Jury 14, 1967 THE WEEKLY LAW REPORTS [1967] 1 W.LR. was one for which he was, or in this case his personal representa- tive is, entitled to recover. Mrs. Chadwick is therefore entitled to damages against the defendants. This illness started in early 1958 and required hospital treat- ment for approximately six months in 1959. Thereafter Mr. Chadwick was able to work but was never the same man as he had been before the accident. He died from causes unconnected with’ the accident in December, 1962. He lost wages as a result of this illness and giving ctedit for his earnings and for half the sickness benefit the total comes to £935 3s. 6d. In addition, for the misery and discomfort for what must have been the greatly diminished pleasure in life and for his periods of treatment in hospital, I would assess the general damages at £600, making a total of £1,535 3s. 6d. for which the plaintiff is entitled to recover. Judgment for the. plaintiff for £1,535 38. 6d. Solicitors: James & Charles Dodd; M. H. B. Gilmour. {court oF APPEAL] * SEAGER v, COPYDEX LTD. [1963 S. No. 3017] Equity—Confidence—Confidential information ‘by inventor—Unfair ‘advantage—Use without consent of donor—Information partly public and partly private— Disclosure of features of device— Unconscious use of information—Damages. Patent—Confidential information—tnvention of patented device— Confidential disclosure of features of similar device—Uncon- scious use of information without consent—Information partly public and partly private—Duty of confidence—Damages. The plaintiff invented a carpet grip and took out a patent for it. For more than a year he negotiated with the defendants with a view to their marketing the grip, but nothing came of the negotiations. During the negotiations, the plaintiff disclosed to the defendants the features of the grip and suggested an alter- native grip with a tang and strong-point. The defendants realised that this information was given to them in confidence. When the negotiations had ended, the defendants made a carpet grip which did not infringe the plaintiff's patent but embodied his suggestion of an alternative grip with a tang and strong-point; and they gave this alternative grip the same name as the plaintiff said he had mentioned to them during the negotiations. On the plaintif’s claim, inter alia, for an injunction arid an 923 1967 ‘Chadwick British Railways ‘Board Watter J. CA 1967 March 13, 141 4, April Lor DexwiNa SALMON ‘and wow LIS.924 CAL 1967 Seager Copydex Eis. [1967] 1 W.LR. THE WEEKLY LAW REPORTS Jury 14, 1967 inquiry as to damages by reason of the defendants’ breaches of confidence:— Held, that although the defendants honestly believed that the alternative grip was the result of their own ideas, they had unconsciously made use of confidential information given to them by the plaintiff as a spring-board for activities detrimental to him, thereby infringing a duty of confidence. Accordingly the plaintiff was entitled to damages to be assessed on the basis of reasonable compensation for the use of the confidential information which had been given. Dieta of Lord Greene M.R. in Saltman Engineering Co. Ltd. vy. Campbell Engineering Co. Lid. (1948) 65 R.P.C. 203, 213; [1963] 3 AIL ER, 413n,, 414, C.A.; Roxburgh J. in Terrapin Lid. v. Builders Supply Co. (Hayes) Ltd. [1960] R.P.C. 128, 130, C.A.; and Roskill J. in Cranleigh Precision Engineering Lid. v. Bryant [1965] 1 W.L.R. 1293, 1317-1319; [1964] 3 All E.R. 289 applied. Per Lord Denning M.R. The law on this subject depends on the broad principle of equity that he who has received informa- tion in confidence shall not take unfair advantage of it (post, p. 9316). When the information is partly public and partly private, the recipient must take special care to use only the material which is in the public domain (post, p. 9310, #). Decision of Buckley J. reversed. ApPEAL from Buckley J. The plaintiff, John Henry Seager, by writ dated July 19, 1963, claimed against the defendants, Copydex Ltd.: (1) an injunction to restrain the defendants, whether acting by themselves, their direc- tors, officers, servants or agents or otherwise, from (a) making use of or procuring any other person to make use of any information, documents or other material supplied by the plaintiff in confidence to the defendants; (b) offering for sale, selling or otherwise dealing with any carpet grips in the manufacture of which there had been used any information, documents or other material supplied by the plaintiff in confidence to the defendants; (2) an inquiry as to damages by reason of the defendants’ breaches of confidence or procurements thereof or alternatively an account of profits; (3) delivery up of all goods, advertisements or other material in the possession or power or under the control of the defendants the use of which would offend against any injunction granted; (4) further or other relief; (5) costs. By his statement of claim, the plaintiff also claimed a declaration that the invention in so far as it was claimed in the application for United Kingdom Letters Patent 35736 /62 and in any overseas applications for letters patent based on that application had at all material times been held by the defendants as trustees for the plaintiff. On July 14, 1966, Buckley J. dismissed the plaintiff's action. The plaintiff appealed against the order of Buckley J. dismiss- ing the action, on the grounds that the court was misled and the judgment of Buckley J. was against the weight of evidence, that Buckley J. misdirected himself in the matter of probability and that the defendants obstructed and delayed the hearing of the action. The facts are fully stated in the judgments,Juty 14, 1967 THE WEEKLY LAW REPORTS [1967] 1 WLR. ‘The plaintiff, the appellant in the Court of Appeal, appeared in person. Peter Ford for the defendants, The following case was referred to in argument in addition to those cited in the judgments: Lee v. Samburn.