“Yes, I generally agree with Mr Rozenburg. In order for information to be confidential and protected, the holder of a commercial secret must take special steps to preserve confidentiality. Among other things, the holder must expressly identify the information comprising its commercial secrets, must mark documents containing such information as “Commercial Secret of [name of holder of the secret]”
“[0001] The present invention relates to a remotely operated vehicle for picking up storage bins from a storage system as defined in the preamble of claim 1. The invention also relates to a storage system using the inventive vehicle.”
“Firstly, the particular design of the robot prevents access to all off the available storage columns in the storage system. Furthermore, this particular design may cause an undesirable high torque during lifting and transportation of storage bins, thereby creating potential instability problems, as well as a clear limitation of the robots maximum handling weight. An additional disadvantage caused by the prior art robot design is the fact that only one particular bin and one particular bin height may be accepted for each type of robot in order to ensure adequate stability. Finally, the presence of an integrated yoke/overhang in the upper part of the section receiving the storage bin necessitates an undesired speed reduction at the final stage of the lifting process performed by the yoke suspended vehicle lifting device. The object of the present invention is to solve, or at least substantially alleviate, the above-described disadvantageous [sic], that is to provide a vehicle/robot with higher stability properties, higher maximum handling weights, a more effective use of available space during operation and a less time-consuming lifting and transporting process of storage bins.”
“… a first section for storing vehicle driving means and a second section for receiving any storage bin”
“… at least one of the two sets of vehicle rolling means [i.e. wheels] is arranged fully within the body.”
“In a preferred embodiment the vehicle body covers less or equal to the lateral cross sectional area of one central storage column in the first direction (X) and covers the lateral cross sectional area of more than one central storage column in the second direction (Y) during use. In a more specific example the vehicle body extends beyond the lateral cross sectional area of the central storage column at both sides facing the second direction (Y), i.e. covering also some of the cross sectional areas of the adjacent storage columns extending in the second direction (Y). The degree of extension from the central storage column is preferably equal on both of these sides. Central storage column is defined as the storage column which is immediately below a robot when the latter has reached a position allowing pick-up of a storage bin.”
“The present invention also concerns a storage system which comprises a remotely operated vehicle in accordance with the above mentioned features, a vehicle support comprising a plurality of supporting rails forming a two dimensional matrix of guiding meshes, wherein the vehicle support is configured to guide the movements of the vehicle in the first direction (X) and the second direction (Y) during use, a bin storing structure or grid supporting the vehicle support comprising a plurality of storage columns, wherein each of the storage columns is arranged to accommodate a vertical stack of storage bins and wherein the main part of the bin storing structure coincides with positions on the vehicle support where the supporting rails are crossing, and a bin lift device arranged to convey a vehicle delivered storage bin in a direction perpendicular to the lateral plane of the vehicle support between the vehicle support and a delivery station.”
“The central arrangement of the cavity in the vehicle body relative to the second direction (Y) effectively remove the undesired torque, thereby improving the stability of the robot or vehicle. This arrangement also results in a lifting and transporting process having a weight distribution with a high degree of symmetry. Furthermore, the novel design allows the same vehicle to be used for lifting and transporting storage bins of heights significantly less than the cavity height (i.e. the height extending from the suspension points of the lifting device and to the lower edge of the vehicle) since the framework / body surrounding at least part of the bin receiving cavity effectively hinders any undesired bin reeling/wobbling. The presence of the cavity surrounding body also allows maintaining full or nearly full lifting speed almost all the way to its end position within the cavity, as well as initiation of stable bin transportations towards the delivery station prior to a fully completed bin lifting from a storage column. The protective body around the cavity also gives the possibility of starting a descent of the lifting device event prior to the time the vehicle has come to a final halt above the storage column in question. A significantly higher stability and time efficiency is thus achieved.”
“1. A storage system comprising - a remotely operated vehicle, - a vehicle support comprising a plurality of supporting rails forming a two dimensional matrix of guiding meshes, the vehicle support being configured to guide the movements of the remotely operated vehicle in a first direction (X) and a second direction (Y) during use, - a bin storing structure supporting the vehicle support, the structure comprising a plurality of storage columns, wherein each storage column is arranged to accommodate a vertical stack of storage bins, and the main part of the bin storing structure coincides with positions on the vehicle support where the supporting rails are crossing, - a bin lift device arranged to convey a vehicle delivered storage bin in a direction perpendicular to the lateral plane of the vehicle support between the vehicle support and a delivery station, characterised in that the remotely operated vehicle comprises a vehicle body comprising a first section for storing vehicle driving means and a second section for receiving any storage bin stored in a storage column within the storage system, the second section comprising a centrally arranged cavity within the vehicle body, the cavity having at least one bin receiving opening facing towards the storage columns during use, a vehicle lifting device at least indirectly connected to the vehicle body for lifting the storage bin into the second section, a first set of vehicle rolling means connected to the vehicle body allowing movement of the vehicle along the first direction (X) within the storage system during use and a second set of vehicle rolling means connected to the vehicle body allowing movement of the vehicle along the second direction (Y) in the storage system during use, the second direction (Y) being perpendicular to the first direction (X), at least one of the sets of vehicle rolling means being arranged fully within the vehicle body.” - a remotely operated vehicle, - a vehicle support comprising a plurality of supporting rails forming a two dimensional matrix of guiding meshes, the vehicle support being configured to guide the movements of the remotely operated vehicle in a first direction (X) and a second direction (Y) during use, - a bin storing structure supporting the vehicle support, the structure comprising a plurality of storage columns, wherein each storage column is arranged to accommodate a vertical stack of storage bins, and the main part of the bin storing structure coincides with positions on the vehicle support where the supporting rails are crossing, - a bin lift device arranged to convey a vehicle delivered storage bin in a direction perpendicular to the lateral plane of the vehicle support between the vehicle support and a delivery station, characterised in that the remotely operated vehicle comprises a vehicle body comprising a first section for storing vehicle driving means and a second section for receiving any storage bin stored in a storage column within the storage system, the second section comprising a centrally arranged cavity within the vehicle body, the cavity having at least one bin receiving opening facing towards the storage columns during use, a vehicle lifting device at least indirectly connected to the vehicle body for lifting the storage bin into the second section, a first set of vehicle rolling means connected to the vehicle body allowing movement of the vehicle along the first direction (X) within the storage system during use and a second set of vehicle rolling means connected to the vehicle body allowing movement of the vehicle along the second direction (Y) in the storage system during use, the second direction (Y) being perpendicular to the first direction (X), at least one of the sets of vehicle rolling means being arranged fully within the vehicle body.”
