mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Amber Size &amp; Chemical Co Ltd v Menzel (1913) 30 RPC 433
Outcome: cited
essential attribute of confidential information is what has been described as "relative secrecy": Franchi v Franchi [1967] RPC 149 , at 153; Interfirm Comparison (Australia) Pty Ltd v Law Society of New South Wales [1975] 2 NSWLR 104 at 119. Whether this attribute exists in a given case will be often a question of degree and a variety of criteria have been invoked in varying contexts to sharpen the inquiry to be made: (i) is the information in question widely known, or publicly available in the relevant industry, trade, etc: Coco at 51; cf Ansell Rubber Co at 50; Titan Group Pty Ltd v Steriline Manufacturing Pty Ltd (1990) 19 IPR 353 at 381; (ii) has the confider made the information public by using it in its manufactured products and placing it on the market, or would the ascertainment of the information from the manufactured product by reverse engineering or otherwise require the expenditure of time, effort, money or experimentation: see eg Ackroyds (London) Ltd v Islington Plastics Ltd [1962] RPC 97 ; Aquaculture Corporation v New Zealand Green Mussel Co Ltd (1985) 5 IPR 357 at 379; (iii) did the confider produce or obtain the information only after the expenditure of time and/or money by way of research or in the application of skill and ingenuity; Saltman Engineering Co Ltd ; cf United Sterling Corporation v Felton [1974] RPC 162 ; Interfirm Comparison (Australia) Ltd , at 117; could another person acquire or duplicate the information only by going through a like process: Cranleigh Precision Engineering Ltd v Bryant [1966] RPC 81 at 89-90; Ansell Rubber Co at 49; (iv) what steps has the confider taken to preserve the secrecy of the information and to prevent it becoming public knowledge: Amber Size &amp; Chemical Co Ltd v Menzel (1913) 30 RPC 433 at 438; Dean, at [3.165]-[3.175]; (v) is the information intrinsically valuable or is it valuable to the confider or to a competitor or other interested party: Surveys &amp; Mining Ltd v Morrison [1969] Qd R 470 ; Measures Brothers Ltd v Measures [1910] 1 Ch 336 ; and (vi) would a reasonable person in all the circumstances recognise the information to be the "property" of the confider: Deta Nominees Pty Ltd v Viscount Plastic Products Pty Ltd [1979] VR 167 at 191; Printers &amp; Finishers Ltd v Holloway (No 2) [1965] RPC 239 at 255.
Case: Surveys &amp; Mining Ltd v Morrison [1969] Qd R 470
Outcome: cited
essential attribute of confidential information is what has been described as "relative secrecy": Franchi v Franchi [1967] RPC 149 , at 153; Interfirm Comparison (Australia) Pty Ltd v Law Society of New South Wales [1975] 2 NSWLR 104 at 119. Whether this attribute exists in a given case will be often a question of degree and a variety of criteria have been invoked in varying contexts to sharpen the inquiry to be made: (i) is the information in question widely known, or publicly available in the relevant industry, trade, etc: Coco at 51; cf Ansell Rubber Co at 50; Titan Group Pty Ltd v Steriline Manufacturing Pty Ltd (1990) 19 IPR 353 at 381; (ii) has the confider made the information public by using it in its manufactured products and placing it on the market, or would the ascertainment of the information from the manufactured product by reverse engineering or otherwise require the expenditure of time, effort, money or experimentation: see eg Ackroyds (London) Ltd v Islington Plastics Ltd [1962] RPC 97 ; Aquaculture Corporation v New Zealand Green Mussel Co Ltd (1985) 5 IPR 357 at 379; (iii) did the confider produce or obtain the information only after the expenditure of time and/or money by way of research or in the application of skill and ingenuity; Saltman Engineering Co Ltd ; cf United Sterling Corporation v Felton [1974] RPC 162 ; Interfirm Comparison (Australia) Ltd , at 117; could another person acquire or duplicate the information only by going through a like process: Cranleigh Precision Engineering Ltd v Bryant [1966] RPC 81 at 89-90; Ansell Rubber Co at 49; (iv) what steps has the confider taken to preserve the secrecy of the information and to prevent it becoming public knowledge: Amber Size &amp; Chemical Co Ltd v Menzel (1913) 30 RPC 433 at 438; Dean, at [3.165]-[3.175]; (v) is the information intrinsically valuable or is it valuable to the confider or to a competitor or other interested party: Surveys &amp; Mining Ltd v Morrison [1969] Qd R 470 ; Measures Brothers Ltd v Measures [1910] 1 Ch 336 ; and (vi) would a reasonable person in all the circumstances recognise the information to be the "property" of the confider: Deta Nominees Pty Ltd v Viscount Plastic Products Pty Ltd [1979] VR 167 at 191; Printers &amp; Finishers Ltd v Holloway (No 2) [1965] RPC 239 at 255.