* Cur, adv, vult. Lorp DENNING M.R. Mr. Seager, the plaintiff, is the pro- prietor of a light engineering firm at Malden. He is a clockmaker turned inventor. In 1953 a neighbour's child fell on a loose carpet and hurt herself badly. Mr, Seager was so moved that he sought to devise a remedy. He produced a special grip to keep a carpet down. It was a narrow strip of metal with spikes on it. This metal strip was nailed to the floor or stairs. The carpet was stretched over it so as to be caught by the spikes. Then it was tightened up. It became taut in use as people trod on it. He called this grip the “Klent.” That was a fancy name to denote its purpose to “‘catch, cling and clench.” He took out a patent for it, No. 770279, and registered the name “ Klent” as a trade-mark The inventive step lay in the special construction of the spikes. They were cut out of the metal and bent in a special way so as to be very like a dragon’s teeth, sharp and strong. In February, 1961, the B.B.C. had a programme on television called the “ Get Ahead” Contest. It was sponsored by the “ Daily Mail.” It showed people with ideas worthy of exploitation. Mr. Seager took part in it. He showed his “Klent” carpet grip. He said he wanted a selling organisation to back it. The programme was seen by Mr. Harry Preston of Copydex Ltd. (‘* Copydex ”), the defendants, They are manufacturers of adhesives, with a con- siderable selling organisation. Mr. Preston was very interested and got into touch with Mr. Seager. On March 22, 1961, he called ‘on Mr. Seager and took away samples of the “‘Klent” grip. Then followed negotiations for the marketing of the “Klent” grip by Copydex. There were two persons who represented Copydex in the negotiations. One was Mr. Harry Preston, He was an accountant by profession, and was at this time the acting secretary of Copydex and the assistant general manager. The other was Mr. John Boon, He was the sales manager. The negotiations continued for over a year, in the course of which Mr. Seager told them all about the “Klent” grip. But the negotiations came to an end about May, 1962, I need not go through them in detail because we are not here concerned directly with the “Klent” grip. We are concerned with another carpet grip which, for convenience, I will call the “ Invisigrip.” Mr. Seager says that, in the course of the negotiations about the “Klent” grip, he disclosed to Mr. Preston and Mr. Boon an > (1952) 94 U, Q. 153 (Cal Sup.Ct.); Turner's Law of Trade Secrets, p. 110. GA. 1967 ‘Seager Copyidex Ta.926 [1967] 1. W.LR. THE WEEKLY LAW REPORTS —_Juty 14, 1967 GA. alternative carpet grip which would be cheaper to produce, He 1967 ___ even suggested the name “ Invisigrip.” It was a narrow strip of Seager metal like the “ Klent,” but the spikes were constructed differently. Copydex Instead of being like dragon's teeth, the spikes were V-prongs, ‘Te which were made sharp and strong by. being specially shaped in Tox that they were domed like half a cone. er In May, 1962, as soon as the negotiations about the “ Klent” grip’ fell. through, Copydex set to work to make a carpet grip of their own. It turned out to be very similar to Mr. Seager’s alter- native suggestion, They gave it the very similar name “ Invisi grip.” And they applied for a patent for it, claiming it was thei own invention. It has been a great success. They have sold it in large quantities, ‘Mr. Seager claims that Copydex must have used the informa- tion that he gave to them during the negotiations about the “Klent” grip: and that this was a breach of confidence. Buckley J. rejected Mr. Seager’s claim. He thought that there was no significant disclosure at all. Mr. Seager appeals to this court. He conducted his case in person. He is deaf and would have been at a great disadvantage but for modern aids, We sat in Queen’s Bench Court 1, where there are recording machines, The official shorthand-writer was a great help. He arranged for Mr. Seager to have ear-phones: and counsel and ourselves to have microphones, Then the case was heard just-as well as if he had not been deaf. It involved a detailed consideration of the facts. 1. The disclosure of the alternative grip In February,, 1962,: Mr: Seager was hoping to be successful with.“‘Klent ”.in the second “ Daily Mail” contest: but Copydex ‘were keen to get production going before the contest. Mr. Seager sought to meet their wishes by putting an alternative before them. On February 26, 1962, he wrote to Mr. Boon, the sales manager of Copydex: : “By making a slight difference “in design and finish, I could supply you in quantities, stamped Copydex, etc., at a . figure that will give you the margin and price’ you require.” In consequence, on March 13, 1962, Mr. Harry Preston (the ‘assistant manager of Copydex) ‘and Mr, Boon (the sales manager) went to Mr. Seager’s house. Mr: Seager’s contemporary note reads: “My suggestion of a cheaper angle with ‘V” tangs, zinc- coated, was turned down. They want the ‘ Klent’ with its superior grip and stove-enamelled.” Mr, Seager in his evidence said: “I produced these [sketches] as soon as they arrived. I enthused on this and started telling about it. . . . Only a few minutes. I started explaining the type of grip to go onto the other type, when Mr. Boon said: * We do not want it; it is all or nothing. We have the “ Klent.”’”” Mr. Preston in his evidence said: “We asked Mr. Seager what he meant by the phrase ‘slight’ modification’ in his letter: I remember he startedJury 14,1967 THE WEEKLY LAW REPORTS — [1967] 1 WLR. talking about a‘ V’ tang design, and suggested we should pur- sue the idea of him, Mr. Seager, making this for us, because in this way he would be able to test the efficiency of our marketing organisation, whilst at the same time he would be free to go ahead with his ‘Klent’ in the ‘ Daily Mail’ contest. Mr. Boon interrupted him at this point to say that we were quite uninterested in such a suggestion.” : Mr. Boon said much the same. ‘Thus the evidence on both sides shows that Mr. Seager did dis- close some features of this alternative grip, but was then cut short by Mr. Boon. Mr. Seager says that at the end of the meeting he reverted to the alternative grip and made a further sketch on a piece of paper which he thinks Mr. Preston took away with him. Mr. Boon said he had no memory of it. Mr. Preston denied taking any sketch away: and said that to the best of his recollection Mr. Seager did not make any sketches for them. The judge accepted that Mr. Seager conceived the idea of the alternative grip with a new design of tooth. But he held that Mr. Seager did not disclose anything significant of it to Copydex. In particular, the judge rejected Mr. Seager’s evidence as to what took place at the end of the meeting. He said that it was coloured by wishful hindsight. But the plain fact is that, when Copydex came to make ‘their own grip, it followed very closely the alter native grip which Mr, Seager had devised. The spikes were prongs, made sharp and strong by being shaped and domed half a cone. 2. The name “ Invisigrip” ‘Mr. Seager says’ that, besides ‘ Klent,” he had another name available for'a carpet grip. It was the name “Invisigrip” or “Invisgrip.” It was suggested to Mr, Seager in September, 1960, by a Mr. Glatzel. Mr. Seager kept the name “TInvisgrip.” in reserve as an alternative to “Klent.” He says that, at one of the meetings in 1962 with Mr. Boon and Mr. Preston, he told them that he had this name in reserve and suggested that it might be used pending the “Daily Mail” contest. Mr. Boon and Mr. Preston deny that Mr. Seager ever mentioned it to them. The judge stated the conflict but does not resolve it. But we have the plain fact that when Copydex did bring out their carpet grip, they called it “ Invisigrip.” 