“The inventive vehicle or robot comprises a vehicle body, which vehicle body further comprises a first section for storing vehicle driving means and a second section for receiving any storage bin stored in a storage column within the storage system, a vehicle lifting device which is at least indirectly connected to the vehicle body … , a first set of vehicle rolling means connected to the vehicle body … and a second set of vehicle rolling means connected to the vehicle body …”
“[33] The judge was, therefore, in my judgment, allowing the numerals themselves to influence the construction of the claim in violation of Jacob L.J.'s primary injunction in [17] of [Virgin Atlantic Airways Ltd v Premium Aircraft Interiors UK Ltd[2009] EWCA Civ 1062 ]. This was not a use of numerals simply to identify the parts of the patented device, or, to use Jacob L.J.'s analogy, to enable the reader to get the map the right way up. It was the use of numerals to direct the skilled reader to which parts of the patented device were to be read in the claims as being included when a particular term was used. Whilst, as the judge said, the point was not used to ‘limit’ the claims in direct violation of r.43(7), it was used to construe the claims and, in particular, to give an extended meaning to the term ‘main body’ so as to include the lid, which increased the scope of the patentee's protection. That was in my judgment impermissible.”
“Fig. 5 gives a perspective view of a robot assembly where the body 4 is completely covered by an enclosing cover 73 comprising handles 74 and transmission means/control panel 75. The design of the enclosing cover 73 is adapted to the particular shape given by the body 4 and the protruding wheels 10.”
“ … ‘vehicle body’ means a structural chassis (or ‘framework’) to which the other components of the vehicle are at least indirectly connected.”
“The driving means are in-wheel motors, which by their very nature must be situated within the wheel they drive.”
“54. … the Electrical and Electronic Engineer would understand the term ‘motor’ in its technical sense as referring to the electromagnetic components which convert electrical energy to mechanical energy. Accordingly, the term ‘motor’ would not include the various types of electronics / control circuitry which are used to power and control it – although the way in which such electronics are operated may affect the way in which the motor itself is classified.”
“A. I would say in the case of brushless AC and brushless DC motors, because of the role that they are playing in the operation of the motors, when we talk about a motor in that class, we have to include the power electronics. In the case of a brushless DC motor, the power electronics plays the role of the commutator. Q. So far as what you say in paragraph 141 is concerned ---- A. I am going back there. What I am saying in the context of 141, we have to be careful that not the entire motor is within the wheels. Q. That is not a point you make in paragraph 141, is it, at all? A. It is not made at paragraph 141 ---- Q. Have you ever made this point. A. --- but I am making it now.”
“At least one, and most preferably both, set(s) of vehicle rolling means may comprise at least four wheels. Other embodiments such as the use [of] two perpendicular oriented caterpillar belts may be envisaged.”
“By arranging at least one set of vehicle rolling means fully within the vehicle or robot body [1] additional stability is obtained during the lifting process since the rolling means is situated closer to the storage bin to be lifted. Of the same reason this arrangement [2] reduces the total load on the lifting device. Furthermore, the arrangement is [3] more space efficient relative to the prior art robot illustrated in figure 2 since the roller [sic] means does not give any additional extensions in at least one of the two robots moving directions (X and Y). [4] Production of smaller sized robots/vehicles is also rendered possible.”
“... the Skilled Engineer would consider the technical advantage [of the invention] to reside in an improvement in volumetric efficiency in the context of a given robot with a central cavity.”
“We know that the Fig 2 robot (the cantilever robot in the AutoStore Redline system) was close to 100% space efficient because the columns of bins in storage were only separated by the width of the rails and thus extend as far at the pillars in each corner.”
“41. The storage system of the 794 Patent is explicitly founded on the conventional and well-known AutoStore ‘Red Line’ system in which, as explained by Mr Knights, stacks of bins are positioned in columns, the pillars which make up those columns acting as guides as the bins were pulled up the columns. The bins occupy the whole of the space in the columns, to maximise storage capacity. The pillars act as guides to stop the bins swinging about when being lifted or lowered. See Knights First Report §77, first sentence. The columns are matched by a grid of rails sitting on top of the storage system, with the pillars supporting the intersections between the rails. This is all depicted in Fig 1, and precisely the same arrangement of pillars and grid are shown in Figs 6, 7 and 8 as the underlying storage system of the invention. The whole point of this system is to maximise storage efficiency, at which it is very effective.”