Case: Measures Brothers Ltd v Measures [1910] 1 Ch 336
Outcome: cited
essential attribute of confidential information is what has been described as "relative secrecy": Franchi v Franchi [1967] RPC 149 , at 153; Interfirm Comparison (Australia) Pty Ltd v Law Society of New South Wales [1975] 2 NSWLR 104 at 119. Whether this attribute exists in a given case will be often a question of degree and a variety of criteria have been invoked in varying contexts to sharpen the inquiry to be made: (i) is the information in question widely known, or publicly available in the relevant industry, trade, etc: Coco at 51; cf Ansell Rubber Co at 50; Titan Group Pty Ltd v Steriline Manufacturing Pty Ltd (1990) 19 IPR 353 at 381; (ii) has the confider made the information public by using it in its manufactured products and placing it on the market, or would the ascertainment of the information from the manufactured product by reverse engineering or otherwise require the expenditure of time, effort, money or experimentation: see eg Ackroyds (London) Ltd v Islington Plastics Ltd [1962] RPC 97 ; Aquaculture Corporation v New Zealand Green Mussel Co Ltd (1985) 5 IPR 357 at 379; (iii) did the confider produce or obtain the information only after the expenditure of time and/or money by way of research or in the application of skill and ingenuity; Saltman Engineering Co Ltd ; cf United Sterling Corporation v Felton [1974] RPC 162 ; Interfirm Comparison (Australia) Ltd , at 117; could another person acquire or duplicate the information only by going through a like process: Cranleigh Precision Engineering Ltd v Bryant [1966] RPC 81 at 89-90; Ansell Rubber Co at 49; (iv) what steps has the confider taken to preserve the secrecy of the information and to prevent it becoming public knowledge: Amber Size &amp; Chemical Co Ltd v Menzel (1913) 30 RPC 433 at 438; Dean, at [3.165]-[3.175]; (v) is the information intrinsically valuable or is it valuable to the confider or to a competitor or other interested party: Surveys &amp; Mining Ltd v Morrison [1969] Qd R 470 ; Measures Brothers Ltd v Measures [1910] 1 Ch 336 ; and (vi) would a reasonable person in all the circumstances recognise the information to be the "property" of the confider: Deta Nominees Pty Ltd v Viscount Plastic Products Pty Ltd [1979] VR 167 at 191; Printers &amp; Finishers Ltd v Holloway (No 2) [1965] RPC 239 at 255.
Case: Deta Nominees Pty Ltd v Viscount Plastic Products Pty Ltd [1979] VR 167
Outcome: cited
essential attribute of confidential information is what has been described as "relative secrecy": Franchi v Franchi [1967] RPC 149 , at 153; Interfirm Comparison (Australia) Pty Ltd v Law Society of New South Wales [1975] 2 NSWLR 104 at 119. Whether this attribute exists in a given case will be often a question of degree and a variety of criteria have been invoked in varying contexts to sharpen the inquiry to be made: (i) is the information in question widely known, or publicly available in the relevant industry, trade, etc: Coco at 51; cf Ansell Rubber Co at 50; Titan Group Pty Ltd v Steriline Manufacturing Pty Ltd (1990) 19 IPR 353 at 381; (ii) has the confider made the information public by using it in its manufactured products and placing it on the market, or would the ascertainment of the information from the manufactured product by reverse engineering or otherwise require the expenditure of time, effort, money or experimentation: see eg Ackroyds (London) Ltd v Islington Plastics Ltd [1962] RPC 97 ; Aquaculture Corporation v New Zealand Green Mussel Co Ltd (1985) 5 IPR 357 at 379; (iii) did the confider produce or obtain the information only after the expenditure of time and/or money by way of research or in the application of skill and ingenuity; Saltman Engineering Co Ltd ; cf United Sterling Corporation v Felton [1974] RPC 162 ; Interfirm Comparison (Australia) Ltd , at 117; could another person acquire or duplicate the information only by going through a like process: Cranleigh Precision Engineering Ltd v Bryant [1966] RPC 81 at 89-90; Ansell Rubber Co at 49; (iv) what steps has the confider taken to preserve the secrecy of the information and to prevent it becoming public knowledge: Amber Size &amp; Chemical Co Ltd v Menzel (1913) 30 RPC 433 at 438; Dean, at [3.165]-[3.175]; (v) is the information intrinsically valuable or is it valuable to the confider or to a competitor or other interested party: Surveys &amp; Mining Ltd v Morrison [1969] Qd R 470 ; Measures Brothers Ltd v Measures [1910] 1 Ch 336 ; and (vi) would a reasonable person in all the circumstances recognise the information to be the "property" of the confider: Deta Nominees Pty Ltd v Viscount Plastic Products Pty Ltd [1979] VR 167 at 191; Printers &amp; Finishers Ltd v Holloway (No 2) [1965] RPC 239 at 255.
