No striking out, but net gain for Bestnet?

Subscription-only service Lawtel has produced this today: it's Vestergaard Frandsen A/S, Vestergaard Frandsen SA and Disease Control Textiles SA v Bestnet Europe Ltd and others [2007] EWHC 2455 (Ch), a 25 October 2007 decision of Roger Wyand QC, sitting as a Deputy Judge of the High Court, England and Wales, concerning an application to strike out an action for breach of confidence. This case is not available on BAILII.

Vestergaard developed a polyethylene mosquito net with an insecticide incorporated into the plastic matrix. Bestnet and the other defendants (two ex-employees of Vestergaard as well as four companies owned and controlled by them) later developed its own product, using polyethylene and an insecticide. According to Vestergaard, Bestnet had developed their product using confidential information relating to Vestergaard's own product. Bestnet in turn submitted an expert report that suggested that the information they used to achieve their product could all have been obtained in the public domain and from industrial information sources that were not secret, such as from polymer and additives manufacturers. The report also concluded that Bestnet's product was significantly different from Vestergaard's, being an original and independent development. Accordingly, said Bestnet, Vestergaard had no case since it hadn't shown it had any information that had the necessary quality of confidence; nor had it identified precisely what information Bestnet was supposed to have used or the evidence to support its allegation.

Roger Wyand QC refused the application to strike out Vestergaard's claim. In his view

* it was unclear how Bestnet's expert sought to separate (i) knowledge gained from the database pleaded by Vestergaard as being confidential if Bestnet had consulted it during the development of their product from (ii) knowledge that Bestnet would have been expected to take away in their heads from their employment with Vestergaard.

* nor was there any evidence to show that Bestnet had taken their information from a manufacturer's data sheet as opposed to Vestergaard's database, as Bestnet had suggested.

* Bestnet sought to rely on the patent for which Vestergaard had applied in order to establish that their information was not confidential, but the information contained in it did not appear to be the same as in the pleaded confidential information.

* Bestnet's expert report regarding the difference between its own final product and the formulation contained in Vestergaard's purported confidential information was clear. If that had been the sole issue the court may well have found that Vestergaard's case had no merits. However, the report did not adequately address the important question of whether Bestnet had gained an advantage through having and using Vestergaard's confidential information.

* although Bestnet's expert report may well prove to be held decisive at trial, in the circumstances it was not possible to rule at this early stage of proceedings, and without a proper examination of the facts, that Vestergaard's case was without merits. Nor was it possible to decide that Vestergaard had not made out a case that Bestnet had used its confidential information.

Says the IPKat, this is interesting: the fact that Bestnet didn't get Vestergaard's action struck out must have disappointed them, but the outcome is that Vestergaard now has a much clearer idea of the substantial obstacles it faces if it wants to press on in the light of Bestnet's report -- which may precipitate a negotiated settlement. Merpel says, mosquitos are one thing, but what about better protection against cat fleas?

Vestergaard-Frandsen disease-control textiles here
Bestnet mosquito game here (scroll down to Mosquito)
Insct-repellent socks here