Camilleri v Steel Foundations Ltd [2002] QSC 397

SUPREME COURT OF QUEENSLAND CITATION: Camilleri v Steel Foundations Limited [2002] QSC 397 PARTIES: PAUL ANTHONY CAMILLERI (plaintiff/respondent) v STEEL FOUNDATIONS LIMITED (ACN 064 933 599) (defendant/applicant) FILE NO/S: 813 of 2002 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 4 December 2002 DELIVERED AT: Brisbane HEARING DATE: 26 September 2002 JUDGE: Atkinson J ORDER: Summary judgment be granted in respect of the Slabmaster patent CATCHWORDS: PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – SUMMARY JUDGMENT – where defendant company applied for summary judgment – whether plaintiff had no real prospect of succeeding INTELLECTUAL PROPERTY – PATENTS – PATENT APPLICATIONS – WHO MAY APPLY – OTHER MATTERS – where defendant company obtained patent to invention – where plaintiff inventor sought declaration under s34 of the Patents Act 1990 that he was an eligible person – where correspondence addressed to plaintiff inventor informed him of the defendant company’s application – where plaintiff inventor asserted the defendant company’s right to the patent to company staff and third parties – whether plaintiff inventor had a real prospect of showing he was an eligible person Patents Act 1990 (Cth), s 15, s 34(1)(a), s 34(1)(b) Uniform Civil Procedure Rules 1999 (Qld), r 5, r 293 Bernstrom v National Australia Bank Ltd [2002] QCA 231, followed Davies Shepherd Pty Ltd v Slack [2001] FCA 501, followed -- 1 of 11 -- 2 General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125, not followed George C Warner Laboratories Pty Ltd v Chemspray Pty Ltd (1967) 41 ALJR 75, followed Hepples v Federal Commissioner of Taxation (1990) 94 ALR 81, followed National Australia Bank Limited v Troiani and Anor [2002] QCA 196, followed Preston Erection Pty Ltd v Speedy Gantry Hire Pty Ltd (1998) 43 IPR 74, followed Printing and Numerical Registering Company v Sampson (1873) LR 19 Eq 462, followed Swain v Hillman [2001] 1 All ER 91, followed Three Rivers District Council v Bank of England (No 3) [2001] 2 All ER 513, followed Worthington Pumping Engine Company v Moore (1902) 20 RPC 41 at 49, followed COUNSEL: D G Eliades for the plaintiff/respondent D J Campbell, with J M Horton, for the defendant/applicant SOLICITORS: Raj Lawyers for the plaintiff/respondent Adamson Bernays Kyle & Jones for the defendant/applicant [1] This is an application for summary judgment brought by the defendant pursuant to r 293 of the Uniform Civil Procedure Rules 1999 (UCPR). Rule 293(2) of the UCPR relevantly provides: “(2) If the court is satisfied – (a) the plaintiff has no real prospect of succeeding on all or a part of the plaintiff’s claim; and (b) there is no need for a trial of the claim or the part of the claim; the court may give judgment for the defendant against the plaintiff for all or the part of the plaintiff’s claim and make any other order the court considers appropriate.” [2] If the court is satisfied of the circumstances set out in r 293(2)(a) and (b) then it has a discretion to give judgment for the defendant and make any other order considered appropriate. This rule has been adopted to give effect to the over- riding purpose of the UCPR set out in r 5(1), which is “to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.” The goal of expeditious resolution, at a minimum of expense, is pursued by the ability of the court to give summary judgment in the circumstances set out in the rules. The goal of just resolution of the real issues is protected by the necessity to satisfy the requirements of paragraphs (a) and (b) and the residual discretion the -- 2 of 11 -- 3 court has to refuse summary judgment even when paragraphs (a) and (b) are satisfied. [3] The result of r 5 and r 293(2) of the UCPR is that a party seeking summary judgment is no longer required to satisfy the test set down by Barwick CJ in General Steel Industries Inc. v Commissioner for Railways (NSW), 1 “that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.” [4] The test to be applied is that adopted by Lord Woolf MR in Swain v Hillman2 in relation to r 24(4) of the Civil Procedure Rules (UK) which is in similar terms to r 293; that is, the Court must consider whether there exists a real, as opposed to a fanciful, prospect of success. 3 [5] The present application for summary judgment in favour of the defendant relates to those parts of the statement of claim in which the plaintiff asserts he is entitled to the patent in an invention known as Slabmaster. It is common ground that the plaintiff was the inventor of Slabmaster and that the defendant holds the patent to that invention. The plaintiff seeks a declaration that he is an “eligible person” within the meaning of s 34 of the Patents Act 1990 (Cth) with respect to the Slabmaster invention. In the alternative, he seeks a declaration that the defendant holds, and has held, any interest in the Slabmaster patent on trust for the plaintiff. The defence does not specifically deal with the Slabmaster patent as the claim in respect of it was added after the Defence was