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England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Ultraframe (UK) Ltd v Eurocell Building Plastics Ltd & Anor  1785 EWHC (Ch) (22 July 2004)
Cite as:  1785 EWHC (Ch)
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Strand, London, WC2A 2LL
B e f o r e :
| ULTRAFRAME (UK) LTD
|- and -
|EUROCELL BUILDING PLASTICS LIMITED
EUROCELL PROFILES LIMITED
Simon Thorley QC, Tom Mitcheson (instructed by Martineau Johnson) for the Defendants
Hearing dates : 5th, 6th, 7th, 8th, 9th July 2004
Crown Copyright ©
Mr Justice Lewison:
i) Their system falls outside the scope of the monopoly claimed by the patent;
ii) And anyway the patent is invalid because:a) The patented invention was not novel, but had been anticipated by previous publications;b) Or if it was not anticipated, it was obvious.
i) Ultraframe's designs are not original, but were copied;
ii) Anyway, the designs were commonplace at the time that they were created;
iii) Parts of the designs in which Ultraframe say they have design right are outside the scope of design right because they fall within the so-called "must fit" and "must match" exclusions from design right;
iv) Eurocell's designs were themselves original, and were not copied from Ultraframe's designs, so that there has been no infringement.
"Dual pitch" conservatories
"Steep lean-to" conservatories
Low-pitch roofs of less than around 5°
Other products and designs current in the early 1990s
Ultralite 500: the design process
What is clever about Ultralite 500?
Design changes in 1995
"Once we had decided that that was what we were going to do, it was a question of looking at competitor's systems, making sure that we were aware of exactly what the competition could do and what it could not do and any strengths and weaknesses of their systems."
"In terms of strengths and weaknesses, we were aware of many of the features within the Ultralite 500 system which we felt could be improved on. We noticed that the rafter top caps on Ultralite 500 actually pass through the wall [plate] top cap, which is notched to suit the contour of those top caps, adding unnecessary costs. The wall plate top cap is fitted last, meaning the fitter has to climb over the roof to fit it. The eaves closure trim is very difficult to assemble. Having spoken with our Technical Department, they have found this very difficult to assemble on site. The drip trim is supplied in short lengths, and one for every panel is needed, meaning eight trims are needed for a 4m wide conservatory. The non modular cutting of the panel specifies a block of wood to support the panel along its cut length. All of the above were perceived weaknesses with the Ultralite 500 system and we spent a considerable time solving all of the above."
"Q. You basically based it on the Ultralite 500, did you not?
A. I suppose you could say that. It was aimed to compete with the Ultralite 500. We can argue about that for some time but it was there to compete with Ultralite 500.
Q. You took the Ultralite 500 and thought about various changes, some of which you discarded, a couple you incorporated, but the rest of it was basically you took the Ultralite design?
A. Yes, I suppose so; yes."
i) "The size of the rafter itself had to be sufficiently strong to bear the loads so the height of it almost determines itself." Mr Redshaw had to accept in cross-examination that the strength of an I-beam can be significantly increased by increasing the width of the horizontal planes, rather than by increasing its height; so that the height did not determine itself;
ii) "The choice of 500mm wide was automatic, given the modular nature of the products intended market eg 3m, 3.5m, 4m, etc. For example, a 4m wide roof needs 8 panels. There were other panels such as Ultraframe's Ultralite 250 on the market in the early 1990's, which were approximately 250mm wide and so 500mm was a natural progression." This seems to suggest that the decision to specify a width of 500 mm was arrived at without reference to Ultralite 500. But not only was Ultralite 500 the obvious comparator (since Pinnacle 500 was specifically intended to compete with it), but as Mr Redshaw said, he had a sample of the Ultralite 500 panels and "it would have been daft not to refer to it, not to play around with it or twist or bend some of the components". As Mr Rick (who was also part of the Eurocell design team) put it; "it was a 500 panel, as per the Ultralite 500, yes."
iii) At the time that the Eurocell design team were designing Pinnacle 500, Eurocell was the biggest distributor of Ultralite 500. Given that Pinnacle 500 was specifically designed as a competitor to Ultralite 500, and given also that Eurocell examined its competitors' products, I found unconvincing the evidence that the Eurocell design team did not have a complete Ultralite 500 system to examine.