3. Copydex make plans to elude Mr. Seager’s patent In the beginning of May, 1962, Copydex thought that Mr. Seager was being evasive, and that the negotiations with him would not succeed. So they. decided to go ahead on their own. The evidence shows clearly that they wanted to find a device which was in principle similar to the “Klent” grip, but did not infringe Mr. Seager’s patent. They took advice as to the strength of Mr. Seager’s patent so as to see if it was valid. They also sought out ways to elude the patent. ‘Much light is thrown on their state of mind by an important 927 GA. 1967 Seager Copyidex id Lor DExNINO ME.928 GA. 1967 ‘Seager Copydex ted. Loa Denwino MR. [1967] 1 W.LR. THE WEEKLY LAW REPORTS: Jury 14, 1967 letter which Mr. Harry Preston wrote to their own solicitors (of Copydex) on July 9, 1962. It is worth quoting: “Copydex is considering the manufacture and sale of metal carpet grips to be fitted to the risers of stairs in principle basically similar to the carpet grip which is the subject of the patent specification which I left with you. Do you agree that the principle of the metal carpet grip is in itself not new and patentable, and that the patent therefore rests on the location, angle and strength of a prong or tooth as detailed in the specification? If the carpet grip which we would manu- facture has a tooth which in position, angle and design is different, would this be a sufficient answer to any accusation that we are in breach of the patent? Would it be necessary to have a different location for the prong, plus a different angle, plus a different design of the tooth, or would the difference in any one of these three points be adequate? ” That paragraph shows that Mr. Harry Preston had already acquired, in the course of the negotiations, a good deal of know- ledge about the “Klent” grip and was anxious to make an alter- native grip basically similar to it but eluding the patent: and to do this by using an alternative prong or tooth. The letter also contained an important question about infor- mation, Mr. Preston asked the solicitors this question: “If we go ahead with the production and sale, and this action is disputed by the patent-holder, how much importance attaches to the fact that we have had these abortive discus- sions with him?” The solicitors asked Mr. Preston what information was given to them by Mr. Seager. Mr. Preston answered on May 15, 1962: “We can say quite definitely that we have no information about the nature of the product other than that which is evident from the product itself or is amply described in his published literature and patent specification.” 4. The conference with counsel In order to ensure that they would not be liable to attack, Copy- dex took the opinios of counsel. It is in the instructions to counsel in the beginning of June, 1962, that we find the first description of the alternative grip which Copydex had in mind : “It has been suggested that if they devised a fastener which was similar to that referred to in Mr. Seager’s patent but had the upward prongs at an angle of 45 degrees and not at right angles to the plate (sce item 1 of Mr. Seager’s patent) they would be free from any attack on the grounds of infringement. It does not appear that Copydex would be liable for any claim by Mr. Seager against them for breach of confidence if they proceeded on the lines indicated above, since they would not use any verbal or written information given to them by Mr. Seager.” That description of “ upward prongs at an angle of 45 degrees” fits very closely the grip which Mr. Seager had in mind as an alter- native to the “Klent” grip. On June 6, 1962, there was a con- ference with counsel, attended by Mr. Preston and a director ofJuty 14, 1967 THE WEEKLY LAW REPORTS [1967] 1 WLR. Copydex. Counsel advised that the negotiations with Mr. Seager be terminated and the alternative construction be adopted. 5. Copydex get a prototype made Copydex went forward with the making of an alternative grip. On June 18, 1962, Mr. Boon went to a firm called Dexion Lid., who work in metal, He saw their new products officer, a Mr. Sudbury. He took with him a sample of a “ Klent” grip and very vague sketches. Mr. Sudbury did not think there was anything novel in it, He made a sample by hand and sent it to Mr. Boon on June 22, 1962. 6. Copydex apply for a patent . Having got the sample of the alternative grip, Copydex took steps to patent it themselves. On July 10, 1962, Mr. Boon sent this sample to the patent agents and asked-them to apply for a patent, naming himself as inventor, saying: “The angle of the specimen tooth is a most important part of the design.” On July 16, 1962, Copydex decided to apply for a patent, giving the name of the inventor as Mr. Boon. During the next fortnight there was a discussion between the patent agents and Mr. Preston. As a result, it was decided that Mr. Harry Preston, and not Mr. Boon, should be named as inventor. On July 31, 1962, the patent agents sent to Copydex an application form in which they inserted the name of Mr. Preston as inventor. Mr. Preston duly signed the form, in which he claimed “to be the true and first inventor of this invention.” The application was filed on September 19, 1962, and given application no, 35736 /62. The feature of the application which gave it patentability was described by the patent agents in these words: “The fact that the tooth was clearly stronger than the ordin- ary ‘V-tang” .. . the strength here is in the fact that the tooth is domed right down into its root. That was something Thad not seen in any prior specification.” 7. Copydex go into production In September, 1962, Copydex ordered 40 specimen grips from Dexion Ltd., which were ‘supplied. But Dexion Ltd. did not want to supply in bulk. So Copydex ordered their main supply from British Tools and Pressings Ltd. Copydex supplied this company with the Dexion specimens. The company themselves ordered several “Klent” grips from Mr. Seager. They then pro- duced the “Invisigrip.” It was marketed by Copydex and proved a great success. 