Intellectual Property Lawcards 2012-2013

Routledge

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781136595479
• Edition: 8
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

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Titles in the Series: Commercial Law; Company Law; Constitutional Law; Contract Law; Criminal Law; Employment Law; English Legal System; European Union Law; Evidence; Equity and Trusts; Family Law; Human Rights; Intellectual Property Law; Jurisprudence; Land Law; Tort Law

Introduction

Intellectual property law deals with the formulation, usage and subsequent commercial exploitation of original creative labour. The areas outlined within this book form some type of proprietary protection over intangibles such as inventions and information.

Much of the debate revolves around how the boundary lines of intangible property are defined; this is an important aspect as intellectual property protects a wide and often valuable range of goods. Intellectual property is a rapidly moving and often topical area, with some of the recent debates revolving around GM food, gene patenting, peer-to-peer networks such as KaZaA and the 2005 legislation concerning the copyright regime.

It is important to ‘hang’ new legal developments onto the tenets of law. To this end this book contains up to date examples of recent case and statute law.

Confidential information

Basic elements of breach of confidence
Categories of protectable information
The essential elements of breach of confidence; information, obligation of confidence and risk of damage
The public interest defence
Remedies: damages and injunctions

THE ACTION FOR BREACH OF CONFIDENCE – BASIC ELEMENTS

The basis for an action for breach of confidence may lie in equity or contract or at common law.

No right to privacy under English common law exists, although Art 8 of the European Convention on Human Rights seeks to guarantee a limited right with respect to the private life of individuals and families and to protect private correspondence. However, balanced against this is Art 10 which guarantees freedom of expression (see Douglas v Hello! Ltd [2001], (No. 3) [2003], (No. 8) [2004]).

The action for breach of confidence is broad ranging. It covers personal and technical trade secrets, knowhow and ideas.

Commentators have long discussed whether breach of confidence arises from one of the following doctrines:

tort;

property;

equity;

contract law.

This question may be of importance when a conflict of laws arises and when limitation periods are in dispute.

In Kitechnology BV v Unicor GmbH Plastmaschinen [1995] it was said that claims for breach of confidentiality did not arise in tort or contract, but were part of equity.

Breach of confidence is comprised almost entirely of case law; however, there is statutory recognition in s 171(1) of the Copyright, Designs and Patents Act (CDPA) 1988 and s 1 of the Official Secrets Act 1989.

CATEGORIES OF PROTECTABLE INFORMATION

To be protected, information must have ‘the necessary quality of confidence about it, namely, it must not be something which is public property and public knowledge’ (per Lord Greene MR in Saltman Engineering Co Ltd v Campbell Engineering Co Ltd [1963]).

Examples

In Coco Engineers v Clark [1969], Megarry VC expressed the view that the doctrine of confidential information would only be used in cases of sufficient gravity, and not mere ‘tittle-tattle’. Matters that are revealed to the public, such as by a court case, cease to be private (Chantry Martin v Martin [1953]).

A person receiving confidential information is still under an obligation of confidence, even if he already knows the information (Johnson v Heat and Air Systems Ltd [1941]).

However, confidentiality may still be maintained even though the information has been published, to prevent further damage through repetition (see Schering Chemicals v Falman Ltd [1982]).

Liability may sometimes attach to recipients who innocently acquire confidential information; liability arises at the time a party is informed of the breach of confidence (see Stephenson, Jordan and Harrison Ltd v Macdonald and Evans [1952]; Printers and Finishers Ltd v Holloway (No 2) [1965]).

COCO ENGINEERS v CLARK [1969]

Facts

This case concerned the claimant who had created a moped engine, and had entered into negotiations with the defendant, with the intention that he would manufacture the engine for him. These negotiations broke down, and the defendant created his own engine which was similar to the one that the claimant had created. The claimant therefore sued for breach of confidence.

This case is significant because of the important criteria produced by the judgment regarding breach of confidence; (a) important information capable of protection, (b) obligation of confidence and (c) risk of damage.

COCO V CLARK: THE THREE ESSENTIAL ELEMENTS THAT ESTABLISH BREACH OF CONFIDENCE

The broadly worded formulations for the elements of breach of confidence, adopted by the courts in the past, have tended to encourage claimants. In Coco, Megarry VC held the following to be necessary for an action:

(a) Important information capable of protection: the information must have a necessary element of confidentiality.

(b) Obligation of confidence: the information was communicated in circumstances where the confidant ought reasonably to have known that the disclosure had been made in confidence.

(c) Risk of damage: there is a risk of the information being used or disclosed in an unauthorised way, possibly causing damage.

The Coco case is an important case and is frequently cited. Coco partly followed the approach of the Court of Appeal in Saltman Engineering Co Ltd v Campbell Engineering Co Ltd [1948]. There is no need for an obligation of confidence to be in writing, as the courts have been prepared to imply terms.

Note that in the case of prototypes, ideas, personal secrets and employment, the three essential elements of Coco must be established in each situation.

Prototypes

Designs, prototypes or product samples shown to others prior to any business deal may be protected, but subject to the decision in Carflow Products (UK) Ltd v Linwood Securities (Birmingham) Ltd and Others [1996], where the court refused to impose an obligation of confidence on the party viewing the sample.

It was held that there are two possible approaches to the question of whether a disclosure was in confidence:

(a) subjective, that is, what did the parties themselves think they were doing by way of imposing or accepting obligations?; and

(b) objective, that is, what would a reasonable man think they were doing?

As equity looked at the conscience of the individual, the subjective view was the appropriate one.

The mere fact that a prototype was being offered for sale did not import an obligation of confidence.

In a passage from the Coco case, Megarry J suggested that an objective test could apply in situations where:

... information of commercial or industrial value is given on a businesslike basis and with some avowed common object in mind, such as a joint venture or the manufacture of articles by one party for the other.

He stated that he...

Table of contents

• Front Cover
• Title Page
• Copyright
• Contents
• Table of Cases
• Table of Statutes
• Table of Statutory Instruments
• Table of European Legislation
• How to use this book
• 1 Introduction
• 2 Confidential information
• 3 Patents
• 4 Copyright
• 5 Passing off
• 6 Malicious falsehood
• 7 Character merchandising
• 8 Registered trade marks
• 9 Design rights
• 10 Remedies
• 11 Putting it into practice . . .