“77. The columns are used to support the rails on which the robots move and they are also used to guide the storage containers as they are stacked within the storage block.”
“22. The rationale for the design of the robots described in EP 794 is different. By placing at least one set of wheels fully within the vehicle body, thereby minimising as far as possible any wasted space around the storage bin in the cell (by making distance A as close as possible to 0), the highest possible storage density is achieved.”
“100. The patent attributes this space efficiency to the fact that “the roller [sic] means does not give any additional extensions in at least one of the two … directions (X and Y).”
“56. Professor Limebeer’s position was that the claim covered a range of possible positions for the X wheels, from ‘just inside’ the outer edge of the side pieces of the robot to the final position adjacent to the cavity which we say is ‘fully within’. 57. He was candid in his Reports that each of these would be less storage efficient than the ‘fully within’ position as construed by Ocado, and therefore of course worse in terms of storage efficiency than the prior art robot shown in Fig 2, because the position of the rails would have to be moved outwards whilst the bins would remain the same size.”
“104. Placing the wheels 10 at the inside of the cavity, on the interior walls of the cavity, produces optimum volumetric efficiency of the cubic storage system. However, placing the wheels at any distance within the side pods (marked 5,5a and 5,5b) achieves an improved volumetric efficiency as compared with exterior wheels as in the prior art cantilever robots.”
“… a bin lift device arranged to convey a vehicle delivered storage bin in a direction perpendicular to the lateral plane of the vehicle support between the vehicle support and a delivery station.”
“The storage system includes a plurality of such robots and a dedicated bin lift device, the latter received to receive a storage bin from the robot at the top level of the bin storing grid and to convey the storage bin down in a vertical direction to a delivery station.”
“53. The robots retrieve containers from within the grid structure and deliver them to the workstations located around the edge of the grid for the human operator to either pack or pick product as required. The container would then be taken back to a storage location in the grid structure by the robots.”
“A. In the AutoStore system, it was known that there were different ways. The first one, there was even a port with a magazine, which is clearly a conveyer working in that. It is shown in the brochure, and it was clearly known that there are different ways to handle that. In some, it was more critical to save the time, there you use the bin lift device; in some you wanted to save the cost, there you had an empty column as a solution, but that was just the CGK, that is not what I learned from the patent.”
“… a plurality of storage columns, wherein each of the storage columns is arranged to accommodate a vertical stack of storage bins …”
“(i) Notwithstanding that it is not within the literal meaning of the relevant claim(s) of the patent, does the variant achieve substantially the same result in substantially the same way as the invention, i.e. the inventive concept revealed by the patent? (ii) Would it be obvious to the person skilled in the art, reading the patent at the priority date, but knowing that the variant achieves substantially the same result as the invention, that it does so in substantially the same way as the invention? (iii) Would such a reader of the patent have concluded that the patentee nonetheless intended that strict compliance with the literal meaning of the relevant claim(s) of the patent was an essential requirement of the invention?”
“[99] The doctrine of equivalents as explained in Actavis requires the variant to be specified. This will be the invention of one of the claims of the patent in suit with one or more integers missing or modified. In the simplest case one integer of the claim is missing in the variant – this will be the integer in issue. The parties will know what that integer is and each may tend to tailor its inventive concept accordingly. … … [103] … a correct assessment of the inventive concept cannot be achieved with the variant in mind. The correct identification of the inventive concept must be done through the eyes of the skilled person, who has no notion of what the variant is. The skilled person has only the relevant claim, the specification as a whole and his or her common general knowledge to work with. Only after the inventive concept has been identified does the variant and with it the integer(s) in issue come into play so that the three Actavis questions … may be considered”
“A cubic storage system comprising the particular features of its structure (in particular the provision of storage columns arranged to accommodate a vertical stack of storage bins) together with a robot comprising a centrally arranged cavity within the vehicle body together with at least one set of vehicle rolling means arranged fully within the vehicle body. The result of this is a system with advantages we have identified above as being the result of the adoption of the central cavity feature. Overall, the system provided has increased stability of both vehicles and bins enabling increased handling weight and speed both of vehicles and of the raising and lowering operation. In addition (in relation to 027 and 794) the system couples those advantages gained from having a centrally arranged cavity together with efficiency as to the spacing between the elements of the vehicle support (i.e. the rails upon which the bot wheels run), in at least one of the X and Y directions. This increases the overall proportion of space in the storage facility that can be used for storage.”
“The placing of the wheels inwards of the body, so that they are adjacent to the cavity, thus maximising storage efficiency in the relevant dimension.”
“… a bin lift device arranged to convey a vehicle delivered storage bin in a direction perpendicular to the lateral plane of the vehicle support between the vehicle support and a delivery station.”
