Decision Nº O/275/13 from Intellectual Property Office - (Patent decisions), 23 July 2013
| Judge | Mr P Thorpe |
| Court | Intellectual Property Office (United Kingdom) |
| Date | 23 July 2013 |
| Patent Number | GB 2479863 A, GB2458698B |
| Administrative Decision Number | O/275/13 |
| Parties | Fireworks Fire Protection Limited and Watermist Limited And Mr Andrew James Cooke and Mr Kevin Alan Lesley Musk |
BL O/275/13
23rd July 2013
PATENTS ACT 1977
BETWEEN
Fireworks Fire Protection Limited and Watermist
Limited
and
Mr Andrew James Cooke and Mr Kevin Alan Lesley
Musk
PROCEEDINGS
Claim by Fireworks under sections 8 and 39 of the Patents Act 1977 in
respect of patent application GB 2479863 A and a claim by Mr Cooke under
sections 13 and 37 of the Patents Act 1977 in respect of patent GB2458698B.
HEARING OFFICER
Phil Thorpe
DECISION
Introduction
1. This decision relates to a dispute between Mr Andrew James Cooke and Mr
Kevin Alan Lesley Musk on one side and Fireworks Fire Protection Limited
(Fireworks) and Watermist Limited on the other. It concerns a claim by
Fireworks to entitlement to a pending patent application proceeding in the
name of Mr Cooke and Mr Musk and a claim by Mr Cooke to entitlement to a
patent granted to Watermist.
2. The patent application in issue is GB 1006737.9 entitled “An improved fire
hose system”. It was filed on 22nd April 2010 in the names of Mr Andrew
Cooke and Mr Kevin Musk. Both Mr Cooke and Mr Musk are also named as
co-inventors. The application was published on 2nd November 2011 as GB
2479863 A.
3. On 15th October 2010 Fireworks initiated proceedings under sections 8 and
39 of the Patents Act 1977. Fireworks claim that neither Mr Cooke nor Mr
Musk is entitled to be named as either applicant or inventor. Rather the true
inventors are Mr William Bridgman and Mr Derek Killaspy and that Fireworks
or Watermist is entitled to the invention by virtue of section 39(1) irrespective
of which of Mssrs Cooke, Musk, Bridgman and Killaspy are the true inventors.
4. In a preliminary decision1 date 10th June 2011, I struck out all aspects of that
claim save for the claim that Fireworks is entitled to the invention under of
section 39(1) by virtue of its employment of Mr Cooke and Mr Musk.
5. The patent in issue is GB 2458698 B entitled “Firefighting Unit”. It was filed on
28th March 2008 as GB 0805683.0. It was granted on 23rd February 2011 to
Watermist, with Mr William Bridgman named as the sole inventor.
6. On 15th February 2011, Mr Cooke, initiated proceedings under sections 13
and 37 of the Patents Act 1977 claiming that he should be named as co-
inventor and co-applicant.
7. Both matters came before me at a hearing on 26-27th September 2012, at
which Mr Ian Silcock, instructed by IP21, appeared as Counsel for Watermist
Ltd and Fireworks Fire Protection Ltd. Mr Tom Alkin, instructed by Novagraaf,
appeared as Counsel for Mr Cooke and Mr Musk. I very much regret the
length of time it has taken to issue this decision.
Preliminary Point
8. Immediately prior to the hearing, Watermist & Fireworks sought to admit
further evidence. I heard arguments from both sides on the admissibility of
this new evidence during the course of the hearing. I decided for reasons set
out clearly in the transcript of the hearing not to admit it.
Background to the dispute
9. It is useful I believe to describe briefly the business of the parties involved and
the general chronology of events which culminated in the contested patent
and patent application.
Fireworks & Watermist
10. Fireworks was formed in the mid 1990’s by Mr Derek Killaspy to install fire
suppression equipment on behalf of a number of manufacturers in particular
two companies Fogtec and Marioff. Fireworks customers are generally large
companies like hotels, factories and government bodies. Fireworks also does
some work as a main contractor. This involved Fireworks’ staff surveying the
prospective company to identify the components required which would then
be bought in and installed.
1 BL O/201/11
11. Fireworks did not manufacture or design its own products. Where non-
standard parts were required to enable installation, for example a special
bracket to support a pipe, then these were sourced outside including from a
manufacturing company called Warren Services Ltd. The directors of Warren
Services include Mr William Richard Bridgman and his father Mr Richard
Bridgman.
12. In around 2005, Mr Killaspy sought to move Fireworks away from being a
subcontractor to working more directly with end-users. He teamed up with Mr
William Bridgman to form a new entity, Watermist Ltd to market and supply
products which Warren would manufacture and Fireworks would install. Mr
Derek Killaspy and Mr William Bridgman are both directors of Watermist. The
intention was that any intellectual property in any new products would be held
by Watermist.
13. Watermist’s first patent, GB 2436538 was granted on 9th April 2008 with a
filing date of 30th March 2006. It relates to a spray misting nozzle for fire
protection equipment and names Mr William Bridgman as the sole inventor.
The spray nozzle was apparently intended to solve the problem of how to
generate fine misting sprays from a high pressure input. This particular patent
is not in issue here.
Fireworks’ employment of Mr Cooke and Mr Musk
14. Fireworks first employed Mr Andrew Cooke on contract in 1996. He became
an employee in 1999. His initial role was site engineer with responsibility for
installing fire suppression systems. All the evidence suggests that Mr Cooke
was a valued and respected employee of Fireworks. He was promoted to
Senior Supervisor in 2002.
15. Fireworks employed Mr Kevin Musk in June 2002, initially as a Workshop
engineer and Storeman and then subsequently as a Site Engineer.
16. The relationship between Mr Cooke and Mr Killaspy, which had apparently
been good, deteriorated from around 2009 onwards culminating in Mr Cooke’s
dismissal from Fireworks, together with that of Mr Musk in July 2010.
17. One factor that appears to have played a part in their dismissal was that Mr
Cooke and Mr Musk had applied for a patent in their own name whilst
employed by Fireworks. Fireworks is claiming that it should be entitled to that
application.
Evidence and Witnesses
18. Witness statements have been provided by the following: Mr Andrew Cooke,
Mr Kevin Musk, Ms Tracey Cooke of Novagraaf (IP Attorney for Mr Cooke and
Mr Musk), Mr William Bridgman, Mr Derek Killaspy and Mr Jeffrey Morris and
Mr William Jones both of IP21 (IP Attorneys for Watermist).
19. With the exception of Mr Morris, all the witnesses who provided witness
statements were cross examined. I will say a little about how I assessed the
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