Ball-Grab Only No Line-Fishing Trip

Ball-grab but no line-fishing trip

Here's around other triumph for wonderful website BAILII (which, incidentally, managed to larn a crisp, construct clean corrected version of Baigent & Leigh 5 Random House, the Da Vinci Code case, out online at 2pm final Friday) - it's BSW Ltd 5 Balltec Ltd, [2006] EWHC 822 (Ch), a Patents Court determination today from Mr Justice Patten.

BSW made too sold ball-grab tools too mooring connectors for anchoring crude oil rigs. Its shareholders, Emmett too Walmsley, agreed to sell a bulk shareholding inwards BSW to a fellowship owned too controlled past times Suttie. After Walmsley retired from the business, Emmett resigned equally a managing director of BSW. Shortly later Emmet resigned equally a BSW director, Balltec was incorporated, Emmett existence both a managing director too a shareholder. Balltec began trading inwards straight contest alongside BSW inwards September 2004.

BSW, alleging that Balltec infringed its pattern right too copyright, too that Emmett acted inwards breach of his fiduciary duty to BSW, applied for pre-action disclosure of diverse documents nether dominion 31.16(3) of the Civil Procedure Rules:

"The courtroom may brand an monastic enjoin nether this dominion solely where (a) the respondent is probable to endure a political party to subsequent proceedings; (b) the applicant is also probable to endure a political party to those proceedings; (c) if proceedings had started, the respondent’s duty past times way of criterion disclosure, prepare out inwards dominion 31.6, would extend to the documents or classes of documents of which the applicant seeks disclosure; (d) disclosure earlier proceedings create got started is desirable inwards monastic enjoin to (i) dispose fairly of the anticipated proceedings; (ii) assistance the dispute to endure resolved without proceedings; or (iii) salve costs".

The application for disclosure was made on the Earth that the pattern too other drawings relating to Balltec’s 2004 production gain would discover whether at that topographic point was whatsoever heart inwards its belief that the designs either originated from run carried out earlier July 2004 or involved the purpose of BSW’s ain designs too pattern drawings.

Balltec objected to discovery, contending that BSW’s show did non found what rights, if any, were infringed. Nor was at that topographic point whatsoever show to back upwards whatsoever arguable activity for infringement or for breach of fiduciary duty. According to Balltec this was a line-fishing expedition, based on null to a greater extent than than speculation, too at that topographic point was no existent foundation fifty-fifty for BSW’s alleged fears.

The inquiry arose equally to whether too when a potential claimant, existence unable to found its representative on the available evidence, powerfulness invoke the powers of the courtroom nether CPR 31.16 inwards monastic enjoin to regain whether it did inwards fact create got a goodness drive of action.

Patten J dismissed the applications for disclosure.

* to permit dominion 31.16 to give-up the ghost a way of examining a competitor’s otherwise surreptitious designs on the Earth that around sort of infringement powerfulness create got taken house was non permissible unless (i) at that topographic point was at to the lowest degree a clear too convincing evidential Earth for the belief that acts of infringement powerfulness create got taken house too the (ii) courtroom could endure satisfied that the pre-action disclosure sought was highly focused. Otherwise the potential for abuse was obvious.

* To say that ane could found the park confidentiality lodge was non an response inwards itself to the objection that at that topographic point was no Earth for existence required to offering upwards the confidential cloth inwards the kickoff place.

* the gauge doubted that the existent objection to the grant of regain could endure overcome past times re-writing the dominion too thence equally to innovate a quite dissimilar physical care for designed to allow the court, through an expert, to await at the documents to come across whether they were potentially incriminating earlier deciding on whether to brand the monastic enjoin genuinely sought. The courtroom had no ability to create that.

* this was a speculative claim inwards which BSW had based its apparent concerns on uncorroborated statements of impression too a theory nearly the fourth dimension taken to pattern the tools which was unsubstantiated past times reference to the show of whatsoever experienced designers inwards the field.

thinks Patten J has got it only right. BSW tin notwithstanding sue, inviting the courtroom to conclude that, given the similarities of Balltec’s products to BSW’s too the brusk lead-in fourth dimension for developing them, copyright powerfulness endure inferred - fifty-fifty inwards the absence of discovery. Merpel says, the persuasion of letting an skillful create upwards one's heed the condition of documents sought inwards regain is quite appealing. Even though dominion 31.16 doesn't supply for it, it powerfulness endure a goodness persuasion to give judges this selection - too thence long equally they can't purpose it inwards situations where it wouldn't endure appropriate.

BSW wins Queen's Award for ball-grabs here
More on Balltec here
Famous ball select grip of here (adult content, unless you're a soccer fan)