“To: Michael Kutsenko [kutsenko@evs.ru] From: Sven Åge Hjorteland … Sent: Mon7/5/2010 8:51:48 AM (UTC) Subject: CBR – development [Links to 3 design drawings] Hello Michael, Ref. your email regarding development cost for the CBR project. We have based on our meeting and discussions in Norway evaluated the CBR request for AutoStore in details. In our view we have to do a new development to be able to deliver a system that fits CBR’s requests and task. The main development is based on the request that we have to use the existing CBR bin. I have attached the drawing for the new robot design we are working on for the CBR project. New robot design: [Deleted] New grid design: [Deleted] Port: [Deleted] Control software development: [Deleted] Included in the development cost we have also included a test grid and 2 robots so you (EVS) can test your part of the software on a real test system. Hope that this has explained the development cost, and if you have any further questions or comments please don’t hesitate to contact me. Best Regards Sven Åge Hjorteland Managing Director Jakob Hatteland Computer AS [Phone numbers] www.hatteland.com Please note that this message may contain confidential information. If you have received this message by mistake, please inform the sender of the mistake by sending a reply, then delete the message from your system without making, distributing or retaining any copies of it. [Virus warning]”
“… it was, as I said, a normal practice in AutoStore to keep all discussions with clients confidential and, in this case, it was the Central Bank of Russia and I will see them as a very sensitive organisation and our discussion with the Central Bank, so for me it was, yes, strictly confidential, the discussions that we had with EVS and CBR.”
“13. … Finally, I knew that EVS was interested in becoming a distributor for AutoStore in Russia, and it would have been against their interests for these discussions to be treated as other than confidential.”
“2. (1) An invention shall be taken to be new if it does not form part of the state of the art. (2) The state of the art in the case of an invention shall be taken to comprise all matter (whether a product, a process, information about either, or anything else) which has at any time before the priority date of that invention been made available to the public (whether in the United Kingdom or elsewhere) by written or oral description, by use or in any other way.” (2) The state of the art in the case of an invention shall be taken to comprise all matter (whether a product, a process, information about either, or anything else) which has at any time before the priority date of that invention been made available to the public (whether in the United Kingdom or elsewhere) by written or oral description, by use or in any other way.”
“An invention is a piece of information. Making matter available to the public within the meaning of section 2(2) therefore requires the communication of information.”
“Where a patentable invention is imparted in confidence…it does not amount to publication since (in the hallowed words used by Bowen LJ in Humpherson v Syer (1887) 4 R.P.C. 407, 413) the recipient of the information is not ‘free in law and equity to use it as he pleased.’”
“The argument that the question of whether a document was made available to the public was one of fact and degree was decisively rejected. I think that was a good thing: it provided a bright-line workable rule which has served the test of time. Expensive investigation of not only whether a piece of prior art was known but how well known it was known is obviated. The small price of the occasional harsh decision is well worth it for the sake of a cohesive and predictable system.”
“… written in Sanskrit wrongly placed in the children’s section of Alice Springs public library …”
“[113] The burden of proving that matter was made available to the public lies with the party asserting it, i.e. Nokia. Mr Silverleaf tried to unload the burden onto Qualcomm to prove the contrary by submitting that once distribution of a document had been proved, the burden shifted. That cannot be right as a general proposition. If what is proved is distribution through a channel which would normally be expected to make the document available to the public, then the burden will shift, at least temporarily. But if what is proved is distribution through an unconventional channel, particularly one where precautions to maintain confidentiality of some kind were taken, the burden will remain with the party seeking to establish that the document was made available to the public.”
“has repeatedly been cited with approval at the highest level: see Lord Griffiths in Attorney General v Guardian Newspapers Ltd (No 2)[1990] 1 AC 109 , 268, Lord Nicholls of Birkenhead in Campbell v MGN Ltd[2004] 2 AC 457 , para 13 and Lord Hoffmann in Douglas v Hello! Ltd (No 3)[2008] AC 1 , para 111 . (It is not, however, a complete statement of the ingredients of a successful claim: there is a further requirement, namely that the unauthorised use of information was without lawful excuse.)”
“As the authors’ analysis makes clear, the issue is context- and fact sensitive, and confidentiality is a relative and not an absolute concept. They identify the basic attribute which information must possess before it can be considered confidential as being inaccessibility: see paras 5.14 to 5.20. I agree with this.”
“It may be that that hard-worked creature, the reasonable man, may be pressed into service once more; for I do not see why he should not labour in equity as well as at law. It seems to me that if the circumstances are such that any reasonable man standing in the shoes of the recipient of the information would have realised that upon reasonable grounds the information was being given to him in confidence, then this should suffice to impose upon him the equitable obligation of confidence. In particular, where information of commercial or industrial value is given on a business-like basis and with some avowed common object in mind, such as a joint venture or the manufacture of articles by one party for the other, I would regard the recipient as carrying a heavy burden if he seeks to repel a contention that he was bound by an obligation of confidence”
“I start with the broad general principle (which I do not intend in any way to be definitive) that a duty of confidence arises when confidential information comes to the knowledge of a person (the confidant) in circumstances where he has notice, or is held to have agreed, that the information is confidential, with the effect that it would be just in all the circumstances that he should be precluded from disclosing the information to others.”
“The relevant factors for establishing such knowledge or notice include: the nature of the information (whether it is banal, trivial, common knowledge, commercially valuable, or intimately personal); the steps taken to preserve or emphasize the secrecy of the information (eg whether it is marked ‘confidential’ or ‘private’; or if special care is taken that there is a restricted disclosure to others); the manner in which the information was disclosed or obtained (whether it is informal, social commercial, or professional); the understanding of the parties involved (ie did they in fact regard the information as confidential or themselves as being under an obligation of confidence); and where the information is disclosed for a specific, limited purpose and it is understood, from the legal and cultural context of the disclosure, that the information will not be used for another purpose. In other words, the ‘limited purpose’ of the disclosure is a factor to be considered as part of the ‘notice of confidentiality’ test.”
