Secret Symphony theft? You prove it! No, you disprove it!
BAILII today carries this morning's pronouncement of the Court of Appeal for England and Wales (Lords Justices Buxton, Rix and Jacob) in EPI Environmental Technologies Inc and another v Symphony Plastic Technologies plc and another  EWCA Civ 3, an appeal from the judgment of Peter Smith J.
EPI provided Symphony with additives for use in making various thin film plastic products, the most important of which it somewhat unattractively called DCP509.Under its contract with EPI, Symphony was prohibited from analysing the additives. Suspecting foul play, EPI subsequently sued Symphony for breach of contract and breach of confidence. Peter Smith J was unimpressed with the allegations, holding that Symphony had neither analysed EPI's additives nor made any unlawful use of them.
The Court of Appeal then heard EPI's appeal (in secret) as to whether the judge’s findings could be displaced. According to EPI, using copyright law as an analogy, if EPI could show that Symphony's way of making the additives was similar to its own, the burden of showing that Symphony had not breached contract and confidence then shifted to Symphony.
The Court of Appeal rejected this line of argument. In its view the reasoning employed in copyright law illustrated not so much a rule of law as a rational weighing of evidence: if the degree of similarity between the original work adn the alleged infringement was unlikely to have come about by coincidence, the defendant had to explain it away. In this case, however, a comparison of two ways of making additives did not raise even a remote inference of copying one from the other. Since EPI's additive was still secret, Symphony could not have copied it, and there wasn't any apparent exact copying either. The components of both parties' processes were functionally the same, but that similarity was not enough to raise an inference of copying. Finally, there was ample evidence on which the judge could have concluded that there was no copying.
The IPKat thinks the Court of Appeal is right in strict law: the copyright precedents are part of copyright law and were evolved to address issues relating specifically to copying, while breach of confidence is a far more amorphous body of law, one in which copying usually plays only a minor part. However, where the particulars of the alleged breach of confidence indicate that there has been direct step-by-step copying of an industrial process, he wonders whether the Court of Appeal would have reversed the decision of a Chancery judge who considered that the close copying was sufficient to raise a rebuttable presumption of copying in the absence of a plausible explanation. Merpel wonders whether, in an ideal world, the burden of proof couldn't be given to the trial judge to play around with in the course of his pre-trial case management ...
More on plastic additives here and here