filed. The factual background [6] The defendant, Steel Foundations Limited, was incorporated on 5 July 1994. The plaintiff, Paul Camilleri, was at that time engaged as a consultant by the defendant on a fortnightly salary of $2,800. His terms of engagement were not in writing. The defendant was incorporated to develop and commercialise concepts and ideas, many of which were those of the plaintiff, with regard to “screw piling” or “screw piering” which is a method of using steel foundations to support structures built above the ground such as concrete slabs, lighting columns and commercial buildings, in circumstances where there may be soil movement. Mr Camilleri says that so far as he is able to recall, his duties were in relation to the manufacture, distribution, marketing and promotion of one of his inventions known as Ground Anchors. The plaintiff submitted that the dispute about the terms of his engagement is critical to the determination of this case as it was during this time that Mr Camilleri developed the Slabmaster invention. [7] On 21 December 1994, Steel Foundations Limited appointed Warren Brockwell as its financial controller from 9 January 1995. A letter confirming his appointment 1 (1964) 112 CLR 125 at 130. 2 [2001] 1 All ER 91 at 92; See also Three Rivers District Council v Bank of England (No 3) [2001] 2 All ER 513 at 541. 3 See National Australia Bank Limited v Troiani and Anor [2002] QCA 196 at [11] – [12]; Queensland University of Technology v Project Constructions (Aust) P/L (In Liq) and Anor [2002] QCA 224 at [7]; Bernstrom v National Australia Bank Ltd [2002] QCA 231 at [35] – [40]; Foodco Management Pty Ltd and Anor v Go My Travel Pty Ltd [2001] QSC 291 at [8]. -- 3 of 11 -- 4 was signed by Mr Camilleri welcoming Mr Brockwell to the company on behalf of the “Directors, Shareholders and staff”. Mr Brockwell swore an affidavit in these proceedings on behalf of the applicant exhibiting many documents said to evidence the assignment by Mr Camilleri of the intellectual property in the Slabmaster invention. [8] Mr Camilleri commenced the development of the invention known as Slabmaster in March or April 1995. Mr Camilleri says that, upon completion of the Slabmaster invention, he provided written preliminary functional specifications to Mr Brockwell to ascertain whether or not Steel Foundations Limited was interested in the invention and its subsequent promotion, marketing and sale. Steel Foundations Limited indicated that it was interested in producing the Slabmaster system in the course of its business. Mr Camilleri says he consented to Steel Foundations Limited using the Slabmaster system in the course of its business, subject to certain terms and conditions, and thereafter arranged, on behalf of the defendant, to obtain third party certification of the Slabmaster system so that the defendant could determine whether or not the Slabmaster system was a marketable commodity, and if so, whether the defendant was able to or wished to manufacture, promote, market and sell the Slabmaster system in the course of its business. Mr Camilleri also swears that his consent given to Steel Foundations Limited was conditional upon his maintaining an association with Steel Foundations Limited, and was, he says, “revocable at his discretion”. [9] On 7 August 1995, Mr Camilleri commissioned a report from the University of Queensland. That report was provided on 15 September 1995 by Associate Professor David Williams from the Department of Civil Engineering. The report is addressed to Mr Camilleri as chief executive officer of Steel Foundations Limited. It sets out the effect of discussions between Associate Professor Williams and Mr Camilleri on 7 August 1995 as to the purpose of the report. The report states, “your aim is to validate the application of steel foundations, incorporating a slab-on- ground designed as a suspended slab, to reactive clay sites.” [10] Mr Camilleri completed the development of the Slabmaster system in December 1995. Mr Camilleri says that on or about 5 December 1995, a meeting of the Board of Directors of Steel Foundations Limited was held at its offices at Broadbeach. In attendance were George I’Anson, Tony Cordner, Keith Thorn, Mr Brockwell, and Mr Camilleri. During the course of the meeting, it was resolved that Mr Camilleri would be appointed a Director of Steel Foundations Limited and Chief Executive Officer. It was also resolved that he would sign a five year employment contract with the company. [11] On 14 December 1995, Grant Adams and Company, Patent and Trademark attorneys, (the “patent attorneys”) lodged a provisional patent application for the Slabmaster system in the name of Steel Foundations Limited. Paul Camilleri was named in the application as the inventor. On the same date, the patent attorneys sent Mr Camilleri a copy of the provisional patent specifications. The patent application was given the number PN7150. Mr Camilleri swore an affidavit saying he was unable to recall receiving a number of pieces of correspondence from the patent attorneys including this letter. He says that