Day 083 - 06 Feb 95 - Page 16
1 document inspection of it without the need to obtain the
2 consent of anyone else. Provided that the right is
3 presently enforceable, the fact that for physical reasons
4 it may not be possible for the person entitled to it to
5 obtain immediate inspection would not prevent the document
6 from being within his power; but in the absence of a
7 presently enforceable right there is, in my view, nothing
8 in Order 24 to compel a party to a cause or matter to take
9 steps that will enable him to acquire one in the future."
10
11 That dictum, as did the dictum of Lord Justice Shaw in the
12 Court of Appeal, gives rise, we would submit, to the same
13 question: In what circumstances, if such a right exists,
14 may it be said to be presently enforceable and for what
15 purposes?
16
17 My Lord, that that may be a correct submission is, we would
18 submit, demonstrated by the next case at tab 4 which is
19 Unilever Plc v. Gillette UK Limited reported in 1988
20 reports of patents cases at page 416. Your Lordship will
21 see from the headnote that the defendant company was the
22 licensee of an associated company in the United States;
23 that under the terms of the licence (which was a contract)
24 they were entitled to the associated company's technical
25 information, documents and processors. The Plaintiffs'
26 submission was that that meant that the Defendants in the
27 English action had the power to disclose the documents
28 because they had the right to inspect them under the
29 licence agreement.
30
31 My Lord, that submission by the Plaintiffs in that case was
32 rejected by Mr. Justice Whitford in the Patents Court. My
33 Lord, can I start at page 418, just below line 25, the
34 learned Judge says this:
35
36 "Be that as it may, I turn to the agreement, which was
37 concluded as long ago as August 1974. A very general
38 provision was made with regard to facilities that were
39 going to be granted to the defendants by Gillette Boston",
40 my Lord, that was the associated company in America, " in
41 the recital (D): 'Licensor has agreed to make available to
42 Licensee'," my Lord, that was the English Defendants,
43 "'such technical information and know-how to permit
44 Licensee to manufacture and sell The Products', also rights
45 in relation to trade marks and patents. The definition of
46 'The Products' covers the entire range of the field of
47 interests so far as the Gillette companies are concerned,
48 including in particular products of the type with which the
49 present patent is concerned, namely, antipersperants.
50
51 What Mr. Carr has urged on behalf of the plaintiffs is
52 that, if one considers the terms of paragraph 2(a) of the
53 agreement, it is quite plain that the defendants have an
54 absolute right to information relating to the process of
55 manufacture of all relevant products, including the product
56 the subject of the present dispute, and it must be a
57 necessary conclusion, that right existing, that they have a
58 right to call for any documents relating to the relevant
59 process, and accordingly they should make further
60 discovery."
