Seager v Copydex Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE SALMON,LORD JUSTICE WINN |
| Judgment Date | 18 April 1967 |
| Judgment citation (vLex) | [1967] EWCA Civ J0418-2 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 April 1967 |
[1967] EWCA Civ J0418-2
The Master of the Rolls (Lord Denning)
Lord Justice Salmon and
Lord Justice Winn
In The Supreme Court of Judicature
Court of Appeal
Civil Division
From Mr Justice Buckley
The Appellant appeared in person.
Mr Peter Ford (instructed by Messrs Courts & Co.) appeared as Counsel for the Respondents.
Mr Seager is the proprietor of a light engineering firm at Maiden. He is a clockmaker turned inventor. In 1953 a neighbour's child fell on a loose carpet and hurt herself badly. Mr Seager was so moved that he sought to devise a remedy. He produced a special grip to keep a carpet down. It was a narrow strip of metal with spikes on if. This metal strip was nailed to the floor or stairs. The carpet was stretched over it so as to be caught by the spikes. Then it was tightened up. It became taut in use as people trod on it. He called this grip the "Klent". That was a fancy name to denote its purpose to "catch, cling and clench". He took out a patent for it, No. 770279 and registered the name "Klent" as a trade mark. The inventive step lay in the special construction of the spikes. They were cut out of the metal and bent in a special way so as to be very like a dragon's teeth, sharp and strong.
In February 1961 the B.B.C. had a programme on television called the "Get Ahead" Contest. It was sponsored by the "Daily Mail". It showed people with ideas worthy of exploitation. Mr Seager took part in it. He showed his "Klent" carpet grip. He said he wanted a selling organisation to back it. The programme was seen by Mr Harry Preston of Copydex Limited. They are manufacturers of adhesives, with a considerable selling organisation. Mr Preston was very interested and got into touch with Mr Seager. On the 22nd March, 1961, he tailed on Mr Seager pnd took away samples of the "Klent" grip. Then followed negotiations for the marketing of the "Klent" grip by Copydex Limited. There were two persons who represented Copydex in the negotiations. One was Mr Harry Preston. He was an accountant by profession, and was at this time the acting secretary of Copydex and the assistant general manager. The other was Mr John Boon. He was the sales manager.
The negotiations continued for over a year, in the course of which Mr Seager told them all about the "Klent" grip. But the negotiations came to an end about May 1962. I need not go throughthem in detail because we are not here concerned directly with the "Klent" grip. We are concerned with another carpet grip which, for convenience, I will call the "Invisigrip".
Mr Seager says that, in the course of the negotiations about the "Klent" grip, he disclosed to Mr Preston and Mr Boon an alternative carpet grip which would be cheaper to produce. He even suggested the name "Invisigrip". It was a narrow strip of metal like the "Klent", but the spikes ware constructed differently. Instead of being like dragon's teeth, the spikes were V-prongs, which were made sharp and strong by being specially shaped in that they were domed like half a cone.
In May 1962, as soon as the negotiations about the "Klent" grip fell through, Copydex Ltd. set to work to make a carpet grip of their own. It turned out to be very similar to Mr Seager's alternative suggestion. They gave it the very similar name "Invisigrip". And they applied for a patent for it, claiming it was their own invention. It has been a great success. They have sold it in large quantities.
Mr Seager claims that Copydex Limited. must have used the information that he gave to them during the negotiations about the "Klent" grip: and that this was a breach of confidence.
Mr Justice Buckley rejected Mr Seager's claim. He thought that there was no significant disclosure at all. Mr Seager appeals to this Court. He conducted his case in person. He is deaf and would have been at a great disadvantage but for modern aids. We sat in Queen's Bench Court 1, where there are recording machines. The official shorthand writer was a great help. He arranged for Mr Seager to have earphones: and Counsel and ourselves to have microphones. Then the case was heard just as well as if he had not been deaf. It involved a detailed consideration of the facts.
1. THE DISCLOSURE OF THE ALTERNATIVE GRIP
In February 1962 Mr Seager was hoping to be successful with "Klent" in the second "Daily Mail" contest: but Copydex Limited.were keen to get production going before the contest. Mr Seager sought to meet their wishes by putting an alternative before them. On the 26th February, 1962, he wrote to Mr Boon, the sales manager of Copydex: "By making a slight difference in design and finish, I could supply you in quantities, stamped Copydex etc., at a figure that will give you the margin and price you require".