he believes those letters he did -- 4 of 11 -- 5 not receive were dealt with by Mr Brockwell without his knowledge or assistance. Mr Camilleri asserts that he also did not receive a letter from the patent attorneys dated 2 January 1996 and addressed to him at the postal address of Steel Foundations Limited confirming that the Slabmaster patent application had been lodged in the name of Steel Foundations Limited. Mr Camilleri asserts that the application for a patent was lodged without his knowledge or consent. [12] On 23 January 1996, Mr Camilleri was appointed a Director of Steel Foundations Limited. It appears that he had not previously been a director, because of his status as a bankrupt, but he had previously held himself out to be the chief executive officer of Steel Foundations Limited. [13] On 1 February 1996, Mr Camilleri entered into an employment contract with Steel Foundations Limited whereby the company agreed to employ Mr Camilleri as chief executive officer from that date for a period of five years. Mr Camilleri agreed to devote his full time and attention to the business of Steel Foundations Limited and not to engage, directly or indirectly, in any other business or occupation without the written consent of the Board. The employment contract required Mr Camilleri to, inter alia, develop further technological improvements in relation to the manufacture and application of the screw pier concept, and to ensure that the intellectual property of Steel Foundations Limited was properly protected. He was in a position where he was required to act in good faith towards the defendant.4 [14] On 2 September 1996, the patent attorneys wrote to Mr Camilleri at Steel Foundations Limited reminding him that a complete patent application must be filed or the patent application for the Slabmaster would lapse on 14 December 1996. Mr Camilleri again swears that this correspondence did not come to his attention. [15] In October 1996, a document entitled Technical Standard SF-1 for Slabmaster Screw Piers and Concrete Slab System for Housing Edition 8 was prepared for the Slabmaster invention, containing several of the same designs as those used in the Slabmaster patent specifications. Mr Brockwell has sworn that the technical standard was prepared and paid for by Steel Foundations Limited. [16] On 1 November 1996, the patent attorneys wrote to Mr Camilleri at Steel Foundations Limited reminding him that a complete patent application must be filed or the patent application for the Slabmaster would lapse. Mr Camilleri again says that this correspondence did not come to his attention. [17] On 16 December 1996, a patent application was lodged for the Slabmaster. The applicant was Steel Foundations Limited and the inventor identified as Paul Camilleri. The full patent application contains several drawings which appear identical to those in the technical standard. 4 See Worthington Pumping Engine Company v Moore (1902) 20 RPC 41 at 49. -- 5 of 11 -- 6 [18] On 6 January 1997, the patent attorneys wrote to Mr Camilleri at Steel Foundations Limited advising that a patent application for the Slabmaster patent was filed on 16 December 1996 by Steel Foundations Limited. Mr Camilleri again swears that that correspondence did not come to his attention. [19] Mr Camilleri swears that a meeting of the Board of Directors of Steel Foundations Limited was held on 13 March 1997 where it was resolved that he would be dismissed from his position with the company. After argument, it was agreed that his remuneration should be decreased from $150,000 per annum to $120,000 plus five per cent commission and that he would be retained as a consultant rather than as chief executive officer. [20] On 1 July 1998, however, the plaintiff and defendant signed a new employment contract. It was in similar terms to that signed on 1 February 1996, and in particular, reinstated the salary and conditions Mr Camilleri had formerly enjoyed. [21] On 24 July 1998, the patent attorneys wrote to Mr Camilleri at Steel Foundations Limited informing them that the Australian Patents Office had issued a direction to request examination of the Slabmaster patent application. They enclosed a copy of the direction and noted that it was required to be complied with by 22 January 1999. Mr Camilleri swears that this correspondence did not come to his attention. [22] On 1 October 1998, the patent attorneys again wrote to Mr Camilleri at Steel Foundations Limited reminding him of the direction to request examination. On 1 December, the patent attorneys sent an urgent reminder with regard to the same matter. Mr Camilleri asserts that none of that correspondence came to his attention. The letter of 1 December 1998 is annotated by Mr Brockwell to say that examination was required, and signed and dated by him 3 December 1998. The patent was given the number 706192. The fact that it was signed by Mr Brockwell may give some support to Mr Camilleri’s assertion that he was not aware of and therefore did not give his consent to the patent being lodged in the name of Steel Foundations Limited. The court