"There are only certain ways in which top caps and end caps can be designed so as to cloak the aluminium. To go around a rafter for example, the top cap has to be roughly the same profile as the rafter. The end caps then follow the outline of the top caps. There is nothing innovative about top caps and end caps which have been used on conservatories for years. Top caps generally have a slight flat top section and angled legs towards the panel."
"I then went over to the stand to have a closer look at the mock conservatory with what I thought was an Ultralite 500 roof installed on top of it. It was only on closer inspection of the product that I realised that it was slightly different from our own low-pitch roof and that Eurocell had obviously manufactured it themselves. I was quite shocked that despite training people and working with the Ultralite 500 on a daily basis I couldn't actually tell that this was a different product to our Ultralite 500 until I started examining the product at close range. I had never ever seen anything as close to our system before. I recall saying to myself at the time that it was as close a match as you would ever get."
"Each of these elements has to be secured, usually by means of screws, before the next element can be connected, which can be time-consuming and does not readily permit later adjustments of element positions.
Furthermore, there is a limit to the reasonable span of such elements for strength purposes. Even multiple duct elements have a limited span because they have main ducts based on single duct elements which themselves have a structural limit on their widths.
An object of this invention is to provide an improved building structure."
"a structure comprising hollow building elements of plastics material coupled together side by side, the elements comprising flat top and bottom walls, vertical end and intermediate walls and an intermediate wall between and parallel to the top and bottom walls to form a plurality of rectangular ducts in two layers one on top of the other, the elements further comprising integral coupling members on opposite sides, wherein the lower coupling members comprise formations that interengage with formations of neighbouring elements and are held together by a stiffening member between the elements."
"Preferred lower coupling members of building elements comprise a first member that is a horizontal channel into which a second member fits, the stiffening beam having a formation which fits over the said engaged first and second members to hold them together."
"The stiffening beam 40, preferably extruded from aluminium, has upper and lower formations 42 and 44 respectively whereby adjacent building elements 10 are held together. The lower formation 44 comprises a downwardly opening channel 46 having a pair of opposed internal projections 48 that extend towards each other but do not meet. The formation 44 is sized so that when the lower coupling elements of adjacent building elements are brought together they fit between the projections 48 thereby holding them together."
"To construct a roof using building elements 10, the elements are laid side-by-side on a structure providing support at opposite ends of the elements with their lower elements engaged. A stiffening beam 40 is then slid into the space between the elements to fix the lower coupling members and engage the upper coupling members of the elements."
"A structure comprising hollow building elements of plastics material coupled together side by side, the elements comprising flat top and bottom walls, vertical end and intermediate walls and an intermediate wall between and parallel to the top and bottom walls to form a plurality of rectangular ducts in two layers one on top of the other, the elements further comprising integral coupling members on opposite sides, wherein the lower coupling members comprise formations that interengage with formations of neighbouring elements and are held together by a stiffening member between the elements."
"A structure as claimed in claim 1 or 2, wherein a lower coupling member comprises a first member that is a horizontal channel into which a second member fits, the stiffening beam having a formation that fits over the said engaged first and second members to hold them together."
"the elements further comprising integral coupling members on opposite sides, wherein the lower coupling members comprise formations that interengage with formations of neighbouring elements and are held together by a stiffening member between the elements."
Interpretation of the patent
"(1) For the purposes of this Act an invention for a patent for which an application has been made or for which a patent has been granted shall, unless the context otherwise requires, be taken to be that specified in a claim of the specification of the application or patent, as the case may be, as interpreted by the description and any drawings contained in that specification, and the extent of the protection conferred by a patent or application for a patent shall be determined accordingly.
(3) The Protocol on the Interpretation of Article 69 of the European Patent Convention (which Article contains a provision corresponding to subsection (1) above) shall, as for the time being in force, apply for the purposes of subsection (1) above as it applies for the purposes of that Article."
"Article 69 should not be interpreted in the sense that the extent of the protection conferred by a European patent is to be understood as that defined by the strict, literal meaning of the wording used in the claims, the description and drawings being employed only for the purpose of resolving an ambiguity found in the claims. Neither should it be interpreted in the sense that the claims serve only as a guideline and that the actual protection conferred may extend to what, from a consideration of the description and drawings by a person skilled in the art, the patentee has contemplated. On the contrary, it is to be interpreted as defining a position between these extremes which combines a fair protection for the patentee with a reasonable degree of certainty for third parties."
