Bestnet wins right to appeal

IIC response to VF smear campaign Position and response to first verdict Réponse en français Link to original verdict

In December 2006 Vestergaard Frandsen (VF) commenced proceedings against Bestnet and others claiming that they had misused VF’s confidential information to create Bestnet’s product Netprotect. One of the principal objectives of that litigation was to obtain an injunction against Netprotect’s then current product, which was submitted for approval to WHOPES in 2006.

Following the trial, the Judge found that Bestnet had misused VF’s confidential information. But he then went on to say that the misuse of VF’s trade secrets he found was merely the starting point for a substantial program of further development. This program resulted in product formulations that were fundamentally different from this starting point. Accordingly, the Judge did not restrain Bestnet from selling or manufacturing the Netprotect product, which hd by the time of trial gone through WHOPES II. The Judge nonetheless made an Order for damages to be assessed and for the costs of the case to be paid by Bestnet, and to be assessed by the Court if not agreed. Neither the damages nor the costs have yet been assessed.

On 9 February 2010 the Court of Appeal gave permission to Bestnet to appeal against the finding of misuse and the Order for damages and costs awarded against them and we are looking forward to have its case seen again.

VF double standard on central argument

A principal issue in the case was whether the polymer composition of the net is a major factor in the migration behavior of the insecticide incorporated within it. Ole Skovmand, who has developed formulations for both VF and Bestnet, gave testimony that the polymer mix (or the ratio between different polyethylene grades) is in fact central to the release. VF, on the other side, claimed it was only a minor feature of a number of factors. The Judge found that it had not been shown to be an important factor.

It came as a surprise when in February 2010 a patent application by VF was published that had been filed all the way back in August 2008 - not long before the case brought by VF against Bestnet went to trial. This set out that the polymer mix does in fact have a central effect on insecticide migration. This is in direct contradiction with their testimony.

We observe that during the course of a court case in the UK a party has a continuing obligation to disclose relevant documents including those which support another party’s case. We also hold the position that had this information been disclosed during the course of the trial the claim of VF against Bestnet would have been rejected.

Bestnet is therefore making an application to the Court of Appeal for permission to introduce additional evidence (the patent specification) when the matter comes before the Court of Appeal at the end of November.

(updated 07/05/2010)