was, however, invited to consider Mr Camilleri’s subsequent behaviour to test whether the plaintiff had any real, as opposed to fanciful, prospect of showing this was true. If there was no real prospect of showing that the patent was obtained by Steel Foundations Limited without the knowledge and consent of Mr Camilleri, then it can safely be inferred that whatever the other terms of his engagement from July 1994, he agreed that the company could and would be the patentee of the invention. [23] On 2 August 1999, Mr Camilleri wrote a memorandum on Steel Foundations Limited letterhead addressed to all sales staff, operations staff and administration staff with regard to the Slabmaster system. Contrary to Mr Camilleri’s assertions in this matter, this memorandum shows clear knowledge of the patent that had issued for the Slabmaster system and that it did not belong to him alone. It provides as follows: “The Slabmaster System described in our SF-1 Technical Standard and Quality Management are now Patented in Australia, Patent Nos. 706192 and 708999 apply respectively. -- 6 of 11 -- 7 Effective immediately, any breach of our design, layout, steel re- inforcement design etc. by any party will be prosecuted by us. We have spent a lot of money and invested a lot of time to get to this stage and we are fully committed in protecting our intellectual property in the market place. Should you become aware of any breach, I will need to be advised immediately and will ask for copies of the followings [sic] . Engineering designs . Specifications . As built records . Names and addressed [sic] of parties involved I expect complete co-operation by all staff members in this regard and ask further that you remain vigilant as to any potential breaches of our patents.” The memorandum is signed by Mr Camilleri personally. [24] That memorandum may be considered equivocal as to Mr Camilleri’s knowledge. Its use of the first person plural pronoun may suggest an interest held by both Mr Camilleri and Steel Foundations Limited. However, on 15 September 1999, a distribution agreement was entered into between Steel Foundations Limited and Steel Foundations Contracting Pty Ltd and the Australian Steel Company (Operations) Pty Ltd. The agreement warrants that Steel Foundations Limited owns all the intellectual property relating to the Slabmaster system and has a right to appoint distributors in respect of the products. The relevant intellectual property is defined in clause 1.1 as the property referred to in Schedule 1A. Schedule 1A lists the Slabmaster patent as being part of the intellectual property which was the subject of the agreement. This distribution agreement was signed by Mr Camilleri on behalf of Steel Foundations Limited. The execution of this document is inconsistent with the plaintiff’s contention that he was unaware of and did not give his consent to the patent being issued to Steel Foundations Limited and that he was the beneficial owner of the intellectual property and associated rights in the Slabmaster invention to the exclusion of the applicant. Its significance is increased by the fact that it is an important commercial document. It clearly shows that Mr Camilleri accepted that the applicant, Steel Foundations Limited, was the legal and beneficial owner of the patent in the Slabmaster system. Not only did he accept that, he asserted that Steel Foundations Limited held all the interest in the Slabmaster patent in a significant commercial contract which he signed. [25] Also inconsistent with his present allegation is a Notice of Termination of a distribution agreement between Steel Foundations Limited and Soil Test Australia Pty Ltd signed and sent by Mr Camilleri on behalf of Steel Foundations Limited on 5 October 1999. This notice says, inter alia, that; “The Slabmaster System is fully patented, (granted Patent no. 706192 applies, copy attached). This makes the Slabmaster System a proprietary system owned by Steel Foundations Limited.” -- 7 of 11 -- 8 The underlining and bold font are in the original. He is clearly asserting that the patent for the Slabmaster is owned by Steel Foundations Limited. [26] Even more damaging to the plaintiff’s assertion that he, rather than Steel Foundations Limited, is the owner of the patent, is an internal memorandum which he sent on 17 January 2000 on Steel Foundation Limited letterhead. It contains an unequivocal assertion of the ownership of Steel Foundations Limited to the exclusion of all others, including himself. In the memorandum, he states, “With the granting of our Patent for Slabmaster, the system in now classified as a Proprietary System owned exclusively by Steel Foundations Limited.” (underlining added) This is inconsistent with the assertion the plaintiff makes in these proceedings that Steel Foundations Limited’s interest was revocable at his discretion. [27] On 20 October 2000, Mr Camilleri wrote to Smorgon ARC signing the letter as Chief Executive Officer of Steel Foundations Limited, and asserting, in no uncertain terms, that the Slabmaster Patent No 706192 was owned by Steel