"what would in fact be known to an appropriately skilled addressee - the sort of man, good at his job, that could be found in real life."
General Tire & Rubber Co v. Firestone Tyre & Rubber Co Ltd  R.P.C. 457 at 482.
i) A patent is interpreted objectively, through the eyes of a skilled addressee;
ii) The court must have regard to the background as it existed at the date of publication of the patent;
iii) The court should admit evidence of technical terms;
iv) The patent must be read as a whole, both the body of the specification (together with any drawings) and the claims;
v) The court must adopt an interpretation which gives effect to the purpose of the author, judging the purpose from the language of the patent and the available background.
Glaverbel SA v. British Coal Corp.  R.P.C. 255
"If the issue was whether a feature embodied in an alleged infringement which fell outside the primary, literal or acontextual meaning of a descriptive word or phrase in the claim ("a variant") was nevertheless within its language as properly interpreted, the court should ask itself the following three questions:
(1) Does the variant have a material effect upon the way the invention works? If yes, the variant is outside the claim. If no--
(2) Would this (i.e. that the variant had no material effect) have been obvious at the date of publication of the patent to a reader skilled in the art. If no, the variant is outside the claim. If yes--
(3) Would the reader skilled in the art nevertheless have understood from the language of the claim that the patentee intended that strict compliance with the primary meaning was an essential requirement of the invention. If yes, the variant is outside the claim.
On the other hand, a negative answer to the last question would lead to the conclusion that the patentee was intending the word or phrase to have not a literal but a figurative meaning (the figure being a form of synecdoche or metonymy) denoting a class of things which included the variant and the literal meaning, the latter being perhaps the most perfect, best-known or striking example of the class."
"There is normally no reason to suppose the patentee when he set the limits of his monopoly knew of a particular piece of prior art which is therefore irrelevant in deciding what those limits are. Of course the position is different if the prior art is specifically acknowledged in the patent. The purposive construction would lead to a construction of a claim which did not cover that acknowledged prior art: it can hardly have been the inventor's purpose to cover that which he expressly recognises was old."
"First, in respect of contracts and contractual notices the contextual scene is always relevant. Secondly, what is admissible as a matter of the rules of evidence under this heading is what is arguably relevant. But admissibility is not the decisive matter. The real question is what evidence of surrounding circumstances may ultimately be allowed to influence the question of interpretation. That depends on what meanings the language read against the objective contextual scene will let in."
(Mannai Investment Co Ltd v. Eagle Star Life Assurance Co Ltd  AC 749 at 768 per Lord Steyn).
"The notional addressee is not expected to find the patentee's presumed intention from the specification."
"Furthermore, the patentee may choose a form of language which emphasises which features of an invention are important and which are not. For example it is common to find claims which start with general description followed by "characterised in" followed by a list of features. The addressee would appreciate that the latter features are particularly important but the features before the words "characterised in" are less so. If there is a variant to the latter which obviously does not affect the way in which the invention works, the notional reader may be reasonably confident that the inventor wanted to cover this variant as well. In these types of cases, the monopoly is likely to extend to the new variant."
Interpretation of the patent in suit
i) If you were fixing roofing panels for a lean-to conservatory you would fix them one at a time;
ii) While you were fixing them you would be working above your head;
iii) To fix them at all (if you were working on your own) you would need to support one end of the panel at the wall-plate (against the wall of the main building) and the other end on the front frame of the conservatory;
iv) Each panel would invariably have some flexibility, as well as uneven edges produced either by the extrusion process, or their subsequent treatment on site or in transport. The extruded plastic panels would often be "laterally bowed" (caused by thermal shrinkage in extrusion) i.e. would be slightly banana shaped along their length;
v) When the first panel was fixed in place, it would be very difficult to 'line up' the next panel all the way along its length especially if you had to engage the second panel at an angle to the first;
vi) Because of these characteristics of extruded plastic panels, it was difficult for the manufacturer to achieve exactness, and tolerances would be expected.
