Title: The law of confidence has been unable to supplement copyright and patent
protection especially in the early stages of a product or service when there is
nothing tangible or substantial enough for copyright law or patent to protect.
The above statement suggests that it is not possible to view the law of confidence as a catch all category of intellectual property protection. In this piece, this possible role for confidence will be explored in full and an explanation as to why it either does or does not fulfil this type of role will be given. Within the course of this investigation, the accurate function for the law of confidence will also be provided. Part A will therefore begin by presenting the key features that define the law of confidence and identify those that are relevant to the current topic, which is the exploration of the law of confidence as a reputedly incapable catch all method for subject matter that is too insubstantial for the purposes of patenting and too intangible for the application of copyright law.
Part two will then compare patenting to the requirement of necessary quality under the law of confidence and, through the examination of case law, establish instances where confidentiality is and is not an appropriate catch all facility for non-patentable inventions. Part three will facilitate the same purpose for copyright and reference will be made to the potential outcome of differing conclusions for each of the types of intellectual property of patents and copyright.
Upon the conclusions reached in Part two, it will be established whether the law of confidence has been unable to supplement copyright and patent protection in the early stages of a product or service when there is nothing tangible or substantial enough for copyright law or patent to protect
Part One – the requirements of confidentiality – sole relevance of necessary quality
The law of confidence is the protection of secrets that as contract matter, is governed by the common law and, unlike patent and copyright protection there are no applicable statute or international treaty that governs this corner of intellectual property. The requirements of the law of confidentiality were identified in the case of Coco v A.N. Clark (Eng) Ltd where Megarry J identified three key requirements for there to be protection under the law of confidence, namely, necessary quality, the requirement of an obligation of confidence and the occurrence of unauthorised use of the information. The first requirement of necessary quality relates entirely to this topic as it wholly pertains to the issues tangibility and substantiality of the subject matter. The second and third points do not possess such attributes and for this reason, they will not be explored in depth in this paper except in so far as, should an invention or work of an early stage require protection, these latter two requirements will have to be met in their own right.
The necessary quality of confidence is essentially the requirement that the subject matter must not be in the public domain. Lord Greene MR stated in Saltman Engineering Co v Campbell Engineering Co, there must be:
“necessary quality of confidence about it, namely, it must no