Case: Printers &amp; Finishers Ltd v Holloway (No 2) [1965] RPC 239
Outcome: cited
essential attribute of confidential information is what has been described as "relative secrecy": Franchi v Franchi [1967] RPC 149 , at 153; Interfirm Comparison (Australia) Pty Ltd v Law Society of New South Wales [1975] 2 NSWLR 104 at 119. Whether this attribute exists in a given case will be often a question of degree and a variety of criteria have been invoked in varying contexts to sharpen the inquiry to be made: (i) is the information in question widely known, or publicly available in the relevant industry, trade, etc: Coco at 51; cf Ansell Rubber Co at 50; Titan Group Pty Ltd v Steriline Manufacturing Pty Ltd (1990) 19 IPR 353 at 381; (ii) has the confider made the information public by using it in its manufactured products and placing it on the market, or would the ascertainment of the information from the manufactured product by reverse engineering or otherwise require the expenditure of time, effort, money or experimentation: see eg Ackroyds (London) Ltd v Islington Plastics Ltd [1962] RPC 97 ; Aquaculture Corporation v New Zealand Green Mussel Co Ltd (1985) 5 IPR 357 at 379; (iii) did the confider produce or obtain the information only after the expenditure of time and/or money by way of research or in the application of skill and ingenuity; Saltman Engineering Co Ltd ; cf United Sterling Corporation v Felton [1974] RPC 162 ; Interfirm Comparison (Australia) Ltd , at 117; could another person acquire or duplicate the information only by going through a like process: Cranleigh Precision Engineering Ltd v Bryant [1966] RPC 81 at 89-90; Ansell Rubber Co at 49; (iv) what steps has the confider taken to preserve the secrecy of the information and to prevent it becoming public knowledge: Amber Size &amp; Chemical Co Ltd v Menzel (1913) 30 RPC 433 at 438; Dean, at [3.165]-[3.175]; (v) is the information intrinsically valuable or is it valuable to the confider or to a competitor or other interested party: Surveys &amp; Mining Ltd v Morrison [1969] Qd R 470 ; Measures Brothers Ltd v Measures [1910] 1 Ch 336 ; and (vi) would a reasonable person in all the circumstances recognise the information to be the "property" of the confider: Deta Nominees Pty Ltd v Viscount Plastic Products Pty Ltd [1979] VR 167 at 191; Printers &amp; Finishers Ltd v Holloway (No 2) [1965] RPC 239 at 255.
Case: Nichrotherm Electrical Co Ltd v Percy [1956] RPC 272
Outcome: cited
alternative test the "purpose" test asks: Has confidential information been imparted for what was known, or ought reasonably to have been known, to be only for a particular purpose? If it has, its use must be limited to that purpose. This approach has commonly been used in cases in which confidential industrial information has been disclosed (usually under contract) to a manufacturer either by way of licence for a period or so as to manufacture a product for the confider: see Saltman Engineering , at 213; Nichrotherm Electrical Co Ltd v Percy [1956] RPC 272 at 280; Ackroyds (London) Ltd at 104; Torrington Manufacturing Co Ltd v Smith &amp; Sons (England) Ltd [1966] RPC 285. Its use extends beyond that context: see Interfirm Comparison (Australia) at 117; and Gurry "Breach of Confidence" in Finn (ed) Essays in Equity , 118 (1985); Smith Kline &amp; French , at 96.
Case: Torrington Manufacturing Co Ltd v Smith &amp; Sons (England) Ltd [1966] RPC 285
Outcome: cited
alternative test the "purpose" test asks: Has confidential information been imparted for what was known, or ought reasonably to have been known, to be only for a particular purpose? If it has, its use must be limited to that purpose. This approach has commonly been used in cases in which confidential industrial information has been disclosed (usually under contract) to a manufacturer either by way of licence for a period or so as to manufacture a product for the confider: see Saltman Engineering , at 213; Nichrotherm Electrical Co Ltd v Percy [1956] RPC 272 at 280; Ackroyds (London) Ltd at 104; Torrington Manufacturing Co Ltd v Smith &amp; Sons (England) Ltd [1966] RPC 285. Its use extends beyond that context: see Interfirm Comparison (Australia) at 117; and Gurry "Breach of Confidence" in Finn (ed) Essays in Equity , 118 (1985); Smith Kline &amp; French , at 96.