Foundations Limited. In addition, Mr Camilleri signed a patent infringement warning on behalf of Steel Foundations Limited again asserting unequivocally the defendant’s ownership of the Slabmaster patent, its investment in its development, and its intention to protect itself from any infringement of the patent. [28] On 15 June 2001, Mr Camilleri resigned as a director of Steel Foundations Limited. His employment was terminated on 3 July 2001. Eligible Person [29] This application for summary judgment relates only to that part of the statement of claim alleging rights to the Slabmaster patent. Mr Camilleri seeks a declaration that he is an eligible person under s 34 of the Patents Act 1990 (Cth). Section 34(1) provides: “If, in any proceedings in a court relating to a patent (the first patent), the court is satisfied either: (a) that one or more persons are eligible persons in relation to an invention so far as claimed in any claim of the patent (the original claim) but that the patentee is not an eligible person; or (b) that the patentee and another person or persons are eligible persons in relation to an invention so far as claimed in any claim of the first patent (the original claim); the court, in addition to any other order it may make in the proceedings, may, by order, declare that the persons who it is satisfied are eligible persons are eligible persons in relation to that invention so far as so claimed.” -- 8 of 11 -- 9 [30] In summary, there are two situations in which a court can make a declaration that a person is an eligible person within the meaning in the Act. The first, outlined in s 34(1)(a), is where it is shown that the person seeking the declaration is an eligible person, and that the person who holds the patent is not. The second, outlined in s 34(1)(b) is where the person seeking the declaration is an eligible person in addition to the person who holds the patent. Mr Camilleri’s claim is that he alone is an eligible person and that Steel Foundations Limited is not an eligible person. His claim therefore comes within s 34(1)(a). [31] “Eligible person” is defined in schedule 1 to the Patents Act to mean, in relation to an invention, a person to whom a patent for the invention may be granted under s 15 of the Act. Section 15(1) provides: “Subject to this Act, a patent for an invention may only be granted to a person who: (a) is the inventor; or (b) would, on the grant of a patent for the invention, be entitled to have the patent assigned to the person; or (c) derives title to the invention from the inventor or a person mentioned in paragraph (b); or (d) is the legal representative of a deceased person mentioned in paragraph (a), (b) or (c).” [32] Mr Camilleri, as the inventor of the Slabmaster, is prima facie a person to whom a patent may be granted pursuant to s 15(1)(a). He would nevertheless not be a person who would be entitled to be granted the patent if he had assigned the invention and therefore the right to apply for the patent to the defendant prior to the application for the patent. In order to make a declaration in accordance with s 34(1)(a), the court must be satisfied that the patentee is not an eligible person. In this case, the patentee, Steel Foundations Limited, in effect says that it is an eligible person because it was assigned the right to apply for the patent 5 in accordance with the terms of the agreement for services it entered into with Mr Camilleri, whether that agreement was in the form of an employment contract or a consultancy contract. [33] An inventor may assign the future rights to an invention and therefore the right to apply for a patent. Such rights are personal property capable of valid assignment. Far from being contrary to public policy, it is considered to promote inventiveness if an inventor can assign for value the product of his or her intellectual endeavour.6 The inventor’s right to a patent is subject to any assignment before or after making 5 Steel Foundations Limited does not allege that it was assigned the patent; an assignment of a patent must be in writing in accordance with s 14 of the Patents Act. 6 Printing and Numerical Registering Company v Sampson (1873) LR 19 Eq 462 at 464. -- 9 of 11 -- 10 the invention. 7 If it is assigned prior to the application for a patent then it is the assignee who has the right to apply for the patent. [34] A person who derives title to an invention from the inventor because of such prior assignment is an eligible person under s 15(1)(c) who would be entitled to apply for the patent to the exclusion of any other person. This is similar to the legal position of an assignee from the inventor under the predecessor to the Patents Act 1990. Section 34(1)(b) of the Patents Act 1952 provided that an assignee of the actual inventor could make an application for a patent. In Preston Erection Pty Ltd v Speedy Gantry Hire Pty Ltd 8, the Full Court of the Federal Court agreed with the primary judge that s 34(1)(b) contemplates the possibility of an assignment by the actual inventor of the benefit of the invention and, in particular, of the right