any (sic) measurements to indicate reproduction."

Presumably "any" should have been "my". The general arrangement plans contained no measurements. Since KSKG-9 and KSKG-10 were expressly stated not to have been drawn to scale and there is no reason to suppose that KSKG-8 was drawn to scale, in taking the measurements the Judge was clearly adverting to the drawings of the parts and not to the general assembly drawings.

11. He then dealt specifically with the parts. There were some parts in the Defendant's machine that were not accessible to view and rightly he therefore ignored them. He compared what he could see with the relevant drawings and found that there were some parts in the machine with no corresponding parts in the drawings. As to the remaining parts he found that there were no aspects of the drawings which on a proper analysis could be said to have been copied. For the purposes of this appeal none of this is attacked. What is strongly attacked is the next passage, dealing with the infringement of the copyright in the general assembly drawings when he said,

"Turning to the Assembly drawings (or what are sometimes called General Arrangement drawings) and sketches even accepting that the Defendant's apparatus has a basic C-shaped cross-section and indeed that it has the two-layer support structure, with four guide-rods to hold the test fixture and the pneumatic cylinder, in my view in the way that takes its form in the Defendant's apparatus it is in no sense a reproduction of any of the Plaintiff's drawings. Not merely could I find no corresponding measurements between the Plaintiff's drawings and any part of the Defendant's machine but the proportions, in so far as they were comparable, were quite different. The construction of the Defendant's machine did not appear to me to accord with the drawings. In no sense could I see that it was a reproduction."

It is to be remembered that the Judge had the benefit of inspecting the Defendant's machine which this Court has not had.

12. The attack on this part of the judgment was four fold. First, the Judge was wrong to take into account the measurements and proportions especially when the Plaintiff had not been given an opportunity to deal with them. Secondly, on the question of reproduction, the reading and interpretation of the drawings was a matter for the person to whom the plans were addressed, namely an engineer or at least a person knowledgeable in the field, and not for a layman such as the Judge. There was evidence from such persons which the Judge ignored. Thirdly, in the circumstances there was a presumption of copying which it was for the Defendant to rebut. Finally, the Judge appears to have proceeded to apply the test in section 9(8) at the beginning of his enquiry rather than at the end.

13. It is odd that the Judge referred to measurements and proportions when considering the general assembly drawings for, as has been seen, those drawings contained no measurements and were not drawn to scale. Once more he must have been adverting to the drawings of the parts. In other words, he apparently considered each set of drawings as a whole and imported the details of the drawings of the parts into the drawings of the general assembly. That was not permissible. The drawings of the general assembly attracted copyright themselves and it does not appear that their interpretation required or would benefit from reference to any of the drawings for the parts. If that is what the Judge did it vitiates his finding that the construction of the Defendant's machine did not accord with the drawings.

14. The second complaint concerns the evidence to be considered in relation to the primary question of reproduction. In Billhöfer Maschinenfabrik GmbH v. T.H. Dixon & Co., Ltd. (supra) the Plaintiff did not allege any infringement of copyright in the parts. It alleged infringement of the drawing showing the layout of those parts. In the circumstances of the case the question of whether or not there was substantial reproduction depended upon the actual dimensions and relationships of the infringing article compared with those in the drawings. At p.121, Hoffman, J., said,

"On the other hand, the question of whether the actual dimensions and relationships visually depicted on the drawings are sufficiently important to be a substantial part must in my judgment depend upon their significance to the kind of person to whom the drawing is addressed. To regard 'visually significant' as meaning significant to the layman is in my view illegitimate. It imports into the primary question of whether reproduction has taken place a statutory concept used only in connection with the special defence under section 9(8)."

The machines in that case were machines in which exact tolerances between the various parts were important and thus the emphasis on actual dimensions and relationships. That is not so in the present case. Nor, it may be added, has it been argued that the general arrangement drawings cannot be the subject of copyright because the structure was dictated by necessity. The principle to be extracted is that at the primary stage of considering whether or not there has been reproduction the test is not what a layman would think. The question is what the person to whom the drawing is addressed would think. In that and the present case, the person must be an engineer or at least a person knowledgeable in this area.