8. Confidence There is no doubt that the information which Mr, Seager gave to Copydex was given to them in confidence. Mr. Boon was asked: “All those conversations that you had with Mr, Seager I assume to be confidential. Is that right?” He answered: “I would say so, yes.” Mr. Preston was asked: “ You would agree, would you not, that all these matters that you had been discussing were confidential? ” He answered: “ Yes, I think so.” Although Vow. 1 55 929 GA. 1967 Seager Copydex Td Toro Dewnina MR[1967] 1 WLR. THE WEEKLY LAW REPORTS —Juty 14, 1967 they knew the information was given in confidence, they did not think it could be made the subject of an action. Mr. Preston was asked: “Quite apart from the patent, did you and Mr. Boon ever discuss the possibility that there might be an action based on breach of confidence?” He answered : “I must tell you quite honestly that I did not know such a thing existed. I am not sufficiently experienced in law for that. The only problem that we felt we would have as far as Mr. Seager was concerned was that we might unwittingly infringe his patent in going ahead with the design of our own, but that was the only worry we had.” It is equally plain that neither Mr. Preston nor Mr. Boon had any mechanical knowledge, Mr. Preston said he had no know- ledge of engineering matters whatsoever. He had never invented anything; and he did not invent the “ Invisigrip.” Mr, Boon said he had no experience of engineering draughtsmanship, or any- thing of that kind. He had never invented anything, He knew, in his heart of hearts, that he did not invent the “Invisigrip.” As one of the witnesses said: “He may be a good salesman but he has no knowledge of tooling at all, not a clue.” 9. Summary of facts ‘Summarised, the facts are these: (@ Mr. Seager invented the “ Klent” carpet grip and took out a patent for it. He manufactured this grip and sold it. He was looking for a selling organisation to market it. (ii) Mr, Seager negotiated with Copydex, with a view to their marketing the “Klent” grip. These negotiations were with Mr. Preston, the assistant manager, and Mr. Boon, the sales manager. These negotiations lasted more than a year, but came to nothing. ii) In the course of those negotiations Mr. Seager disclosed to Mr. Preston and Mr. Boon all the features of the “Klent” grip. He also told them of an idea of his for an alternative carpet grip with a “V” tang and strong-point, But they rejected it, saying they were only interested in the “ Klent ” grip. (iv) Both Mr. Preston and Mr. Boon realised that the informa- tion was given to them in confidence. Neither of them had any engineering skills, nor had invented anything. (¥) As soon as the negotiations looked like coming to nothing, Copydex decided to make a carpet grip of their own, which was to be basically similar to the “Klent” grip, but with spikes which would not infringe Mr. Seager’s patent. (vi) Copydex did in fact make a carpet grip which did not in- fringe Mr. Seager’s patent for a “Klent” grip. But it embodied the very idea of an alternative grip (of a “ V-tang” with strong- point) which Mr. Seager mentioned to them in the course of the negotiations. Copydex made an application to patent it, and gave the name of Mr. Preston as the true and first inventor. (vii) Copydex gave this carpet grip the name “Invisigrip,” which was the very name which Mr. Seager says he mentioned to ‘Mr. Preston and Mr. Boon in the course of the negotiations,Juty 14, 1967 THE WEEKLY LAW REPORTS [1967] 1 W.LR. (viii) Copydex say that their alternative grip was the result of their own ideas and was not derived in any way from any informa- tion given to them by Mr, Seager. They say also that the name of “Invisigrip ” was their own spontaneous idea. (ix) I have no doubt that Copydex honestly believed the alter- native was their own idea; but I think that they must unconsciously have made use of the information which Mr. Seager gave them. The coincidences are too strong to permit of any other explanation. The Law I start with one sentence in the judgment of Lord Greene MR. in Saltman Engineering Co, v. Campbell Engineering Co. “If a defendant is proved to have used confidential informa- tion, directly or indirectly obtained from the plaintiff, without the ‘consent, express or implied, of the plaintiff, he will be guilty of an infringement of the plaintiff's rights.” To this I add a sentence from the judgment of Roxburgh J, in Terrapin Ltd. v. Builders’ Supply Co. (Hayes) Ltd. which was quoted and adopted as correct by Roskill J, in Cranleigh Precision Engineering Ltd. v. Bryant *: “As I understand it, the essence of this branch of the law, whatever the origin of it may be, is that a person who has obtained information in confidence is not allowed to use it as a spring-board for activities detrimental to the person who made the confidential communication, and spring-board it remains even when all the features have been published or can be ascertained by actual inspection by any member of the public.” The law on this subject does not depend on any implied con- tract. It depends on the broad principle of equity that he who has received information in confidence shall not take unfair advantage of it. He must not make use of it to the prejudice of him who gave it without obtaining his consent. The principle is clear enough when the whole of the information is private. The difficulty arises when the information is in part public and in part private. As, for instance, in this case. A good deal of the information which Mr. Seager gave to Copydex was available to the public, such as the patent specification in the Patent Office, or the “Klent” grip, which he sold to anyone who asked. If that was the only informa- tion he gave them, he could not complain, It was public know- ledge. But there was a good deal of other information he gave them which was private, such as the difficulties which had to be overcome in making a satisfactory grip; the necessity for a strong, sharp tooth; the alternative forms of tooth; and the like. When the information is mixed, being partly public and partly private, then the recipient must take special care to use only the material which is in the public domain, He should go to the public source and get it: or, at any rate, not be in a better position than if he had gone to the public source, He should not get a start over others by 2 (1948) 65 RPC. 203, 213; 8 [1965] 1 WLR, 1293, 1317, [1963] 3 AER. 4i3n, 414, CA’ 1319; [1964] 3 Ali ER. 289. ¥ [1960] RPC. 128, 130, CAL 931 cA. 1967 Seager Copydex Lid Lor Devine MR.932 CA. 1967 Seager Copydex Lid. Lorp DENNING [1967] 1 W.LR. THE WEEKLY LAW REPORTS —_Juty 14, 1967 using the information which he received in confidence. At any rate, he