Katie Graham is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

A dated August 5, 2022 from the United Kingdom’s High Court of Justice has the potential to expand the definition of “artistic works of craftmanship” under UK copyright law. Deputy High Court Judge Stone rejected a motion by the defendants, Liking Ltd. (“Liking”), to strike out Water Rower (UK) Ltd.’s (“WaterRower”) claim for copyright infringement in its WaterRower water resistance rowing machine on the basis that the machine is not a “work of artistic craftmanship” within the UK’s .

The Facts at Issue

As a member of the 1975 US National Rowing Team and having studied naval architecture, including wooden boat design, John Duke sought to design a wooden rowing machine in which the user has a “welcome emotional connection, as they would with a piece of furniture”. The first versions of this machine were developed between 1985 and 1987 and, since this time, there have been eight iterations of the WaterRower and it has grown to be an “iconic design” in the UK and US. Liking admitted to copying the eighth iteration of the WaterRower in creating its rival rowing machine, the TOPIOM Model 1. However, Liking argued that since the WaterRower could not be considered a “work of artistic craftmanship,” no copyright subsists in the WaterRower.

Court’s Decision

While the Court did not ultimately conclude whether the WaterRower is a “work of artistic craftmanship” under copyright law, Judge Stone ruled that the question of whether the WaterRower could be considered as such is one that requires a full trial and cannot be determined in summary judgment. This ruling was based on the leading House of Lords authority on works of artistic craftmanship, George Hensher Ltd v Restawile Upholstery (Lancs) Ltd.[1] Though Hensher provides a less than clear definition of what constitutes works of artistic craftmanship, Judge Stone considered that:

1. The artist’s intention is relevant to whether a work is artistic, and there is evidence about Mr. Duke’s intention as a craftsman; and
2. It is unclear that the WaterRower is less artistic than the examples of artistic works given by Lord Simon in Hensher, including hand-painted tiles and stained-glass windows.

As such, Judge Stone rejected Liking’s argument under Hensher that, on any view, WaterRower has no real prospect of proving their machine is artistic.

What could this mean for UK and Canadian copyright law?

If the WaterRower is found to be an artistic work of craftmanship at trial, this would indicate that the UK courts are adopting a more flexible definition of “artistic”, especially in relation to functional works that are generally considered more congruent with the patent framework.

In Canadian copyright law, works of artistic craftmanship are generally limited to those “intended to have an appeal to the aesthetic senses” (). Given the evidence of John Duke’s intention to create a wooden rowing machine that evokes emotion, the argument could be made that the aesthetic features of the WaterRower are protected under the Canadian copyright regime. However, since the WaterRower has been mass produced for the fitness industry in Canada, the Canadian would intervene and only permit the aesthetic features of the useful machine to be protected, so long as these features are distinctive. To date, neither WaterRower or Liking have applied for design protection in Canada, though other rowing machine designs  have previously been registered in Canada.

[1] George Hensher Ltd v Restawile Upholstery (Lancs) Ltd [1976] AC 64 (“Hensher”).

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Katie Graham is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.

Sonos achieved a major milestone in their Canadian patent battle against Google, which follows several rulings in favour of Sonos in their corresponding US litigation (previously published in the IPilogue ).

In an infringement action against Google LLC (“Google”) dated August 15, 2022, Justice Zinn of the Federal Court of Canada in favour of the defendants, Sonos, Inc. (“Sonos”). This case concerns the infringement of Claim 7 of Canadian Patent No. (“150 Patent”) relating to Google’s method and apparatus for adaptive echo and noise control. Sonos counterclaimed, alleging that Claim 7 of the 150 Patent is invalid for obviousness and lack of invention.

The Court held:

1. Sonos does not directly infringe Claim 7 of the 150 Patent;
2. Sonos does not indirectly infringe Claim 7 of the 150 Patent by inducing users to infringe; and
3. Claim 7 of the 150 Patent is valid.

This decision follows the of Sonos’ motion for summary judgment in March 2021, where Sonos alleged that Google made factual admissions in a corresponding US proceeding related to the infringement of US Patent No. , for which the 150 Patent claims priority. Justice Southcott of the Federal Court of Canada rejected Sonos’ arguments that Google’s voluntary dismissal in the US action represented an admission of non-infringement or eliminated any genuine issue for trial.

BACKGROUND

Claim 7 of the 150 Patent, owned by Google, details a method and device for echo and noise control in a device that adaptively determines an order of noise suppression and echo cancellation based on noise in the input signal. This patent allows for voice assistants in smart speakers, such as Amazon Alexa and Google Assistant, to change how much background noise is filtered out (i.e., noise suppression) when addressing a user’s commands, also referred to as “echos” (i.e., echo cancellation). Google claimed that five of Sonos’ products (collectively, “Sonos Devices”), all of which are compatible with Amazon Alexa and Google Assistant, infringed Claim 7 of the 150 Patent.

CLAIM CONSTRUCTION

In constructing Claim 7, Google and Sonos’ experts disagreed on whether echo cancellation is a subset of noise suppression or whether these terms are mutually exclusive. Google submitted that “noise”, as confined to the asserted claim, was to be interpreted generally to include all background sound and user commands. In contrast, Sonos interpreted “noise” more narrowly to include only background sound, not user commands. Justice Zinn sided with Sonos to interpret noise in the narrow sense, thus concluding that echo cancellation and noise suppression are mutually exclusive processes.

INFRINGEMENT

Direct Infringement: Justice Zinn succinctly shut down Google’s claim that the Sonos devices directly infringe the 150 Patent. Out of the box, the Sonos devices are simply speakers and do not have voice assistants set up and configured. The essential elements of Claim 7, echo cancellation or noise suppression, require user activation of the compatible voice assistants. Thus, the court held that Sonos does not directly infringe Claim 7 of the 150 Patent.

Indirect Infringement: The Court focussed on considering whether Sonos indirectly infringed Claim 7 of the 150 Patent by inducing their users to enable Amazon Alexa or Google Assistant.  Justice Zinn sided with Sonos in finding that their technologies are not configured to adaptively adjust these elements based on input noise as described in Claim 7 of the 150 Patent. Instead, these processes are user controlled or done in a pre-determined manner. Consequently, the court held that Sonos did not indirectly infringe Claim 7 of the 150 Patent.

INVALIDITY

Justice Zinn used the approach outlined in Apotex Inc v Sanofi-Synthelabo Canada Inc, to assess the obviousness of the patent. Google and Sonos generally agreed on the person skilled in the art, common general knowledge, and the inventive concept of the claim. Sonos relied heavily on US Patent No. ("871 Patent”) as prior art to assert that it would have been obvious for a skilled person to make the claimed invention in the 150 Patent. The Court rejected this argument, accepting Google’s submission that the skilled person would not easily come up with the 871 Patent and, therefore, the 150 Patent is not invalid for obviousness.

NEXT STEPS

Google has yet to appeal this decision. A few days prior to the decision, Google announced against Sonos regarding voice control technologies.

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