to apply for a patent in respect of it. In so holding, the court followed the decisions of Gummow J in Hepples v Federal Commissioner of Taxation9, and of the High Court in George C Warner Laboratories Pty Ltd v Chemspray Pty Ltd. 10 [35] If there were had been such an assignment, then the defendant would have what was described by Gummow J in Hepples v Federal Commissioner of Taxation11 as: “presently existing proprietary rights namely the right, to the exclusion of the plaintiff, to apply for and obtain a patent grant.” [36] Although the wording of s 34 of the 1952 Patents Act was changed in s 15 of the 1990 Patents Act, it remains the case under s 15 that a person who derives title to an invention from the inventor 12 , or who would, on the grant of a patent for the invention, be entitled to have the patent assigned to the person 13 may apply for and be granted a patent. [37] Does the defendant fall within the categories of person described by s 15(1) (b) or (c) as an eligible person? The terms of the agreement between Mr Camilleri and Steel Foundations Limited can be inferred from his conduct in unequivocally asserting the respondent’s exclusive right to the patent. His conduct is sufficient evidence of assignment of the right to apply for the patent to the defendant.14 The defendant derived the title to the invention from the plaintiff, and therefore, the proprietary right to apply for and obtain a patent grant, to the exclusion of the plaintiff. 15 The transfer of title to the invention makes the defendant an eligible person under s 15(1)(c) 16 to the exclusion of the plaintiff. [38] Steel Foundations Limited relies on the fact that it was the original patentee and that the right to apply for the patent was assigned prior to the application for registration of the patent. Steel Foundations Limited bases its right to the patent on the fact that 7 Terrell on the Law of Patents (15 th ed) at 3.03. 8 (1998) 43 IPR 74 at 82. 9 (1990) 94 ALR 81 at 99. 10 (1967) 41 ALJR 75. 11 (supra) at 99. 12 Patents Act 1990 s 15(1)(c). 13 Patents Act 1990 s 15(1)(b). 14 See Preston Erection Pty Ltd v Speedy Gantry Hire Pty Ltd (supra) at 82. 15 Hepples v Federal Commission of Taxation (supra) at 99. 16 Davies Shepherd Pty Ltd v Slack [2001] FCA 501 at [13]. -- 10 of 11 -- 11 it applied for and received the patent for the Slabmaster system with the knowledge and consent of Mr Camilleri. Although he denies that allegation, his strenuous adoption of a position inconsistent with that denial during 1999 and 2000 means that his prospect of proving otherwise is fanciful rather than real. [39] The facts as set out above evidence that Mr Camilleri knew that Steel Foundations Limited was applying for and receiving the patent in its own name, and furthermore, that he consented to this course of action. At all material times after 1 February 1996, whenever correspondence was sent to Mr Camilleri at Steel Foundations Limited, Mr Camilleri was chief executive officer and a director of the defendant. The memorandum of 2 August 1999, the distribution agreement of 15 September 1999, the Notice of Termination of 5 October 1999, the memorandum of 17 January 2000, the letter of 20 August 2000, and the Patent Infringement Warning all demonstrate his unequivocal knowledge, and indeed his assertion to employees and third parties, of the exclusive ownership of the Slabmaster patent by Steel Foundations Limited. All of these documents are inconsistent with any assertion that the defendant is not or can not be the holder of all the intellectual property in the Slabmaster patent. The plaintiff does not assert that these documents were not written or signed by him. They make irrelevant his submission that he is the beneficial owner of the patent because he was not an employee of the applicant at the time he invented the Slabmaster system. His actions show that the plaintiff had unequivocally assigned the right to the patent and any rights in the patent to the defendant. One can infer from the course of conduct that this occurred before the patent application was lodged. Beneficial Ownership [40] Mr Camilleri’s alternative submission is that Steel Foundations Limited holds the Slabmaster patent on trust for him. However, the documentary evidence makes this possibility so remote as to be fanciful. Mr Camilleri asserted on several occasions in correspondence to staff of Steel Foundations Limited and to third parties that all the rights to the Slabmaster patent were held by Steel Foundations Limited. He asserted that Steel Foundations Limited owned the intellectual property exclusively. There is, in my opinion, no real prospect of his showing that the patent was in fact held on trust for him. [41] In the circumstances, I find myself in agreement with the submission of the defendant that the plaintiff’s action relating to the Slabmaster patent has no real prospects of success. The defendant is entitled to summary judgment in respect of the Slabmaster patent. [42] I shall hear submissions as to costs and minutes of an order to give effect to the reasons. -- 11 of 11 --