Simple Imports in UK Law

It follows that it is not enough for A to assert that the invention or concept (we use the expression loosely at this stage) was known to its employees and that that itself gave A an entitlement to make an application under s.7 What has to be shown is that A is entitled to B's application or part of it. In the usual run of case, such an entitlement will arise by reason of the operation of some independent rule of law, such as contract, breach of confidence or the like.

We think it follows that, whether or not A is entitled to apply for a patent pursuant to s.7 is, as such, irrelevant to whether or not he can claim an entitlement to an application by B. For the latter he must be able to show that in some way B was not entitled to apply for the patent, either at all or alone. It follows that A must invoke some other rule of law to establish his entitlement—that which gives him title, wholly or in part, to B's application.

Moreover, submitted Mr Watson, it can hardly be the case that Parliament intended to confer on the Comptroller a jurisdiction to consider breach of confidence—he was just given a simple jurisdiction over entitlement. And doubtless that is why the Comptroller is empowered under s.8( 7). s.12(2) and s.37(8) to decline to decide the question of entitlement if it would more properly be decided by a court.

Accordingly we think one is driven to the conclusion that s.8 is referring essentially to information in the specification rather than the form of the claims. It would be handy if one could go by the claims, but one cannot. s. 8 calls for identification of information and the rights in it. Who contributed what and what rights if any they had in it lies at the heart of the inquiry, not what monopolies were actually claimed.

The words “replacement” and “not materially larger” must be read together and in the same context. So read, I do not think that the meaning of the word “material”, notwithstanding its use in planning law more generally, can bear the weight which the authority sought to give it. The qualification provides the necessary flexibility to allow planning judgment and common sense to play a part, and it is not a precise formula.

In the period September to November 2005, in 99 deals, the Company made a profit of 50 pence per unit notwithstanding that the sale price on the phones varied from about £153 to £489. This explanation, in my judgment really lacked credibility. In my judgment, coupled with the evidence of lack of negotiations of price and other details of contracts, this forms part of the evidence that the transactions were not genuine commercial transactions.

Based on these factors, in my judgment, the Respondent was aware that these transactions formed part of MTIC fraud. I reject accordingly his evidence that he was unaware of the MTIC fraud and I also reject his evidence that he honestly believed that these were commercial transactions and that there was he believed no link to MTIC fraud. Such a stance is not credible in the light of my findings on the evidence set out above.