15. The Plaintiff filed one affirmation of Lee Wo Hing. That went only to the issue of the existence of copyright and can therefore be put to one side. The Plaintiff also filed three affidavits of Mr. Gary Kwok Sui Kit. He joined another company in the same group as the Plaintiff in 1985. He is now the general manager of the marketing department of the Plaintiff. Nowhere in his affidavits does he say whether he has any academic qualifications or, if so, what they may be. However, it was he who in May 1985 modified the design of model PCC-102-H so that it could handle a larger size of printed circuit board and it was he who, with the help of a technician, assembled a prototype of that model as shown in KSKG-8. In 1987 it was he who modified the design of the tester again, and built a prototype of it with the help of other engineers in the company, and produced KSKG-9, with four rods. Again it was he who drew the plans for the new model CTM-130 as shown in KSKG-10 with the four rods and the extra plate. Obviously, Mr. Gary Kwok Sui Kit is one of the class of persons to whom drawings such as those in question would be addressed.

16. The Defendant filed two affidavits of Mr. Choy Wai Chow. He is the general manager of the marketing and sales department of the Defendant. He holds a degree of a Bachelor of Science from the National Taiwan University which he achieved in 1980. He has worked as an engineer, a quality engineering supervisor, manufacturing engineer manager and manufacturing manager in connection with printed circuit boards for about 10 years. He gives substantial details of his involvement in the industry. He too is one of the class of persons to whom drawings such as those in question would be addressed. It would be wrong at this interlocutory stage to attempt to compare the credibility of Mr. Choy Wai Chow and Mr. Gary Kwok Sui Kit. Mr. Andrew Liao, Q.C., accepts this and asserts that if these two deponents had given conflicting evidence upon the question of reproduction then there would be a serious question to be tried and the status quo should be maintained pending trial. He says further that there is in any event no such conflicting evidence. He says that the evidence of reproduction is all one way and comes from Mr. Gary Kwok Sui Kit. An examination of the evidence shows that that is so.

17. Mr. Gary Kwok Sui Kit gives detailed evidence as to the state of the art when the Plaintiff's drawings came into existence and consistently asserts in his three affidavits that the Defendant's machine must have been copied from the Plaintiff's. The affirmations of Mr. Choy Wai Chow do not deal with the essential point of reproduction in a three dimensional form of the Plaintiff's general assembly drawings. He asserts, in effect, that the moving of the testing plate through a horizontal plane and the use of steadying rods is common to the trade and therefore disputes inventiveness, which is not to the point. He points out various differences between the Defendant's machine and the Plaintiff's insofar as parts, functions and efficacy are concerned, but that is not the point. The closest he comes to the relevant question is in paragraph 42(a) of his first affirmation where he says,

"All the drawings concerned only machine parts or components. From the said drawings, one cannot imagine that the drawings is about a BBT."

"BBT" is shorthand for "bare board testers" such as the machines in question. Mr. Choy Wai Chow appears to have overlooked the general arrangement drawings and their import. In reply to the last sentence quoted above, Mr. Gary Kwok Sui Kit said in paragraph 26 of his second affirmation,

"Mr. Choy, who considers himself to be knowledgeable in the field of PCB technology, states in paragraph 42(a) that he cannot imagine from the drawings that they are in respect of a PCB test handler. I find this very surprising as I consider it would be plain, to any reasonably intelligent person, that the drawings are an exploded view of a PCB handler and would give the reasonably intelligent viewer an understanding of what the assembled apparatus would look like."

Artistic copyright is not, like trade marks, divided into classes of products but it is not necessary to decide in this case whether or not there would have been an infringement of the Plaintiff's general assembly drawings if a machine had been made for a purpose other than for the testing of printed circuit boards.

18. There may be cases where the general arrangement drawings and the allegedly infringing product are so clearly different that the Judge might refuse to accept the evidence of reproduction even at the primary stage and even when it is all one way. If the affidavit of Mr. Gary Kwok Sui Kit is accepted at face value and if the reproduction would be plain to any reasonably intelligent person it would seem that he was effectively extending an invitation to the Judge to come to a conclusion upon his own observations. He was speaking, however, as an engineer or at least as a person knowledgeable in this field. No doubt in his mind it was clear that any reasonably intelligent person would think that the Defendant's machine was a reproduction of the Plaintiff's drawings in three dimensional form. However that may be, although the Judge had the benefit of inspecting the Defendant's machine he gave no details of the matters which caused him to hold that there was no reproduction except to refer to his own measurements. His finding ignored the evidence of Mr. Gary Kwok Sui Kit and if this was a case where the differences between the Plaintiff's drawings and the Defendant's machine were so great as to allow him to come to his own conclusion unassisted by the evidence that conclusion is vitiated by the fact that he found such differences to exist, wholly or in part, on his own measurements. This is the more so when the Plaintiff was given no opportunity to deal with those alleged differences. At the least there was surely a serious issue to be tried on reproduction.