should not get a start without paying for it. It may not be a case for injunction or even for an account, but only for damages, depending on the worth of the confidential information to him in saving him time and trouble, Conclusion Applying these principles, I think that Mr. Seager should suc- ceed. On the facts which I have stated, he told Copydex a lot about the making of a satisfactory carpet grip which was not in the public domain, They would not have got going so quickly except for what they had learned in their discussions with him. They got to know in particular that it was possible to make an alternative grip in the form of a “V-tang,” provided the tooth was sharp enough and strong enough, and they were told about the special shape which would produce this result. The judge thought that the information was not significant. But I think it was. It was the spring-board which enabled them to go on to devise the ““Invisigrip” and to apply for a patent for it. They were quite innocent of any intention to take advantage of him. They thought that, as long as they did not infringe his patent, they were exempt. In this they were in error. They were not aware of the law as to confidential information, ‘They were not at liberty to make use of any confidential information he gave them without paying for it. I would allow the appeal and give judgment for Mr. Seager for damages to be assessed. SALMon LJ. The plaintiff is an engineer and designer with a modest light engineering business and considerable inventive skill. Amongst other things, he has invented two different types of device for fixing or holding down carpets. Without going into any technical details, they may be described as follows. One device was called the “Klent.” This is a strip of metal which can be nailed or screwed into position with beak-shaped teeth projecting from it at intervals of just over two inches. The shanks of the teeth are at right angles to the plate and the teeth are bent over so that they are approximately horizontal to the plate. This invention was patented by the plaintiff. The other device, which the plaintiff did not patent, he called This also consisted of strips of metal with sharp teeth at similar intervals, but the design of the teeth was quite different from those of the “Klent.” The “ Invisigrip ” teeth were V-shaped, domed prongs. There can be no doubt but that the “ Kent” was superior to the “Invisigrip” in that it was equally suitable fSr holding carpet to floors and to stairs, whereas the “Invisigrip ” was suitable only for use on stairs. There were a number of products on the market with V-shaped prongs similar to the “ Invisigrip,” but they were all unsatisfactory. No one-prior to the plaintiff had solved the problem of designing a V-shaped prong which would hold down stair carpet efficiently and which was strong enough not to be distorted when trodden upon,Jury 14, 1967 THE WEEKLY LAW REPORTS [1967] 1 W.LR. During 1961, the plaintiff demonstrated his “ Klent” inven- tion on television in what was known as the “Get Ahead” competition organised by the “ Daily Mail.” The plaintiff was not the winner on this occasion and he was most anxious to make another attempt to win the competition in 1962 with his * Klent” invention. It was, however, a term of this contest that each device entered should be wholly owned by the competitor showing it. The defendants are in a large way of business as distributors of a wide range of light engineering appliances for use in domestic and industrial buildings. As a result of the plaintiff's appearance on television, the defendants wrote to him, Apparently they were much impressed with the commercial potentialities of “Klent.” Negotiations between the plaintiff and the defendants opened in February, 1961, and dragged on for many months until they finally broke down in May, 1962. It is unnecessary to trace their history. Undoubtedly the plaintiff, who is not very business- like, was guilty of a good deal of vacillation which must have been exasperating to the defendants. They were obviously anxious to arrange for the manufacture and marketing of * Klent” as speedily as possible on terms which would be profitable for them and for the plaintiff. The plaintiff was, in a way, anxious for the success- ful commercial exploitation of the invention, but winning the 1962 “ Get Ahead ” television contest was very much closer to his heart. And in order to qualify as a contestant in this competition he had to retain all the rights in his invention. Jt was chiefly for this reason that he could never quite make up his mind to part with these rights to the defendants, although on a number of occasions he seems to have come close to doing so. This case turns entirely upon what occurred at an interview on March 13, 1962, between the plaintiff and Mr. Preston and Mr. Boon, who were then respectively the defendants’ secretary and sales manager. It is common ground that any information given by the plaintiff at that meeting was given in confidence. Accordingly, if any such information was given to the defendants and used by them directly or indirectly without the plaintiff's consent, the defendants would be guilty of an infringement of the plaintift’s rights: the Saltman case.* The law does not allow the use of such information even as a spring-board for activities detrimental to the plaintiff: the Terrapin case*; Cranleigh Engineering Co. v. Bryant* The plaintiff said in effect that he realised that the defendants were most anxious to put a carpet-gripping device on the market as speedily as possible. In order to gain a little more breathing space for “Kent” he tried to interest them in “ Invisi- grip.” He mentioned this device by name to Mr. Preston and Mr. Boon at the beginning of the meeting but they turned it down, At the end of the meeting, which had gone on for a long time with- out any decision being reached, the plaintiff returned to the “ In- visigrip,” explaining its basic design and drawing it on a large #65 RP.C. 203, © [1965] 1 WLR. 1293. © [1960] R-P.C.” 128. 