You're no gent, says Court of Appeal

In October 2006 Mr Justice Mann (Patents Court, England and Wales) gave ruling in Cinpres Gas Injection Ltd v Melea Ltd [2006] EWHC 2451 (Ch) which very greatly upset the IPKat (see here). In short, Cinpres sought a declaration that it was entitled to be registered as owner of a patent for gas injection moulding technology used in the plastics industry. But did the inventor, James Hendry, make the invention when working for Cinpres -- or was he then working for Ladney, an American businessman who set up Melea as a patent holding company? Hendry first worked for Cinpres but left the company after falling out with it in 1985. A year and a quarter later, after entering into a settlement agreement with Cinpres that contained a confidentiality clause, Hendry took up a consultancy with Ladney with whom he worked till 1991. In 2001 Hendry returned to Cinpres, this time as a consultant. Meanwhile in 1996 the UK Patent Office had ruled that Hendry had discovered the invention while working for Ladney, in consequence of which Melea was registered as proprietor. Hendry, who had given evidence before the Patent Office in support of Ladney, subsequently wanted to give evidence that he had discovered the invention while working for Cinpres. Cinpres said it was not barred by the earlier proceedings from seeking a fresh declaration that it was entitled to the patent, since Hendry was willing to admit that he had perjured himself when giving evidence in the earlier proceedings and to testify that Ladney had procured, or taken advantage of, his decision to do so.

Mann J dismissed Cinpres' application. He agreed that Hendry had lied on oath and had both acquired and deployed knowledge of the invention while working for Cinpres. Also, the use of the invention was something that Hendry should have kept confidential under the terms of the settlement agreement with Cinpres; his perjured evidence was therefore relevant to a material matter. However, since Ladney had not actually induced Hendry to commit perjury and did not know of it or take any advantage of it, the decision in the earlier proceedings could not be impeached and it governed the issue of the ownership of the patent. Said Mann J:

"I appreciate that that result might be considered by some as less than satisfactory – the entitlement to the patent is governed by a decision which was reached after receiving and accepting perjured evidence and which might have been different if the truth had been told. However, that is the effect of the requirements of the applicable principles, as to which there was no dispute between the parties".

The Court of Appeal today reversed this decision (text in full on BAILII). The Court (Sir Igor Judge, President of the Queen's Bench Division, plus Lords Justices Jacob and Richards) commented that the parties had taken so many new points that the case was scarcely recognisable as that upon which Mann J originally had to decide.

The anonymous judge giving the decision of the Court of Appeal (the BAILII transcript posted today doesn't mention names, but the IPKat suspects it might just be Jacob LJ -- even though para. 52 mentions him in the third person ...). Anyway, the Court had some interesting things to say about the manner in which an appellate court should consider a finding of dishonesty by a trial judge:

"It is one thing for the Court of Appeal to hold a man a perjurer for the first time on appeal but quite another to hold that an established perjurer was more extensive in his perjury than held by the judge. The real question here is simply whether the Judge was wrong in his evaluation of all the evidence".

In this regard, said the Court,

"We are not satisfied that he reached the wrong conclusion on the facts. Ladney is not shown to have been complicit in Hendry's perjury at the time. It does not follow, however, that he has not himself adopted and relied upon that perjury and Hendry's false story".

The Court then effectively pinned Hendry's evidence on Ladney:

" ... we have come to the conclusion that Hendry's evidence the first time round should be regarded as that also of Ladney and that Hendry's fraud should be treated as also that of Ladney. Both Hendry and Ladney were actually parties to the first proceedings. Hendry was seeking to justify his claim to be the inventor, to be named on the patent as such and to have had the right to have assigned the property in the invention to Ladney. Ladney was claiming to be the owner of the right to apply for the patent by virtue of assignment from Hendry. They had a common foe, Cinpres, and made common, and completely intermixed cause against it. One could not succeed without the other. True it is that Ladney's claim was much the more valuable commercially, but we do not see that value has anything to do with it. Besides even Hendry had a commercial interest in the patent belonging to Ladney for he would be entitled to royalties if that were so. Not so if the patent belonged to Cinpres.

Putting it another way it would be wrong to say that Hendry was a "mere witness" in the first proceedings. He was more than merely a witness for Ladney – he was Ladney's "comrade in arms". His fraud by way of perjury was being adopted by Ladney and should be regarded as Ladney's. Hendry himself clearly could not resist the earlier judgment being set aside on the grounds of his fraud. Given that, the whole judgment is unravelled and should be set aside".

The IPKat notes the genuine indignation of the Court, whose judgment opened with the stern comment that

"Mann J had the unenviable task of deciding, as between two liars and perjurers, what the truth was (or at least what was most likely) about the making and ownership of the invention the subject of the Patent. ... James Hendry was one of the liars. The other was Michael Ladney. Neither deserves the courtesy of a 'Mister'".

Merpel is delighted with the outcome of this appeal. A sensitive Kat, she has suffered for fifteen months from the notion that British patent law could operate in such a manner as to deprive Cinpres of a patent to which it was morally and, in her opinion legally, entitled.

The truth, the whole truth and nothing but the truth here
When truth is fiction here