Case: Seager v Copydex Ltd (No 2) [1969] 2 All ER 718
Outcome: cited
could well be said, as Mr Wait did, "that there didn't appear to be any great intellectual property associated with [Hamilton's] formulation", or, to adapt Lord Denning's formulation in Seager v Copydex Ltd (No 2) [1969] 2 All ER 718 at 719, it bordered on there being "nothing very special about it". Nonetheless, tested by the indicia of confidentiality to which I earlier referred, the ingredient ratios were not, on the evidence, in the public domain in 1996, or, for that matter, in 2006; they were valuable to Hamilton when used by it and, in 2006, they were valuable to AMC who was by then a prospective competitor; the formula resulted from Hamilton's research and experimentation and, as the evidence here indicated, for another person to acquire the same information would require it to go through a like process of experimentation; and the urea cream product was not, on the evidence, easily reverse engineered. While it was suggested to Mr Blake that it could be reverse engineered in a short time a suggestion with which he did not agree AMC did not adduce positive evidence to that effect. It had the opportunity to do so. Mr Wait was its witness.
Case: Amway Corporation v Eurway International Ltd [1974] RPC 82
Outcome: cited
the Distribution Agreement clearly contemplated that there could be confidential information associated with the Products, what is surprising is that Hamilton appears not to have taken positive steps to preserve the secrecy of the formula in the hands of third parties to whom it was supplied. This said, it cannot properly be asserted that Hamilton so conducted itself in relation to AMC as reasonably to create the impression that it was making a fairly open invitation to AMC to make use of it: Amway Corporation v Eurway International Ltd [1974] RPC 82 at 87. This brings me to the second matter. I am satisfied the production formula was confidential information for equitable and contractual purposes, but was it imparted in circumstances importing a duty of confidence? Again I think so.
Case: Seager v Copydex Ltd (No 1) [1967] RPC 349
Outcome: cited
grant of this form of relief in breach of confidence cases is in the end a matter for the Court, notwithstanding a party's election for an account: see e.g. Seager v Copydex Ltd (No 1) [1967] RPC 349 ; see also Conveyor Co of Australia Pty Ltd v Cameron Bros Engineering Co Ltd [1973] 2 NZLR 38 at 44. An apparent reason for this is that, given the variable character of confidential information, its misuse even in a profit making activity may not realistically be able to be said to result in any profit being attributable to it, the misuse merely effecting what was in effect a saving of time and trouble: see Dean [8-320].
Case: Conveyor Co of Australia Pty Ltd v Cameron Bros Engineering Co Ltd [1973] 2 NZLR 38
Outcome: cited
grant of this form of relief in breach of confidence cases is in the end a matter for the Court, notwithstanding a party's election for an account: see e.g. Seager v Copydex Ltd (No 1) [1967] RPC 349 ; see also Conveyor Co of Australia Pty Ltd v Cameron Bros Engineering Co Ltd [1973] 2 NZLR 38 at 44. An apparent reason for this is that, given the variable character of confidential information, its misuse even in a profit making activity may not realistically be able to be said to result in any profit being attributable to it, the misuse merely effecting what was in effect a saving of time and trouble: see Dean [8-320].
Case: Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109
Outcome: cited
Mr Wait may over time have been able to devise an acceptable production formula for Dr Keung, I do not consider the present to be a case in which it properly should be said that the only appropriate remedy in the circumstances would be damages for the saving of "time and trouble": Seager (No 1) , at 368. Dr Keung, in my view, designedly was trying to replicate a product for which he had previously established product goodwill. An account is in the circumstances an appropriate form of relief: AMC should not be "permitted to gain from [its] wrongdoing": Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 at 262. I am satisfied that the period for which the account should be taken ought commence when AMC began to sell products manufactured in breach of confidence. It should end when sales of those products ceased in 2008 when AMC adopted the alternative formulation incorporating lactic acid. By that point the advantage gained for its misappropriation of the formula was practically spent. It had been overtaken by Sphere's independent endeavours to produce an acceptable product. Hamilton should not be given the benefit of those endeavours. If there was some residue of advantage remaining with AMC from the misuse of the formula, it is inappropriate to attempt to make some apportionment of profits in recognition of it. To attempt that would inevitably be burdensome and unrewarding. Significantly, Hamilton has, because of the product change, abandoned its claim for a permanent injunction.