933 ca. we cae Sau i934 cA. 1967 Seager Copydex Tia. Saon 1.3. [1967] | W.LR. THE WEEKLY LAW REPORTS Jury 14, 1967 piece of paper. The plaintiff said that he missed this piece of paper after the meeting, and he has persuaded himself that it was taken away by Mr, Preston. Unfortunately for the plaintiff, this point was much stressed on his behalf before the judge. The case appeared largely to depend upon whether or not Mr. Preston stole this piece of paper. He could hardly have taken it away and used it accidentally. When Mr. Preston gave evidence, he clearly im- pressed the judge with his honesty and it was unthinkable that he should have stolen the plaintif’s design. But this was not the end of the case, It may, however, have obscured the real issue—namely, whether any information was given to Mr. Preston and Mr. Boon about the design of a domed, V-shaped prong for holding down stair-carpet of which they subsequently made use, either directly or indirectly, consciously or sub-consciously. Mr. Preston and Mr. Boon both freely admitted that at the beginning of the crucial interview the plaintiff attempted to in- terest them in a carpet grip with a V-shaped prong as an alterna- tive to“ Klent.” They agreed with the plaintiff that they turned it down. They knew that devices with a V-shaped prong were on the market, but that they had all proved commercially unacceptable It was for this reason that they were so keen on the “Klent” device. They said that the interview went on for one-and-a-half hours without any conclusion being reached. According to their recollection, however, the plaintiff never reverted to the device with the V-shaped prong and never mentioned the name of “Invisi- grip.” There is no doubt that the name of “ Invisigrip” had been suggested to the plaintiff in September, 1960, as the first letter in the bundle of correspondence marked “A” shows. It is also plain that the plaintiff had with him, at the interview of March 13, exhibit 68, which shows the carpet grip with the domed V-shaped prong which he had invented and called “ Invisigrip.” He does not suggest that he showed this exhibit to Mr. Preston or Mr. Boon. According to him, he reproduced this drawing on a much larger scale and explained it at the end of the interview. The judge found that all three were honest men, a finding which, of course, I entirely accept. The plaintiff, whom we have seen, is obviously an honest, intelligent, charming but somewhat talkative and perhaps a rather difficult old gentleman, Had he not been honest he might have sought to reinforce his case by saying that he had also shown exhibit 68 to Mr. Preston and Mr. Boon, The defendants in no sense set out to by-pass the plaintiff— clearly they would have preferred, if possible, to do business with him. In May, 1962, however, it became obvious that they were never likely to succeed in doing so. They frankly admit that they then planned, as they were entitled to do, to put a carpet-gripping device upon the market which would resemble the plaintiff's Patented invention without infringing it. Mr. Preston, who was an accountant and company secretary, admitted that he had no know- ledge or experience of engineering or technical design. Mr. Boon,Juty 14, 1967 THE WEEKLY LAW REPORTS [1967] 1 WLR. who was a sales manager, admitted to equal ignorance of these subjects. Towards the end of May, 1962, Mr. Boon took rough designs and a cardboard model of a carpet-fixing device with a V-shaped prong to Mr. Sudbury of Dexion Ltd. These were not produced in court, Neither Mr, Sudbury nor his company had any previous experience of manufacturing carpet grips. Within four days they produced a rough prototype but decided that they were not inter- ested in its commercial production. The defendants accordingly took this prototype to Mr. Turl of British Tools and Pressings Ltd. Mr. Turl was so impressed with it that he said: “ Why had I not thought of something like this myself?” He said that he and Mr. Boon made some rough drawings of what Mr. Boon wanted. ‘Then according to Mr. Turl: “I had literally to pin Mr. Boon’s ‘ears back and say I must have a drawing from you which we can work from, a specific drawing of this component, which he did produce.” But it was not produced in court. Within a few weeks ‘Mr. Turl’s company was manufacturing a carpet grip which hap- pened to be an exact replica of the plaintiff’s invention as shown on exhibit 68. This is said by the defendants to be nothing but a coincidence. The defendants marketed the carpet grip under the name of “Invisigrip.” With its domed, V-shaped prong, it was efficient for holding stair-carpet in position. No one had ever be- fore succeeded in producing an efficient carpet grip of this kind. None of the persons concerned on behalf of the defendants, neither ‘Mr. Preston, Mr. Boon, Mr. Sudbury, nor Mr. Turl, had had any previous experience in the manufacture or design of carpet grips. I know that coincidence has a long arm but in my experience it is not infinitely expandable. To my mind the irresistible inference from the uncontroverted facts is that the plaintiff disclosed his idea and explained his “Invisigrip” device to Mr. Preston and Mr, Boon at the meeting of March 13, 1962. The plaintiff, as he amply demonstrated before us, is a very difficult man to stop talking. He was determined to interest Mr. Preston and Mr. Boon in “ Invisigrip” and to show them why it had advantages over all the other carpet grips with V-shaped prongs which had previously been tried and found wanting. I hope that I am not underrating Mr. Preston’s and Mr. Boon’s powers when I conclude that they failed to stop him. I certainly acquit them of any conscious plagiarism. In May, 1962, when it was obvious that the “Klent” was out of their reach, they were admittedly casting about for a carpet grip which would not infringe the plaintiff's patent. A grip on the “Klent” principle would present obvious risks. Prior to the meeting of March 13, 1962, they were convinced that there was no future in any carpet-grip with a V-shaped prong. That is why they were so anxious to secure the “Klent.” At the conclusion of that meeting they were still uninterested in a V-shaped prong. What caused them to turn to it in May when all chance of securing the “ Klent” 935 cA. 1967 Seager Copiidex Tid. sauwow LJ.936 GA. 1967 ‘Seager Copydex ted. SaLMon LJ. [1967] 1 WLR. THE WEEKLY LAW REPORTS —_Juty 14, 1967 had vanished? I certainly do not say that they consciously went through any such process of thought as: “That old man, difficult though he is, has a very inventive turn of mind, I wonder if, after all, he may have been right last March in what he claimed for his V-shaped, domed prong which has not been patented. No one has succeeded in pro- ducing an effective V-shaped prong before, but perhaps his will work. Let us try to remember what he told us about it.” Nevertheless, the germ of the idea and the broad principle of the domed, V-shaped prong was, I am certain, implanted in their minds by the plaintiff at the confidential interview of March 13, 1962, and afterwards subconsciously reproduced and used, if only as a spring-board, to forestall the plaintiff with “Invisigrip.” This