"Of part of a mechanism: come into contact with or fit into a corresponding part, so as to prevent or transmit movement, cause to do this; interlock."
"(engage with) establish a meaningful contact or connection with (of a part of a machine or engine) move into position so as to come into operation".
"To construct a roof using building elements 10, the elements are laid side-by-side on a structure providing support at opposite ends of the elements with their lower elements engaged."
"A stiffening beam 40 is then slid into the space between the elements to fix the lower coupling members and engage the upper coupling members of the elements".
"The formation 44 [i.e. the lower part of the stiffening bar] is sized so that when the lower coupling elements of adjacent building elements are brought together they fit between the projections 48 [i.e. the projections in the stiffening bar] thereby holding them together."
" because there is no other means to keep them together when you are working with long lengths of propyl overhead with those formations. They just would not sit there waiting for the additional member."
"A structure as claimed in claim 1 or 2, wherein a lower coupling member comprises a first member that is a horizontal channel into which a second member fits, the stiffening beam having a formation that fits over the said engaged first and second members to hold them together."
"wherein the lower coupling members comprise formations that interengage with formations of neighbouring elements and are held together by a stiffening member between the elements."
"Each of these elements has to be secured, usually by means of screws, before the next element can be connected, which can be time-consuming and does not readily permit later adjustments of element positions."
"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."
"If the prior inventor's publication contains a clear description of, or clear instructions to do or make, something that would infringe the patentee's claim is carried out after the grant of the patentee's patent, the patentee's claim will have been shown to lack the necessary novelty, that is to say, it will have been anticipated. The prior inventor, however, and the patentee may have approached the same device from different starting points and may for this reason, or it may be for other reasons, have so described their devices that it cannot be immediately discerned from a reading of the language which they have respectively used that they have discovered in truth the same device; but if carrying out the directions contained in the prior inventor's publication will inevitably result in something being made or done which, if the patentee's patent were valid, would constitute an infringement of the patentee's claim, this circumstance demonstrates that the patentee's claim has in fact been anticipated.
If, on the other hand, the prior publication contains a direction which is capable of being carried out in a manner which would infringe the patentee's claim, but would be at least as likely to be carried out in a way which would not do so, the patentee's claim will not have been anticipated, although it may fail on the ground of obviousness. To anticipate the patentee's claim the prior publication must contain clear and unmistakable directions to do what the patentee claims to have invented."
"An invention shall be taken to involve an inventive step if it is not obvious to a person skilled in the art, having regard to any matter which forms part of the state of the art by virtue only of section 2(2) above "
"The first is to identify the inventive concept embodied in the patent in suit. Thereafter, the court has to assume the mantle of the normally skilled but unimaginative addressee in the art at the priority date and to impute to him what was, at that date, common general knowledge in the art in question. The third step is to identify what, if any, differences exist between the matter cited as being "known or used" and the alleged invention. Finally, the court has to ask itself whether, viewed without any knowledge of the alleged invention, those differences constitute steps which would have been obvious to the skilled man or whether they require any degree of invention."
"Instead of the panels being linked together, and then the beam being added the stiffening member was given an active role which meant that the panels did not already have to be linked in place. In order to perform this active role the stiffening member is shaped to hold the formations of the lower coupling members together. Instead of the installer fabricator having to do the difficult job first before he added the stiffening member, the action of inserting the stiffening member did the difficult job for him. Using the stiffening member itself to perform this active role was something which went against the grain."
"The approach in the Ultralite 250 Patent was that the panels would be linked together directly to each other. This was the customary approach, as can be seen from the other pieces of prior art cited by the Defendants which are discussed below. The stiffening member was then added to give extra stiffness and strength to the panel. The stiffening member was an "I -section" in a simple shape to provide maximum strength at minimum cost. When considering a new design for the connections between two panels, the design team would therefore concentrate on the interlocking formations, not the stiffening bar. It is true that the stiffening member had a limited "locking" role, in that it prevented the panels from being unlinked whilst the stiffening member is in place, however, its role was a passive one which was secondary to its principal role as a stiffening beam."
"(1) Design right is a property right which subsists in accordance with this part in an original design.
(2) In this Part "design" means any aspect of the shape and configuration (whether internal or external) of the whole or any part of an article.