“The basic principle to be adopted is that subject-matter has not been made available to the public by use or in any other way if there is an express or tacit agreement on secrecy which has not been broken. In order to establish whether there is a tacit agreement, the division must consider the particular circumstances of the case especially whether one or more parties involved in the prior use had an objectively recognisable interest in maintaining secrecy. If only some of the parties had such an interest, it must be established if the other parties implicitly accepted to act accordingly. For example, this is the case when the other parties could be expected to maintain secrecy in accordance with the usual business practice in the relevant industry. For establishing a tacit agreement important aspects to be considered are, inter alia, the commercial relationship between the parties and the exact object of the prior use. The following may be indicators of a tacit secrecy agreement: A parent company – subsidiary relationship, a relationship of good faith and trust, a joint venture, the delivery of test specimens. The following may be indicators of the absence of such an agreement: An ordinary commercial transaction, the sale of parts for serial production.”
“2. Natural and legal persons shall have the possibility of preventing information lawfully within their control from being disclosed to, acquired by, or used by others without their consent in a manner contrary to honest commercial practices 10 so long as such information: (a) is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question; (b) has commercial value because it is secret; and (c) has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret.” (a) is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question; (b) has commercial value because it is secret; and (c) has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret.”
“For the purpose of this provision, ‘a manner contrary to honest commercial practices’ shall mean at least practices such as breach of contract, breach of confidence and inducement to breach, and includes the acquisition of undisclosed information by third parties who knew, or were grossly negligent in failing to know, that such practices were involved in the acquisition.”
“CHAPTER 1 SCOPE Article 1 Scope 1. This Regulation shall apply, in situations involving a conflict of laws, to non-contractual obligations in civil and commercial matters. It shall not apply, in particular, to revenue, customs or administrative matters or to the liability of the State for acts and omissions in the exercise of State authority (acta iure imperii). 2. The following shall be excluded from the scope of this Regulation: (a) non-contractual obligations arising out of family relationships and relationships deemed by the law applicable to such relationships to have comparable effects including maintenance obligations; (b) non-contractual obligations arising out of matrimonial property regimes, property regimes of relationships deemed by the law applicable to such relationships to have comparable effects to marriage, and wills and succession; (c) non-contractual obligations arising under bills of exchange, cheques and promissory notes and other negotiable instruments to the extent that the obligations under such other negotiable instruments arise out of their negotiable character; (d) non-contractual obligations arising out of the law of companies and other bodies corporate or unincorporated regarding matters such as the creation, by registration or otherwise, legal capacity, internal organisation or winding-up of companies and other bodies corporate or unincorporated, the personal liability of officers and members as such for the obligations of the company or body and the personal liability of auditors to a company or to its members in the statutory audits of accounting documents; (e) non-contractual obligations arising out of the relations between the settlors, trustees and beneficiaries of a trust created voluntarily; (f) non-contractual obligations arising out of nuclear damage; (g) non-contractual obligations arising out of violations of privacy and rights relating to personality, including defamation. … Article 2 Non-contractual obligations 1. For the purposes of this Regulation, damage shall cover any consequence arising out of tort/delict, unjust enrichment, negotiorum gestio or culpa in contrahendo. 2. This Regulation shall apply also to non-contractual obligations that are likely to arise. 3. Any reference in this Regulation to: (a) an event giving rise to damage shall include events giving rise to damage that are likely to occur; and (b) damage shall include damage that is likely to occur. Article 3 Universal application Any law specified by this Regulation shall be applied whether or not it is the law of a Member State. CHAPTER II TORTS/DELICTS Article 4 General rule 1. Unless otherwise provided for in this Regulation, the law applicable to a non-contractual obligation arising out of a tort/delict shall be the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur. 2. However, where the person claimed to be liable and the person sustaining damage both have their habitual residence in the same country at the time when the damage occurs, the law of that country shall apply. 3. Where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected with a country other than that indicated in paragraphs 1 or 2, the law of that other country shall apply. A manifestly closer connection with another country might be based in particular on a preexisting relationship between the parties, such as a contract, that is closely connected with the tort/delict in question. … Article 6 Unfair competition and acts restricting free competition 1. The law applicable to a non-contractual obligation arising out of an act of unfair competition shall be the law of the country where competitive relations or the collective interests of consumers are, or are likely to be, affected. 2. Where an act of unfair competition affects exclusively the interests of a specific competitor, Article 4 shall apply. 3. (a) The law applicable to a non-contractual obligation arising out of a restriction of competition shall be the law of the country where the market is, or is likely to be, affected. (b) When the market is, or is likely to be, affected in more than one country, the person seeking compensation for damage who sues in the court of the domicile of the defendant, may instead choose to base his or her claim on the law of the court seised, provided that the market in that Member State is amongst those directly and substantially affected by the restriction of competition out of which the non-contractual obligation on which the claim is based arises; where the claimant sues, in accordance with the applicable rules on jurisdiction, more than one defendant in that court, he or she can only choose to base his or her claim on the law of that court if the restriction of competition on which the claim against each of these defendants relies directly and substantially affects also the market in the Member State of that court. 