is no reflection upon their honesty, but it does infringe the plaintiff's rights. I would accordingly allow the appeal, Winn L.J. In September, 1962, an application, No. 35736, was filed in the Patent Office by Copydex Ltd., the defendants, and Mr. Harry Preston. Since 1963 he has been the secretary of the ‘company and was formerly at the dates material in this dispute the acting secretary and assistant general manager; he was an accountant by profession with, according to his own evidence, no knowledge of engineering matters. This application, accompanied by a provisional specification and some dra purported to declare an invention relating to fastening devices for holding laid carpets, including stair-carpets, in position. In this preliminary specification the construction of the device was described, inter alia, as follows (p. 4): “The carpet-fastening device comprises a strip of metal folded along or near its central line into two arms at right angles one to the other. Spaced along the strip is a number of sharp points... . In the case of the angular strip the points in the two arms face in the opposite directions so that the angle of the stair-carpet can be fixed thereto, The points are cut out of the strip and the portion round the points is preferably removed for easier working of the point material. ‘The strip at the root of a point is bent upward, preferably . . . in the form of a partial dome from one end of which the point material extends.” This description was further qualified by the accompanying drawings and was amplified in a complete specification filed with further drawings on September 17 of the following year, 1963, particularly on pages 5 and 6, beginning with line 11 of page 5. On the patents form 1, which accompanied the first application, it was stated above the signature of Mr. Harry Preston that he was the inventor of this device and by the deletion of paragraph 3 of the form it was asserted that nobody else had contributed to the mal of the invention: in the course of cross-examination in the action Mr. Harty Preston stated (day 3, p. 39A) that he did not invent the device, and that his only concern was to ensire that the companyJuty 14, 1967 THE WEEKLY LAW REPORTS [1967] 1 W.LR. should be granted a patent on the application, and “ because that was the only purpose I had in mind, this error arose.” This strange state of affairs seems even stranger now that it is known to the court, from a statement of counsel, that in December, 1966, an amended statement was filed, which the court has not seen, in which apparently it has been stated that Mr. J. N. Boon, the sales manager of the company, and a Mr. R. G. Sudbury, who is employed by Dexion Ltd., as their new production officer, were also inventors of the device. During his cross-examination Mr. Preston was asked: “Is it quite true to say that your company owes nothing to anybody in respect of the invention? ” He replied : “In my view we owe a great deal to Mr. Sudbury.” When asked why Mr. Sudbury’s name was not included in patent form 1, he said: “Mr. Sudbury had told us quite clearly that he had no interest in the matter and that he was perfectly happy for Copydex to go ahead and apply for this patent.” The court is not aware of the reasons why this change of position has been adopted by the defendants. What is far more strange is that the verbal and pictorial descriptions of the device the subject of the application in question are, essentially, specific presentatiois of ideas roughly indicated upon a piece of paper exhibited in the action as exhibit no. 68 which it is clear that the plaintiff had in his possession at the time of a meeting which he held with Mr. Boon and Mr. Preston in his own house on Tuesday, March 13, 1962. He had sketched upon this sheet of paper at some time within the preceding few days a rough but nevertheless significant indication of such a domed tooth, tang or prong, and of the process of stamping out a sheet of metal in order to enable such a piece of the sheet of metal to be conveniently raised, as is described in the defendants? patent application. The plaintiff had made this sketch on the back of a piece of paper, the front of which is reproduced by photostat as exhibit no. 67. He did not assert in evidence that he evet showed exhibit no 68 to Mr. Boon or Mr. Preston; his version of what happened is, in my opinion, all the more convincing because he made no such assertion, What he did say was that he produced the sheet of paper, of which exhibit no, 67 is one side and exhibit no. 68 the other, and began to refer to exhibit no. 67; he was told, in effect, by Mr. Boon that he had not come to discuss any idea other than the particular purpose of their visit, namely, the basis of co-operation contemplated between Copydex and the plaintiff for the production and marketing of a carpet grip already patented by the plaintiff known as “Klent.” What Mr. Seager did assert in evidence was that towards the end of the interview he returned to his ideas which are indicated on exhibit no. 68, and drew fresh sketches on a different and larger sheet of paper on the table between himself and Mr. Preston, describing to Mr. Preston in detail what he was then sketching; he said that next day he could not find this sheet of paper and inferred that Mr. Preston must have taken it away with him. 937 ca 161 Seager ophdex Tae Woe LJ.[1967] 1 WLR. THE WEEKLY LAW REPORTS —Juy 14, 1967 Thus it is clear that it was common ground that the plaintiff made some attempt at this interview to propose to Mr. Boon and Mr. Preston that they, on behalf of the defendants, should interest themselves in a carpet grip differing from the “Klent”; it was not apparently disputed in the action that he had already prepared, and then had with him, the document exhibit no. 68; what was said by Mr. Boon and Mr. Preston, and the judge accepted this, was that the plaintiff did not show to them either exhibit no. 68 or any fresh version of the sketches on it made during the interview, and did not explain to either of them the ideas which he had conceived for designing such an alternative clip. They wanted to bring him to a concrete arrangement for exploiting the “ Klent”; he was, in a no doubt exasperating fashion, havering and seeking to gain time in order that he might again enter a television contest as an individual lacking the support of any associate in his endeavours to secure public recognition of his invention and consequential profits therefrom. He was minded to persuade Copydex to postpone the marketing of the “Klent” until after this contest and in the meantime to exploit