(3) Design right does not subsist in -
(a) a method or principle of construction,(b) features of shape or configuration of an article which -(i) enable the article to be connected to, or placed in, around or against, another article so that either article may perform its function,(ii) are dependent upon the appearance of another article of which the article is intended by the designer to form an integral part,
(4) A design is not "original" for the purposes of this Part if it is commonplace in the design field in question at the time of its creation.
(6) Design right does not subsist unless and until the design has been recorded in a design document or an article has been made to the design."
"(1) It should compare the design of the article in which design right is claimed with the design of other articles in the same field, including the alleged infringing article, as at the time of its creation.
(2) The court must be satisfied that the design for which protection is claimed has not simply been copied (e.g. like a photocopy) from the design of an earlier article. It must not forget that, in the field of designs of functional articles, one design may be very similar to, or even identical with, another design and yet not be a copy: it may be an original and independent shape and configuration coincidentally the same or similar. If, however, the court is satisfied that it has been slavishly copied from an earlier design, it is not an "original" design in the "copyright sense" and the "commonplace" issue does not arise.
(3) If the court is satisfied that the design has not been copied from an earlier design, then it is "original" in the "copyright sense". The court then has to decide whether it is "commonplace". For that purpose it is necessary to ascertain how similar that design is to the design of similar articles in the same field of design made by persons other than the parties or persons [connected] with the parties.
(4) This comparative exercise must be conducted objectively and in the light of the evidence, including evidence from experts in the relevant field pointing out the similarities and the differences, and explaining the significance of them. In the end, however, it is for the court and not for the witnesses, expert or otherwise, to decide whether the design is commonplace. That judgment must be one of fact and degree according to the evidence in each particular case. No amount of guidance given in this or in any other judgment can provide the court with the answer to the particular case. The closer the similarity of the various designs to each other, the more likely it is that the designs are commonplace, especially if there is no causal link, such as copying, which accounts for the resemblance of the compared designs. If a number of designers working independently of one another in the same field produce very similar designs by coincidence the most likely explanation of the similarities is that there is only one way of designing that article. In those circumstances the design in question can fairly and reasonably be described as "commonplace". It would be a good reason for withholding the exclusive right to prevent the copying in the case of a design that, whether it has been copied or not, it is bound to be substantially similar to other designs in the same field.
(5) If, however, there are aspects of the plaintiff's design of the article which are not to be found in any other design in the field in question, and those aspects are found in the defendant's design, the court would be entitled to conclude that the design in question was not "commonplace" and that there was good reason for treating it as protected from misappropriation during the limited period laid down in the 1988 Act. That would be so, even though the design in question would not begin to satisfy any requirement of novelty in the registered designs legislation."
"The combination of features left after individual features are excluded under those provisions is the design in issue. If that combination of features is commonplace, the design is not protected."
"The proprietor can choose to assert design right in the whole or any part of his product. If the right is said to reside in the design of a teapot, this can mean that it resides in design of the whole pot, or in a part such as the spout, the handle or the lid, or, indeed, in a part of the lid. This means that the proprietor can trim his design right claim to most closely match what he believes the defendant to have taken."
"I believe that the Ultralite 500 system was groundbreaking because it was really the first time that a designer had designed a system specifically for low-pitch conservatory roofs and had given any great thought to the whole package of the roof, including the panels, the top caps and end caps and so forth. Those roofs made with 'modular' panels before this date had not been designed as a whole package in which each component complemented the others. The assembly of the Ultralite 500 system as a whole has an expensive feel it was a substantial step forward from what was previously available."
"To me in 1992 (and even today) the whole design of the Ultralite 500 system and the individual elements of it, stood out immediately (and still stand out) from the alternatives that were available."