Case: Nokia Corporation v Liu [2009] FCAFC 138
Outcome: cited
the accounting remedy is not without its known difficulties (see Dean [8.325]), I do not have material before me nor have I had considered submissions which would suggest that such might emerge here. That in any event is a matter for Hamilton. It can have obvious costs implications: cf Nokia Corporation v Liu [2009] FCAFC 138. If an account is to be taken I will direct it be before the District Registrar of the Court and I will give liberty to apply for directions in relation to the taking of the account.
Case: Prime Creative Media Pty Ltd v Vranjkovic [2009] FCA 1030
Outcome: cited
also seeks an order that AMC deliver up the originals and copies of two of the three documents it "holds". No such order is sought against Sphere in respect of the two documents it received. AMC converted the hard copy versions of the documents into electronic form for sending to Sphere. I have not been addressed on the "delivery up" or "destruction" of the electronic versions. I will invite further submissions on this matter: see also Prime Creative Media Pty Ltd v Vranjkovic [2009] FCA 1030 at [17] .
Case: Hospitality Group Pty Ltd v Australian Rugby Union Ltd [2001] FCA 1040 ; (2001) 110 FCR 157
Outcome: cited
as concerns the claim for breaches of cl 28 of the Distribution Agreement, I am satisfied such breaches have been established. No claims for damages have been advanced. In light of the considered dictum of the Full Court of this Court in Hospitality Group Pty Ltd v Australian Rugby Union Ltd [2001] FCA 1040 ; (2001) 110 FCR 157 at [155] - [159] , I ought not entertain consideration of whether the contractual breach of confidence could itself be remedied by an account of profits: cf Attorney-General v Blake [2000] UKHL 45 ; [2001] 1 AC 268 ; and see generally Cheshire and Fifoot , [23.2] and esp fn 5 (9 th Aust ed).
Case: Attorney-General v Blake [2000] UKHL 45 ; [2001] 1 AC 268
Outcome: cited
as concerns the claim for breaches of cl 28 of the Distribution Agreement, I am satisfied such breaches have been established. No claims for damages have been advanced. In light of the considered dictum of the Full Court of this Court in Hospitality Group Pty Ltd v Australian Rugby Union Ltd [2001] FCA 1040 ; (2001) 110 FCR 157 at [155] - [159] , I ought not entertain consideration of whether the contractual breach of confidence could itself be remedied by an account of profits: cf Attorney-General v Blake [2000] UKHL 45 ; [2001] 1 AC 268 ; and see generally Cheshire and Fifoot , [23.2] and esp fn 5 (9 th Aust ed).
Case: Coulthard v South Australia [1995] SASC 4927 ; (1995) 63 SASR 531
Outcome: cited
to the claims against Dr Keung, it is asserted in the alternative that he owed a duty of confidence directly to Hamilton in virtue of the disclosure actually being made to him and breached that duty by the disclosure he made, or that he knowingly participated in AMC's breach of confidence in that he directed or procured AMC's breach and was liable therefore. I am prepared, for present purposes, to assume that Dr Keung owed a duty of confidence directly to Hamilton. He was the actual recipient of information which he had reason to know was to be kept confidential, albeit he received it for AMC which in turn owed a duty of confidence directly to Hamilton. If, for example, he used such information for his own private purposes which resulted in a gain for him or a loss to Hamilton, he would have been liable therefore at the suit of Hamilton: see Saltman Engineering Co Ltd v Campbell Engineering Co Ltd , at 213; and without the need for any circularity of action by joining AMC as a party. I need not consider AMC's liability in such a case for present purposes: cf Coulthard v South Australia [1995] SASC 4927 ; (1995) 63 SASR 531 at 535. Equally, I am prepared to assume that he would be liable to Hamilton on an accessorial liability basis for his intentional procurement of AMC's breach of confidence to Hamilton. In this I recognise that there is a significant body of discordant case law across the common law world on the question of the liability of directors who are participants in the wrongs of their company, whether that wrong be a breach of contract, a tort, or an equitable wrong: see the helpful discussion of this in relation to tortious liability in Anderson, "The theory of the corporation and its relevance to directors' tortious liability to creditors" (2004) 16 Aust Jo Corp Law 73; on the small company problem for directors, see Finn, "Opening Remarks" (1999) 27 Fed L Rev 171 at 177-180; see the discussion in Root Quality Pty Ltd v Root Control Technologies Pty Ltd [2000] FCA 980 ; (2000) 177 ALR 231 at [113] - [147] ; and see Mortimore QC Company Directors Ch 27 (2009 OUP).