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England and Wales Patents County Court |
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You are here: BAILII >> Databases >> England and Wales Patents County Court >> Anglia Autoflow Ltd v Wrightfield Ltd [2008] EWPCC 3 (24 July 2008) URL: http://www.bailii.org/ew/cases/EWPCC/2008/3.html Cite as: [2008] EWPCC 3 |
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B e f o r e :
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ANGLIA AUTOFLOW LIMITED | Claimant | |
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WRIGHTFIELD LIMITED | Defendant |
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Crown Copyright ©
Introduction[1]
The litigation and the parties
The evolution of Wrightfield's programme: two 'lost' laptops.
Fuelling the fire: Animus and suspicion
(a) a DVD,
(b) a back-up tape, and
(c) Mr Jones' laptop computer itself now in use by the apprentice.
These items were the last of a number of hares which Wrightfield caused adventitiously to pop out of top hats during the course of this litigation.
"Thus, anything disclosed by Wrightfield post-dating 5 October 2005 is 'tainted' by the suspicion that it could have been altered – or even created- in response to Anglia's suspicions. That is why documents pre-dating 5 October are particularly important."
And those suspicions were what was said to have driven Anglia forward for the rest of the trial - until that is, material pre-dating 5 October was indeed found. What a pity, said Mr Hollingworth, that disclosure of Mr Jones' back-up items (which date from 28 September 2005) had not been given earlier. I quite agree.
Further matters to be taken into account
.
.
The three degrees of unravelling: An overview
The first unravelling: The 'sucking out and conversion' incident
2 (a) The Claimant's primary case is that the Defendant downloaded or 'sucked out' the [Easyload] Program and thereby copied the whole of the Program exactly.
(b) …alternatively, in creating the first version of the Omron PLC Program… the Defendant copied , translated, adapted, arranged or otherwise altered a substantial part of the Program (either from a hard or soft copy of the Program which had been 'sucked out' as aforesaid or from a hard copy of the Program in the possession of the Defendant or Faccenda or from some other source unknown to the Claimant). In support of the foregoing the Claimant relies upon:
(i)…
(ii) the fact that version 1.0 and other earlier versions of the Omron PLC Program have not been disclosed, despite having previously been said to be available by the Defendant
[Emphasis added]
"Although I was at the meeting, I have no recollection of who said what to whom."
The second unravelling: Versions 30.4 and 3.05 are abandoned as infringements.
"[Anglia] does not contend that a substantial part of its programme is reproduced in versions 3.04 and 3.05"[21]
This happened after both Mr Wills and Mr Sykes had given their evidence (at length) about the alleged telltale similarities as elaborated mainly in their document 'Confidential List of Similarities' to which I have referred. Moreover, by this time, an analysis of the hard drive of Mr Corbyn's 'dead' laptop by Kroll, was (as both sides knew) reaching completion without any result which was of conclusive (let alone incriminating) use to either side. Examination of the hard drive for trace evidence of illicit past usage became in fact a technical and costly mini-trial within the trial. Anglia's case was I think, in serious difficulty and by now was almost entirely based on inference (i.e. suspicion) alone.
The third unravelling: Mr Jones' back-up materials 'in plc 28sep2005'.
Anglia's other allegations of unreasonable behaviour on Wrightfield's part.
Conclusion
Indemnity costs?
.
Note 1 References are to the Court file by bundle number, tab and page. References to the transcript are by day and page. [Back] Note 3 See ‘Effect of Rule’ in CPR, Pt 36..1 [Back] Note 4 This factory was closed shortly after the events of which complaint was made, occurred. Since no two poultry processing plants are it seems, identical, the only evidence as to how the machinery at Okeford functioned (and thus of the programme first installed there by Anglia for this purpose) was by reference to the owner’s operating manual which was in Faccenda’s possession. Reference was however made to another Faccenda factory at Brackley, Northants which operated, so I was told, in a similar way and was subject of a site view by the court, counsel and the experts during trial. Faccenda had no direct involvement in this dispute. [Back] Note 5 Programmable Logic Controller. [Back] Note 6 Even though it was in fact, more costly than Anglia’s. [Back] Note 7 Large numbers of timesheet records were disclosed by Wrightfield and much used in cross-examination. [Back] Note 9 Who gave evidence. [Back] Note 10 For his part, Mr Corbyn’s assessment of Mr Wills is expressed thus in his first witness statement § 11: “ Robert Wills considers himself to be very clever.” [Back] Note 11 Mr Jones, who gave evidence for Wrightfield, is no longer employed by them. [Back] Note 12 Which was itself the catalyst for more suspicion on Anglia’s part. [Back] Note 13 7/D1/86. Omron made the replacement PLC at Okeford. [Back] Note 14 The suggestion of infringement was soundly rejected by Omron by letter the following day. [Back] Note 15 A charge he has hotly denied. His subsequent case against Wrightfield for wrongful dismissal before an Employment Tribunal was dismissed. [Back] Note 16 The parties are based in Norfolk. [Back] Note 17 The initial date appointed for trial was adjourned at a fairly late stage. [Back] Note 18 See for example Billhöfer v Dixon [1990] FSR 105 at 121 [Back] Note 20 Mr Wills was unaware whether such a programme existed: 2/1/9 § 33 [Back]