"Take the simplest case of artistic copyright, a painting or a photograph. It takes great skill, judgment and labour to produce a good copy by painting or to produce an enlarged photograph from a positive print, but no one would reasonably contend that the copy painting or enlargement was an "original" artistic work in which the copier is entitled to claim copyright. Skill, labour or judgment merely in the process of copying cannot confer originality. In this connection some reliance was placed on a passage from the judgment of Whitford J. in L.B. (Plastics) Ltd. v. Swish Products Ltd.  R.P.C. 551, 568-569, where he expressed the opinion that a drawing of a three-dimensional prototype, not itself produced from the drawing and not being a work of artistic craftsmanship, would qualify as an original work. That may well be right, for there is no more reason for denying originality to the depiction of a three-dimensional prototype than there is for denying originality to the depiction in two-dimensional form of any other physical object. It by no means follows, however, that that which is an exact and literal reproduction in two-dimensional form of an existing two-dimensional work becomes an original work simply because the process of copying it involves the application of skill and labour. There must in addition be some element of material alteration or embellishment which suffices to make the totality of the work an original work. Of course, even a relatively small alteration or addition quantitatively may, if material, suffice to convert that which is substantially copied from an earlier work into an original work. Whether it does so or not is a question of degree having regard to the quality rather than the quantity of the addition. But copying, per se, however much skill or labour may be devoted to the process, cannot make an original work. A well executed tracing is the result of much labour and skill but remains what it is, a tracing. Moreover it must be borne in mind that the Copyright Act 1956 confers protection on an original work for a generous period. The prolongation of the period of statutory protection by periodic reproduction of the original work with minor alterations is an operation which requires to be scrutinised with some caution to ensure that that for which protection is claimed really is an original artistic work."
i) The overall shape and configuration of the panel;
ii) The width, height and relative configuration of the panel;
iii) The size, shape and positioning of the individual ducts;
iv) The shape and configuration of the pre-cut drip overhang;
v) The upstands at the top of each panel;
vi) The light diffusing ribs on the upper face of the lower wall of each panel.
i) Triple-wall polycarbonate and uPVC sheeting was well-known in the early 1990s and can fairly be said to have been commonplace. But it was not commonly used in conservatory roofs (as opposed to industrial roofs), and consequently it was commonplace in a different design field. Moreover, triple-walled polycarbonate and uPVC sheeting was not usually more than 16 mm deep, and was sold in large sheets;
ii) Plastic panels of a depth between 60 mm and 70 mm were (and are) commonplace in the design of conservatory roofs;
iii) The stock lengths were (and are) commonplace;
iv) Rectangular ducts in plastic panels were (and are) commonplace in the design of conservatory roofs;
v) The dimensions of the pre-cut drip overhang were (and are) commonplace in the design of conservatory roofs;
vi) Light diffusing ribs or "pips" were (and are) commonplace in the design of conservatory roofs.
"I do not think that the shape of the combination of the panel and the pre-cut drip cutaway was commonplace. Because the shape of the Ultralite 500 panel was very different from those panels that had gone before it (they had curved upper surfaces for example), the shape that remained after the 'pre-cut' section was cut away was very different from the shape of, for example, the Ultralite 250 with the pre-cut drip overhang. The section of the panel that remains after the pre-cut section has been removed is highly visible to the consumer and is a distinctive aspect of the design of the panel and of the assembly."
"Most of the other panels available have "corrugated" top surfaces which give the roofs made from those panels a "lumpy" profile when viewed head on or from above. This obviously creates a very different impression to the flat surfaces of the Ultralite 500 and Pinnacle 500 panels. This feature is even more pronounced when the panels are all assembled together, because apart from the very small lip which covers the join between panels, the whole bottom inside surface of the roof is flat, which was very unusual and gives a very pleasing aesthetic effect."
"I do not believe that the very minor differences in dimensions are significant. The proportions appear identical to the eye. The proportional ratios of width to depth to length in relation to the Ultraframe 500 panel (for each stock length) are almost identical to the Pinnacle 500 ratios (for each stock length)."
"Other than the central duct, which is slightly narrower in the Ultralite 500 panel, the number of ducts is the same, and their size, shape and positioning is overall very similar. Again, without looking closely it is very difficult to tell the two apart."
"From a design point of view, I believe that the shape and configuration of the combination of the pre-cut drip overhang and the panel in the Pinnacle 500 system is the same or substantially the same as the combination of the pre-cut drip overhang and the panel in the Ultralite 500 system."
i) The Ultralite 500 patent is valid;
ii) Pinnacle 500 does not infringe it;
iii) Pinnacle 500 infringes Ultraframe's design right in:a) The assembly as a whole;b) The panels, taken as a whole.