4. The law applicable under this Article may not be derogated from by an agreement pursuant to Article 14. … CHAPTER III UNJUST ENRICHMENT, NEGOTIORUM GESTIO AND CULPA IN CONTRAHENDO … Article 12 Culpa in contrahendo 1. The law applicable to a non-contractual obligation arising out of dealings prior to the conclusion of a contract, regardless of whether the contract was actually concluded or not, shall be the law that applies to the contract or that would have been applicable to it had it been entered into. 2. Where the law applicable cannot be determined on the basis of paragraph 1, it shall be: (a) the law of the country in which the damage occurs, irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occurred; or (b) where the parties have their habitual residence in the same country at the time when the event giving rise to the damage occurs, the law of that country; or (c) where it is clear from all the circumstances of the case that the non-contractual obligation arising out of dealings prior to the conclusion of a contract is manifestly more closely connected with a country other than that indicated in points (a) and (b), the law of that other country. … Article 14 Freedom of choice 1. The parties may agree to submit non-contractual obligations to the law of their choice. (a) by an agreement entered into after the event giving rise to the damage occurred; or (b) where all the parties are pursuing a commercial activity, also by an agreement freely negotiated before the event giving rise to the damage occurred. The choice shall be expressed or demonstrated with reasonable certainty by the circumstances of the case and shall not prejudice the rights of third parties. 2. Where all the elements relevant to the situation at the time when the event giving rise to the damage occurs are located in a country other than the country whose law has been chosen, the choice of the parties shall not prejudice the application of provisions of the law of that other country which cannot be derogated from by agreement. 3. Where all the elements relevant to the situation at the time when the event giving rise to the damage occurs are located in one or more of the Member States, the parties’ choice of the law applicable other than that of a Member State shall not prejudice the application of provisions of Community law, where appropriate as implemented in the Member State of the forum, which cannot be derogated from by agreement … Article 24 Exclusion of renvoi The application of the law of any country specified by this Regulation means the application of the rules of law in force in that country other than its rules of private international law. … Article 28 Relationship with existing international conventions 1. This Regulation shall not prejudice the application of international conventions to which one or more Member States are parties at the time when this Regulation is adopted and which lay down conflict-of-law rules relating to non-contractual obligations. … ”
“[45] As regards the concept of ‘non-contractual obligation’, within the meaning of art.1 of the Rome II Regulation, it must be recalled that the concept of ‘matters relating to tort, delict and quasi-delict’, within the meaning of art.5(3) of the Brussels I Regulation, includes all actions which seek to establish the liability of a defendant and are not related to a ‘contract’ within the meaning of art.5(1) thereof (judgment in ÖFAB [2013] I.L.Pr. 38, [32] and the case law cited). Furthermore, it must be observed, as appears from art.2 of the Rome II Regulation, that that Regulation applies to obligations ensuing from damage, that is to say, any consequence arising out of tort/delict, unjust enrichment, ‘negotiorum gestio’ or ‘culpa in contrahendo.’ [46] In the light of the above, ‘non-contractual obligation’ must be understood as meaning an obligation which derives from one of the events listed in art.2 of that Regulation, set out in the preceding paragraph of this judgment.”
“…fraudulent and negligent misrepresentations and duress which occur during the negotiation of a contract.”
“…where…a misrepresentation is made outside contractual negotiations or where a third party relies on a representation made in connection with a contract concluded between the representor and a different party.”
“Culpa in contrahendo for the purposes of this Regulation is an autonomous concept and should not necessarily be interpreted within the meaning of national law. It should include the violation of the duty of disclosure and the breakdown of contractual negotiations. Article 12 covers only non-contractual obligations presenting a direct link with the dealings prior to the conclusion of a contract. This means that if, while a contract is being negotiated, a person suffers personal injury, Article 4 or other relevant provisions of this Regulation should apply.”
“The terminology [of recital [30]] and these various observations suggest that Art.12 will apply to claims which seek to establish the defendant’s responsibility for harmful acts or omissions, for example, non-disclosure, fraudulent or negligent misrepresentations and duress, which take place in the course of the negotiation of the contract. Accordingly other types of claim, for example a claim for the value of services provided in anticipation of a contract, may fall outside Art.12 …”
“Finally, as the principal connecting factor under Art.12 is the law applicable to a contract (or putative contract), its application may be restricted to claims between the parties (or prospective parties) to that contract, and not any third party (e.g. an agent) involved in the precontractual dealings.”
“‘As the primary connecting factor within Art 12 is the law applicable to a contract, either concluded or contemplated, there is a strong argument for restricting its scope to claims between the (intended) parties to the contract so as to exclude (for example) a claim for damages by one of the parties against the issuer of securities that he has purchased on the market or the agent of another for misrepresentation or as a false procurator. There may, of course, be good reasons for concluding that claims against an agent, whether in contract or in tort/delict, should be governed under the Rome I Regime or Art 4 of the Rome II Regulation by the law of the contract (lex contractus), especially if he has taken an active part in negotiations conducted on the basis of drafts containing a choice of law provision. Art 12, however, would appear to contemplate an existing or contemplated contractual relationship between the parties to the non-contractual obligation. That view is consistent, for example, with the approach taken under English law to liability for misrepresentation, providing a separate claim for damages as between the contracting parties only. …’.”
“‘The language of Recital (30) … reduces the significance of comparative analysis of this kind, which in any event is inconclusive. On balance, therefore, claims by or against the representatives of negotiating or contracting parties should be considered to fall outside Art 12, although the contract or supposed contract to which the agent's conduct relates should be considered as a circumstance to be taken into account in applying a flexible rule of displacement such as that in Art 4(3) of the Rome II Regulation or in identifying the law applicable under the Rome I Regime to any contract between agent and counterparty.’”
