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Looks are deceptive: the sleigh type landing gear is a
visually simple design, but its development is very complex
and challenging due to the large number of conflicting
requirements. Tremendous improvements in predictive
analysis tools and data processing have contributed to the
development of the fixed skid landing gear from the Bell
Model 47 (first flight in 1943) to the new sleigh type
landing gear for the Model 429 (first flight 2007); see
Fig. 11.
[438] Figure 11 of the Minderhoud article shows a picture of the
Bell Model 47 (equipped with a conventional gear) on the ground
and of the Bell 429 (equipped with the Legacy gear) in the air. The
Legacy gear shown on the picture is presented as a nearly finished
product and a major technological breakthrough compared to the
conventional type of landing gear (although there may be still
some further testing). Both in the summary and the article,
reference is made to the fact that this sleigh type of gear “has been
designed for the first time” by Bell. This carries a very strong
message to the public and the potential buyers.
[439] Bell’s counsel suggests that the Court should be indulgent.
Readers of the Minderhoud article would have known that the
EC120 was already equipped with a similar type of sleigh landing
gear. If the statement above carries some ambiguity, any doubt
should favour Bell. Having read same in the context of the totality
of the Minderhoud article, the Court finds that there is an innuendo
that Bell is the “first”, and it is debatable whether the careful
chosen words suggest that Bell is the first to have designed a sleigh
type of landing gear. Otherwise, there would be no purpose of
celebrating in the article the fact that the Bell 429 model is the first
helicopter designed by Bell using an already known technology in
the field. It turns out that the main purpose of the article is to
attract the attention on Bell’s technology and to stimulate sales of
the Bell 429, and there is no reference whatsoever in the article or
a footnote that the sleigh type of landing gear has been in use for
some time in the industry.
[440] It is not requested here to entertain a general tort for alleged
misrepresentations. The issue is whether punitive or exemplary
damages should be awarded to Eurocopter following the Court’s
finding that the infringing conduct was planned and deliberate, and
that same persisted over a lengthy period of time (2004-2008)
although only twenty-one landing gears were made for or used by
Bell. In this context, the representations publicly made by Bell
with respect to the development of the infringing Legacy gear are
relevant to determine whether or not the conduct of Bell is truly