19. Even if reproduction had been found, the next question is that of copying. Mr. Andrew Liao, Q.C., points to the decision of the House of Lords in L.B. (Plastics) Ltd. v. Swish Products, Ltd. (1979) RPC 551 as authority that there is prima facie copying when there is similarity (a question of degree) and opportunity. In that case, as in this, the Defendant did not have access to the Plaintiff's drawings but the copying is said to have occurred by what is called reverse engineering. The Plaintiff's machines were freely available on the market. Nor is it difficult to see that a manufacturer may have a motive to copy and so save development costs and time. There is no evidence whatsoever that the Defendant's manufacturer developed their machine to any degree itself. The affidavits of Mr. Gary Kwok Sui Kit are littered with allegations that that manufacturer did copy. An allegation of copying naturally imports an allegation of similarity and indeed there are direct allegations in the affidavits of Mr. Gary Kwok Sui Kit. Paragraph 26 of his first affidavits reads,

"The points of similarity between the model OS2000 and Centalic's CTM-130 is that both machines use four guide rods which move through a two level parallel support system. As I have stated above this configuration was designed by me and prior to my creating this design there was no other PCB tester on the market with this configuration. In light of the circumstances I was of the view that the similarity between OS2000 and CTM130 machine could only be explained by copying."

Paragraphs 21 and 27 of his second affidavit contain a similar allegation, the former giving an analysis of the only differences between the machines.

20. The two affirmations of Mr. Choy Wai Chow consist of a total of 57 pages with 365 pages of exhibits. The vast majority of both the affirmations and the exhibits are irrelevant. So far as both reproduction and copying are concerned the affirmations depose at length to the superiority of the Defendant's machine over that of the Plaintiff, the additional features in and the different packing of the Defendant's machine, the lack of interchangeability of the parts of the two machines, and the allegation that the use of rods and plates moving through the horizontal plane is common to the trade. Nowhere in these affidavits is the question of copying directly addressed. In his second affirmation he gives details of the manufacturer, Forever Advanced Technology Corp., and of the qualifications of its shareholders. It is argued that he was unable to say how their machine came to be produced because the Defendant is only an importer, not the manufacturer. For the purposes of this appeal, however, importing the machine for the purposes of sale makes the machine just as much one of the Defendant as it is one of the manufacturer. The Defendant was not unable to obtain details of the manufacturer and its shareholders. It is even said that the manufacturer had obtained a patent in Taiwan for its pneumatic plunger and that the manufacturer wanted to supply a copy of the patent but had not done so. In the light of the evidence of copying it would have been a simple matter for Mr. Choy Wai Chow at least to say that he had been told by the manufacturer that it had not copied. No such evidence was given.

21. The end result is as follows. No issue arose on the subsistence or ownership of the copyright in the general assembly plan. There were serious issues to be tried on the two questions of reproduction and copying. The Judge's finding that there was no reproduction cannot stand because he appears to have applied the test of the defence in section 9(8), imported the measurements and proportions in the drawings of the parts into the drawings for the general assembly and ignored the evidence of Mr. Gary Kwok Sui Kit in this respect. The importation of the measurements and the proportions into the general assembly drawings also fatally undermines the Judge's finding as to copying. There was, in addition, clear prima facie evidence of copying which the evidence of the Defendant did not rebut.

22. A great deal of evidence was filed as to the loss that would occur to either party in the event of a refusal or a grant of the injunction and the ability of each party to pay. It is unnecessary to deal with that. The Plaintiff has shown that there are serious issues to be tried. The damage to the Plaintiff would be substantial and irreparable. The machines comprise the whole of the business of the Plaintiff but only a small part of that of the Defendant.

23. I would therefore hold that the appeal must therefore succeed insofar as the infringement of the copyright in the general assembly drawings in GKSK-8 to GKSK-10 are concerned. The injunction should refer specifically to those drawings and Counsel should prepare a draft order for that as well as for the other consequential relief which was claimed.