an alternative clip; the negotiations had continued for months and it is common ground that a relationship of confidence existed comprising all matters connected with the “Klent.” In view of that relationship and the plaintiff's motives in referring to an alternative clip, it is certain, I think, that he— being by nature a loquacious man, as we have been able to judge in this court—must have expounded and expatiated upon the merits of his newly conceived type of clip, if—and this “ if” is important— he did in fact revert to the topic later in’ the interview, despite the initial snub. He says that he did; but in fact his contemporaneous note makes no mention of this fact or of the drawing which he maintains that he then made; his statement of claim and affidavit of documents afford no corroboration of his account; indeed, they are wholly consistent with the view of the judge that his evidence at the trial upon these matters was a wishful though honest reconstruction not in accordance with the facts. For myself, I do not think that the evidence of the plaintiff was wholly consistent or convincing, though it is difficult to know to what extent his deafness handicapped him as a witness, and I would certainly not be prepared, in reliance upon it, to hold Mr. Boon or Mr. Preston guilty of any deliberate breach of confidence. On the other hand, the plaintiff had by March 13, 1962, invented a. type of grip, to which he was thinking of giving the name “Invisigrip”; it is inherently probable that he mentioned this name at the interview; in September of the same year the respondents chose the same name, from one of three which they considered, for the purported invention which they sought toJuyy 14, 1967 THE WEEKLY LAW REPORTS [1967] 1 WLR. patent; and that was the same device which the plaintiff had roughly indicated by his sketches on exhibit no. 68. The cumulative improbability of coincidence producing such results is so great that J feel it right to look critically at the explanations proffered by the respondents. It was said that Mr. Sudbury devised independently the method of producing a domed tang. When giving evidence at day 3, P. 3D-E, this witness said that when Mr. Boon came to see him with some very rough sketches—" the sort of thing which was on the back of a cigarette packet” (not, of course, produced)—he suggested to him “ that the better way of [producing a sharp edge] was to pierce one hole in one direction and another hole slightly in a different direction, so leaving a sharp point in the remaining material,” and (at p. 4A) that “this has been standard practice for as long as I have been in Dexion making slotted angles.” But at page 16E, when asked what articles he had previously manu- factured in which he used this technique of having two intersecting slots to produce a sharp point, he answered: “None... We have not produced this in any way.” Exhibit D2, the first prototype, rough but perfectible by modification, which soon developed into the “‘Invisigrip” marketed by the defendants, was delivered by Mr. Sudbury’s company, Dexion Ltd., within four days of Mr. Boon’s first visit to him. Mr. Boon said in evidence that he did not give Mr. Sudbury any sketches other than “ scribbles on the actual cardboard model . certainly no question of my having proper drawings. They were jottings which we had made during our discussions with my colleagues” (day 3, p. 21E-F). But in his affidavit of documents (cf. same page at C) he had referred to “various rough sketches and cardboard models prepared in 1962 by myself and others employed by Copydex.” Mr. Turl, whose company made the final product, said that Mr. Boon brought him a dimensioned drawing from which his draughtsmen prepared the working drawing, exhibit P9. Unconscious plagiarism of ideas is no less common, I venture to think, than the phenomenon of multiple contemporaneous invention, of which counsel for the defendants spoke. To my own mind it appears that the proper conclusion to be drawn from all the material before the court, not by any means primarily from the direct evidence, is that the plaintiff did explain his “Invisigrip” idea to Mr. Boon and Mr. Preston; that they absorbed what he told them; and were able to recall enough from their memories to indicate to Mr. Sudbury and Mr. Turl what they wanted them to produce. In doing so, they did not, I think, realise that they were infringing a duty of confidence: I think that they did infringe it. In so holding I do not imply any condemnation of Mr. Boon or Mr. Preston as dishonest men. Mr. Preston made a most revealing statement at day 4, p. 9A, where he said: “. . . action for breach 939 GA 1967 ‘Seager Copyiter Ba wie LJ.940 [1967] | WLR, THE WEEKLY LAW REPORTS —_Juty 14, 1967 CA. of confidence. I did not know such a thing existed . . . the only 1967 ___ problem was that we might infringe his patent.” Seager In my view the appeal succeeds. Copydex tid, Appeal allowed with costs in Court of Appeal before Buckley J. Damages to be assessed by ‘master. Leave to appeal to House of Lords refused. June 8, 1967. The Appeal Committee of the House of Lords (Lord Reid, Lord Guest and Lord Pearson) dismissed the defen dants’ petition for leave to appeal. Solicitors: Courts & Co. A.B, [QUEEN’S BENCH DIVISION] Ages *GARNHAM, HARRIS & ELTON LTD. ». aa ALFRED W. ELLIS (TRANSPORT) LTD. Pavut 5 Contract—Exceptions clause—Breach of fundamental term—Road haulage—Sub-contract without authorisation—Valuable consign: ment—No adequate check on sub-contractor—Whether funda- mental breach of contract—Whether conversion—Applicability of Road Haulage Association's Condition of Carriage, 1961. By an oral contract, which incorporated the Road Haulage Association’s Conditions of Carriage, 1961, the defendant cartiers agreed with the plaintiffs to collect and deliver a load of copper wire from certain premises in London to Glasgow. ‘The occupiers of those premises were authorised to deliver the wire to the defendants only. Without the plaintiffs’ knowledge the defendants sub-contracted for collection and delivery with a man who gave the name of a non-existent firm, collected the goods and vanished. No adequate check was made of the man’s credentials, of the number of the vehicle or whether it had a carrier's licence. By condition 1 of the Road Haulage Associa- tion's general conditions the word “contractor” included any person or persons carrying goods under a sub-contract with the contractor; and by condition 12 the contractor was in no circum- stances whatsoever to be liable for non-delivery of a consignment {Reported by Mrs. Zita Davies, Barrister-at-Law.]