(and therefore infringed???) is very hard:
Carlisle lost its appeal against the finding that it infringed Barrett Property Group’s copyright int eh Seattle and Memphis – the second of the alfresco cases.
51 In our opinion, the appellant’s submissions must fail.
52 The context in which the appellant’s submissions must be considered is an appropriate starting point. Two points are important. First, it is not suggested by the appellant that a judge, after a proper examination of the evidence, could not reach the conclusions which were in fact reached by the primary judge. In our opinion, a judge, after a proper examination of the evidence, clearly could reach the conclusions which were in fact reached by the primary judge. The handwritten notes of Mr Megens and of Mr Feldman make no mention of the Rochester and neither of them had any recollection of any mention of the Rochester. It is undoubtedly true to say, as the primary judge did, that, in view of the alleged importance of the Rochester to the derivation of the design, one would have expected that the legal practitioners at the conference would have made a note of it had it been mentioned. Secondly, Mr Megens gave his evidence in chief by affidavit and by way of a limited number of oral answers to questions. His affidavit referred to his handwritten notes and typed notes of the conference which notes were exhibited to his affidavit. He did not give any further evidence of his recollections of the conference in his affidavit.
The Court then considered each of the appellant’s arguments and rejected them or found that the primary judge had taken the point into account.
Carlisle Homes Pty Ltd v Barrett Property Group Pty Ltd  FCAFC 31
Kim on the monopoly in the alfresco.