In consequence, on the 13th March, 1962, Mr Harry Preston (the assistant manager of Copydex Limited.) and Mr Boon (the sales manager) went to Mr Seager's house. Mr Seager's contem-porary note reads: "My suggestion of a cheaper angle with 'V' tangs, zinc-coated, was turned down. They want the 'Klent' with its superior grip and stove-enamelled". Mr Seager in his evidence said: "I produced these (sketches) as soon as they arrived. I enthused on this and started telling about it… Only a few minutes. I started explaining the type of grip to go on to the other type, when Mr Boon said: "We do not want it; it is all or nothing. We have the 'Klent'". Mr Preston in his evidence said: "We asked Mr Seager what he meant by the phrase 'slight modification' in his letter. I remember he started talking about a 'V' tang design, and suggested we should pursue the idea of him, Mr Seager, making this for us, because in this way he would be able to test the efficiency of our marketing organisation, whilst at the same time he would be free to go ahead with his 'Klent' in the 'Daily Mail' contest. Mr Boon interrupted him at this point to say that we were quite uninterested in such a suggestion". Mr Boon said much the same.
Thus the evidence on both sides shows that Mr Seager did disclose some features of this alternative grip, but was then cut short by Mr Boon.
Mr Seager says that at the end of the meeting he reverted to the alternative grip and made a further sketch on a piece of paper which he thinks Mr Preston took away with him. Mr Boon said he had no memory of it. Mr Preston denied taking anysketch away: and said that to the best of his recollection Mr Seager did not make any sketches for them.
The Judge accepted that Mr Seager conceived the idea of the alternative grip with a new design of tooth. But he held that Mr Seager did not disclose anything significant of it to Copydex. In particular, the Judge rejected Mr Seager's evidence as to what took place at the end of the meeting. He said that it was coloured by wishful hindsight. But the plain fact is that, when Copydex cane to make their own grip, it followed very closely the alternative grip which Mr Seager had devised. The spikes were V-prongs, made sharp and strong by being shaped and domed like half a cone.
2. THE NAME "INVISIGRIP"
Mr Seager says that, besides "Klent", he had another name available for a carpet grip. It was the name "Invisigrip" or "Invisgrip". It was suggested to Mr Seager in September 1960 by a Mr Glatzel. Mr Seager kept the name "Invisgrip" in reserve as an alternative to "Klent". He says that, at one of the meetings in 1962 with Mr Boon and Mr Preston, he told them that he had this name in reserve and suggested that it might be used pending the "Daily Mail" contest. Mr Boon and Mr Preston deny that Mr Seager ever mentioned it to them. The Judge stated the conflict but does not resolve it. But we have the plain fact that when Copydex Limited. did bring out their carpet grip, they called it "Invisigrip".
3. COPYDEX LIMITED. MAKE PLANS TO ELUDE MR SEAGER'S PATENT.
In the beginning of May 1962 Copydex Limited. thought that Mr Seager was being evasive, and that the negotiations with him would not succeed. So they decided to go ahead on their own. The evidence shows clearly that they wanted to find a device which was in principle similar to the "Klent" grip, but did not infringe Mr Seager's patent. They took advice as to the strength of Mr Seager's patent so as to see if it was valid. They also sought out ways to elude the patent.
Much light is thrown on their state of mind by an important letter which Mr Harry Preston wrote to their own solicitors (of Copydex) on the 9th July, 1962, It is worth quoting: "Copydex is considering the manufacture and sale of metal carpet grips to be fitted to the risers of stairs in principle basically similar to the carpet grip which is the subject of the patent specification which I left with you. Do you agree that the principle of the metal carpet grip is in itself not new and patentable, and that the patent therefore rests on the location, angle and strength of a prong or tooth as detailed in the specification? If the carpet grip which we would manufacture has a tooth which in position, angle and design is different, would this be a sufficient answer to any accusation that we are in breach of the patent? Would it be necessary to have a different location for the prong, plus a different angle, plus a different design of the tooth, or would the difference in any one of these three points be adequate?".
That paragraph shows that Mr Harry Preston had already acquired, in the course of the negotiations, a good deal of knowledge about the "Klent" grip and was anxious to make an alternative grip basically similar to it but eluding the patent: and to do this by using an alternative prong or tooth.
The letter also contained an important question about information. Mr Preston asked the solicitors this question: "If we go ahead with the production and sale, and this...
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