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"It is difficult to avoid the conclusion that the outcome of these proceedings is unsatisfactory; and that the outcome would have been equally unsatisfactory had the decision gone the other way," said Lord Justice Chadwick, one of the three judges, who gave a unanimous decision. "But that is the effect of the way in which both parties chose to conduct the proceedings. They chose to deny the judge the assistance of the expert's report which Master Bragge had directed.

"They chose to put the judge in the position where the only question which she could decide was whether Point had established on the balance of probabilities, by the evidence which it adduced, that it had developed the Acuo software without copying," said Chadwick. "Point accepted that burden."

The course was conducted using the testimony of the managing director and chief technical architect, a Mr Green and a Mr Blatchford, as the main evidence relating to the nature of Point's software. It emerged that a significant amount of development had been carried out in India, but none of those developers was made available by Point to give evidence.

The original trial judge, Judge Kirkham, said that she developed doubts about the credibility of Green and Blatchford. "I am not confident that Mr Green and Mr Blatchford have presented a full and accurate picture," she said in her ruling.

The Appeals Court found that Kirkham correctly characterised the case when she said that she was "not trying a case as to whether or not there has been copying. [I have to decide] whether Point have demonstrated, on balance of probabilities, independent design."

"There were grounds upon which she could take the view that Mr Green and Mr Blatchford were unreliable witnesses," said Chadwick in his Appeals Court ruling. "It follows that I would hold that the appellant has not shown that the judge was wrong in finding that Point failed to establish on the balance of probabilities that it did not copy Focus' source code in creating the Acuo range of products."

The appeal was dismissed.

Copyright © 2007, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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