Godfrey, J.A. :

24. When a judge is called on to exercise his discretion whether to grant or refuse an interlocutory injunction, he has to decide which course is the more just and convenient; and the interests of justice require him to have regard, among other things, to the strength of the applicant's case. If in a case like the present, the judge forms the view that if the action were to go to trial the applicant would succeed, or would probably succeed, in obtaining a permanent injunction, that is a powerful consideration in favour of granting the interlocutory relief sought. If the judge forms the view that the applicant would not succeed, or would probably not succeed, in obtaining a permanent injunction at the trial, that is a powerful consideration against granting such relief.

25. If the judge can be shown to have misapprehended the evidence, and that in consequence his assessment of the applicant's chances of obtaining a permanent injunction was plainly wrong, this court is bound to reconsider the matter; and decide whether, on that evidence, the judge should have granted, or refused, the interlocutory relief sought. Otherwise, this court is not entitled to interfere with the judge's exercise of his discretion.

26. In the present case, the judge (who has specialist experience in the intellectual property field) considered all the drawings which the plaintiff had invited him to consider, the parts drawings as well as the assembly drawings; inspected the defendant's machine for himself; and (without objection) took measurements of that machine. To put it shortly, he came to the conclusion that the defendant's machine was not produced by the process known as "reverse engineering" and that the charge of infringement of copyright made by the plaintiff against the defendant would not succeed.

27. I can see no good reason for disagreeing with the judge's assessment of the strength (or, rather, the weakness) of the plaintiff's case, based as that assessment was on the material presented and the arguments addressed to him. I would not be prepared to hold that the judge misapprehended the evidence, or made a faulty assessment of the plaintiff's case, particularly since we, unlike the judge, have not had the benefit of any inspection of the defendant's machine. The attempt made by the plaintiff, in this court, to rely only on the assembly drawings and to jettison (not altogether, but only for the purposes of the appeal) the parts drawings which counsel for the plaintiff before us accepted do not justify any charge of copying by the defendant is, in my opinion, an illegitimate forensic exercise; we in this court have to review what the judge decided on the material before him.

28. I have had the opportunity of reading in draft the judgment of Ching, J.A. from which it appears that Ching, J.A. would, on the basis of the assembly drawings alone, have come to a conclusion different from that of the judge. But, with all respect, it is not for this court to substitute its view of the matter for that of the judge : see Hadmor Productions Ltd. v. Hamilton [1983] 1 AC 191. It is only if, and after, this court concludes that the judge has exercised his discretion based on a misapprehension of the evidence, or has plainly gone wrong in balancing the relevant factors which he had to consider, that this court becomes entitled to exercise an original discretion of its own.

29. Accordingly, I would, for my part, dismiss this appeal.

Litton, V.-P.:

30. I have had the advantage of reading in draft the judgments of Godfrey and Ching JJ.A. and find myself in agreement with Godfrey JA's approach.

31. Rogers J had before him a large volume of material, including two affirmations from the defendant's general manager Mr Choy Wai-chow. From reading those two affirmations, prolix and discursive though they may be, it is reasonably clear that the defendant is strenuously refuting the allegation that model number OS200, imported from Taiwan, infringes the copyright in the plaintiff's drawings exhibit KSKG-8, KSKG-9, and KSKG-10. For example, in para 23(a) of Mr Choy's second affirmation he makes the point that whilst both parties' models show two horizontal plates, the mounting of the plunger is quite different. The design of the test table is also different: see para 23(d). The mountings of the horizontal plates are also different: see para 23(a) on p11 of the second affirmation.

32. Whilst the case for the plaintiff is now confined to the general assembly drawings - a case somewhat different from that presented in the court below - nothing compels the court to view them in isolation. When the assembly drawings are looked at together with the parts drawings - Rose Plastics GmbH v. William Beckett & Co. (Plastics) Ltd. [1989] FSR 113 - the plaintiff's allegation of copying by reverse engineering becomes weaker still, as the dimensions of the components shown in the parts drawings are quite different. The parts go towards making up the whole.

33. Having reached this point, a question immediately arises as to whether the plaintiff has surmounted the threshold of showing that there is a serious issue to be tried on copying. This was essentially a matter for the judge to weigh. I see no error in this regard. The exception from protection of "artistic works" in section 9(8) of the Copyright Act 1956 operates by the use of the "inexpert eye": and the judge, having looked at model number OS200, has concluded that it is not a reproduction of the general assembly drawings. That seems to me to conclude the matter - at least at the interlocutory stage. Whether the plaintiffs wish nevertheless to chance their arm in further litigation is a matter for them to decide.

34. The result is that, by a majority, this appeal is dismissed, with an order nisi that the appellant should pay the respondent's costs.