English court refuses to confirm software's pedigree

Unlike most intellectual property rights, copyright does not have a statutory-based right of action in cases where there are unjustified threats of infringement action. For such copyright cases the court has to look to general rules of procedure, and a discretionary ability to grant declarations.

The question for the court was, firstly, whether this discretionary right had been triggered.

According to the court papers, Focus had been careful not to accuse Point of copyright infringement, often saying that it was concerned that there may have been infringement but that it could not yet say whether there had been actual infringement.

According to Judge Kirkham, the October letter was sufficiently implicit in its accusation as to trigger the discretion.

"The letter went further than merely expressing Focus' concerns, as they allege," she found. "Of itself, in my judgement the letter does assert, by implication, that Point had copied and it was, at that time, sufficient assertion of right to trigger the exercise of discretion to grant declaratory relief."

But the Judge then found that Point had not sufficiently established that it had not copied the Focus software in developing the Acuo products.

She explained:

"I cannot be confident that Point's approach has been sufficiently transparent and accurate to enable me to conclude, on the basis of largely untested evidence, that Point are entitled to the declaration they seek. Focus have succeeded in casting doubt on Point's claim to have created their Acuo software by independent design to the extent that Point have not discharged the burden of persuading me, on balance of probabilities, that they did achieve the design independently."

She therefore refused to grant the declaration.

In her opinion, neither party had pursued the alternative solutions with urgency. In addition, it was Point who pulled out of the attempt to use an independent third party.

"In my judgement the refusal by Point to continue with the independent expert scrutiny process is a factor which weighs against them," she wrote.

Judge Kirkham was also concerned that to grant the declaration would then prevent Focus from bringing an infringement claim in the future.

"It would be unjust to do so in circumstances where the court had not examined the evidence which a court would normally expect to see to be able to determine, on all available evidence, whether or not there had been infringement," she concluded.

See also: The ruling

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