“An obligation with duties under section 241(2) [BGB – an obligation of good faith] may also come into existence in relation to persons who are not themselves intended to be parties to the contract. Such an obligation comes into existence in particular if the third party, by laying claim to being given a particularly high degree of trust, substantially influences the pre-contract negotiations or the entering into of the contract.”
“12.08 The language of recital (30) reduces the significance of comparative analysis of this kind, which in any event is inconclusive. On balance, therefore, claims by or against the representatives of negotiating or contracting parties to be considered to fall outside Art 12, although [reference to the application of art.4(3)].”
“ … misuse of confidential information is a species of unfair competition: see article 10bis of the Paris Convention for the Protection of Industrial Property read together with article 39 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”) and see also recitals (2), (16), (17) and (39) and article 3(1)(d) of Parliament and Council Directive 2016/943/EU of8 June 2016 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure.”
“Article 6(2) The second choice of law rule is concerned with where ‘an act of unfair competition affects exclusively the interests of a specific competitor’ (Article 6(2)). In other words, a specific competitor is targeted. This would, for example, encompass enticing away a competitor’s staff, corruption, industrial espionage, disclosure of business secrets or inducing [a] breach of contract. As the word, ‘exclusively’ makes clear, Article 6(2) does not apply to acts of unfair competition such as passing-off or misleading advertisement which, while targeting a specific competitor, also affect the market as a whole, in particular the decisions of the other side of the market.”
“… whether the act of unfair competition gives a competitive advantage to the defendant at the expense of a single competitor, without at the same time materially changing the conditions of competition in the market as a whole.”
“[73] The next question is whether the claim falls within art.6(2). In my view it does. The act of unfair competition alleged (passing off) affects exclusively the interests of a specific competitor ([the claimant]). It follows that art.4 applies.”
“The special rule in Article 6 is not an exception to the general rule in Article 4(1) but rather a clarification of it. In matters of unfair competition, the conflict-of-law rule should protect competitors, consumers and the general public and ensure that the market economy functions properly. The connection to the law of the country where competitive relations or the collective interests of consumers are, or are likely to be, affected generally satisfies these objectives.”
“[41] It follows from recital (21) to the Rome II Regulation that article 6(1) expresses, in the specific field of unfair competition, the lex loci damni principle laid down in article 4(1) of the Regulation.”
“A person domiciled in a member state may be sued in another member state: … (2) in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur …”
“[35] It must therefore be concluded that, where vehicles equipped by their manufacturer with software that manipulates data relating to exhaust gas emissions are sold, the damage suffered by the final purchaser is neither indirect nor purely financial and occurs when such a vehicle is purchased from a third party.”
“[39] Lastly, that interpretation satisfies the requirement of consistency laid down in recital (7) of the Rome II Regulation, in so far as, in accordance with article 6(1) thereof, the place where the damage occurs in a case involving an act of unfair competition is the place where ‘competitive relations or the collective interests of consumers are, or are likely to be, affected’. An act, such as that at issue in the main proceedings, which, by being likely to affect the collective interests of consumers as a group, constitutes an act of unfair competition (Verein für Konsumenteninformation v Amazon EU Sàrl (Case C-191/15 ), para 42), may affect those interests in any member state within the territory of which the defective product is purchased by consumers. Thus, under the Rome II Regulation, the place where the damage occurs is the place in which such a product is purchased (see, by analogy, Tibor-Trans , para 35).”
“[64] Seventhly, as counsel for Celgard pointed out, the effect of Senior’s argument is that, where party A based in country X, which has weak trade secrets protection, misuses party B’s trade secrets to manufacture goods, and then puts the goods on the market in an EU country, the law of country X would apply to the exclusion of the law of the EU country. As counsel for Celgard submitted, this is an improbable result given that the Trade Secrets Directive is designed to strengthen protection against misuse of trade secrets ‘whether from within or from outside the Union’ (recital (4)) and that it explicitly contemplates that measures should be granted which include ‘the prohibition of the importation of [infringing] goods into the Union’ (recital (28)). Admittedly, the Rome II Regulation and the Trade Secrets Directive are different pieces of legislation, but it seems unlikely that one should be interpreted in a way that undermines the objectives of the other unless this is mandated by the wording, which is not the case.”
“This may be one point where principle may ultimately yield to pragmatism, particularly in cases (such as a claim for non-monetary remedies) where the fragmented application of the laws of several countries may be impossible or exceedingly difficult. In such cases, the temptation may be to avoid this theoretical difficulty by seeking to locate the ‘direct’ damage in a single country or by making use of the ‘escape clause’ in Art.4(3) of the Regulation.”
“Article 435 1. An offer is a proposal addressed to one or several specific persons, that is sufficiently definite and expresses the intent of the person who has made the proposal to consider himself having concluded a contract with the addressee by whom the proposal will be accepted. The offer must contain the essential terms of the contract. 2. The offer binds the person who sent it from the moment it is received by the addressee. If a notice of revocation of the offer was received earlier or simultaneously with the offer itself, the offer is considered not received.”
“1. Acceptance is the response of the person to whom the offer is addressed regarding its acceptance. The acceptance must be complete and unconditional. 2. Silence does not constitute acceptance, unless otherwise follows from the law, business customs or from the previous business relationship of the parties. 3. The performance by the person who received the offer, within the time period established for its acceptance, of actions to fulfil the terms of the contract specified in it (shipment of goods, provision of services, performance of work, payment of the corresponding amount, etc.) is considered acceptance, unless otherwise provided by law, other legal acts or is not specified in the offer.”
“Non-observance of the simple written form of a transaction shall deprive parties of the right, in case of a dispute, to rely for confirmation of the transaction and its terms upon the testimony of witnesses, but shall not deprive them of the right to adduce written and other evidence.”
“Non-observance of the simple written form of a foreign economic transaction shall entail the invalidity of the transaction.”
“If one agrees with the stated position of the tax body, then Open JointStock Company Tisma, in concluding a contract of sale of its goods with a buyer must inform it about with whose assistance Tisma was able to conduct such actions, which does not correspond to the customs and rules of commerce. On the contrary, commercial entities try, as a rule not to disclose the measures taken (conduct of marketing research of the market, search for buyers, preparation of the necessary documentation) preceding the conclusion of a contract with another party so as to maintain its business reputation.”
“… actions of citizens and legal persons taken exclusively with the intention to cause harm to another person are not allowed, nor is the abuse of a legal right allowed in other forms.”
“1. The law of the country where the action or other circumstance took place that served as the basis for the claim for compensation for harm shall be applied to obligations arising as the result of causing harm. In the case when, as the result of such an action or other circumstance, the harm occurred in another country, the law of that country may be applied if the one who caused the harm foresaw or should have foreseen the occurrence of harm in that country. 2. If the parties are citizens or legal persons of one and the same country, the law of that country shall be applied to obligations arising as the result of causing harm abroad. In the case when the parties to such an obligation are not citizens of one and the same country, but have their place of residence in one and the same country, the law of that country shall be applied. 3. After the taking of the action or the occurrence of another circumstance entailing the causing of harm, the parties may agree on the application to the obligation that arose as the result of causing harm of the law of the country of the court.”
“The following shall be determined, in particular, on the basis of the law applicable to obligations arising as the result of causing harm: 1) the capacity of a person to bear liability for harm caused; 2) the imposition of liability for harm upon a person who was not the one who caused harm; 3) the bases of liability; 4) the bases of limitation of liability and for freeing from it; 5) the means of compensation for harm; 6) the scope and amount of compensation for harm.”
“Overall, my view is that the Skilled Engineer would consider Ten Hompel as simply propagating conventional aisle-based thinking whilst introducing additional unresolved challenges. Ten Hompel does not provide any obvious advantages that would make it worth trying to meet these challenges. Accordingly, I believe that Skilled Engineer would not be motivated to take it further.”
“All of this means Ten Hompel is an unattractive starting point – which explains why nobody in real life ever did anything with it.”
“I accept that the skilled person must be deemed to consider any piece of prior art properly and in that sense with interest. This emerges clearly from the decision of the Court of Appeal in Asahi Medical Co Ltd v Macopharma (UK) Ltd[2002] EWCA Civ 466 and is necessary to prevent a patent from depriving the public of their right [to] make or do anything which is merely an obvious modification of what has been done or published before. But the law does not deem the skilled person to assume the prior art has any relevance to the problem he is addressing or require him to take it forward. Having considered it, he may conclude that it is simply not a worthwhile starting point and so put it to one side.”
“[0004] In order to solve this problem, the goal of the invention is to create a solution, which allows for extremely flexible storage and distribution of goods and the use of shuttle vehicles, which, in particular, can reach practically every storage point independently from each other. [0005] … this task is solved, according to the invention, by equipping the storage with storage positions arranged in horizontal planes that can be acted on via the horizontal service planes with vertical access of service devices.”
“[0006] A particular recognizable benefit of this invention lies in the way the shelf service technology accesses storage units. Instead of a lineby-line arrangement of storage compartments (single- or multi-level in depth) with the respective storage and retrieval from the side (the shelf front), the storage compartments are arranged by levels, and the access to storage units takes place from above or from below or from above and below.”
“[0008] The invention also provides that the storage positions in the ceiling plane are equipped with semiautomatic or automatic locking and unlocking devices for storage units that need to be placed in storage, such as palettes, containers or the like, wherein, for example, as already known from other storage solutions, a further embodiment of the invention is storing units in multiple layers above each other in one storage position. [0009] Depending upon the structure and design of the storage system according to the invention, the service devices may be driving along the rails located in the horizontal plane in length and width directions, wherein, as already provided by the invention, a different option according to the invention is that the service vehicles are freely propelled by chain drive or the like in the horizontal plane between the storage planes.”
“[0007] ... Embodiments may provide that the storage system has at least one level of storage positions in the floor plane and/or at least one level of storage positions in the ceiling plane, wherein service vehicles can drive between the floor and ceiling planes.”
“[0009] Depending upon the structure and design of the storage system according to the invention, the service devices may be driving along the rails located in the horizontal plane in length and width directions, wherein, as already provided by the invention, a different option according to the invention is that the service vehicles are freely propelled by chain drive or the like in the horizontal plane between the storage planes.”
“[0004] However, with this known system each vehicle is covering a cross section of the underlying storage system that corresponds to two storage columns, thereby limiting the maximum number of simultaneously operating vehicles. [0005] It is thus an object of the present invention to provide a vehicle and a storage system that allows a significant increase in the number of simultaneously operating vehicles during successful handling of storage bins.”
“However, the ‘rolling set specific driving force’ can allow the function of synchronizing the driving force in each rolling set. Should the driving force in each of these two rolling sets by unsynchronized, that would impose torque on the vehicle, causing it to attempt to turn on the tracks of the rails. That may additionally cause wear on the wheels and could result in vehicles clashing as they pass one another.”