While Google`s privacy rules contain a savings clause – confirmation of Google`s rules was not intended to prohibit protected activities – the plaintiffs argued that the clauses made no sense and would not be enforced in the application of their confidentiality agreements. The judge added that if he was wrong in this analysis, it was another clearly anti-competitive agreement. Roth J said: “If Article 7 were applicable, an international group like Bombardier would be… excluded from one of the world`s leading MFDs, while other major suppliers such as Canon could participate. As a result, he found that the provision had the potential effect of a significant restriction of competition. In addition, Roth J. found that this conclusion was so clear that there was no basis for concluding another conclusion at the hearing. The applicant holds a patent that is essential to a technical standard (Essential Patent standard or MS) and is subject to what is known as a “FRAND company”, i.e. the obligation to make MS accessible to users on fair, proportionate and non-discriminatory (FRAND) terms. The applicant entered into negotiations for a FRAND licence agreement with the defendant. In June 2017, the parties signed a Confidentiality Agreement (NDA). [96] A few days later, the applicant also joined an NOA with a third party, the intervener. Shortly after the NDA was signed, the intervener [97] argued that several clauses of the agreement were in dishy. [98] Mr.
Jones alleged that Ricoh had violated both Clauses 2 and the Confidentiality Agreement by responding to both the 2003 ITT and the 2007 ITT. Jones said Ricoh had a considerable amount of confidential information that would have helped develop the offers. With respect to the 2003 ITT, Ricoh did not dispute (for summary reasons) that the violation of Clauses 2 and 3 could not be dismissed, but argued that the alleged harm was in any event unrecoverable. The judge considered a considerable amount of legislation on the point advanced by Ricoh and ultimately concluded that the damages sought would have been for the damage allegedly caused by the decision to use confidential information in the offer, and thus to be recovered. With respect to the 2007 ITT, the judge found that this was not a case in which a profit account was appropriate, but that Mr. Jones might be able to recover on the basis of “Wrotham Park”. Mr. Jones argued that the agreement was excluded because it fell within the category exemption for vertical restrictions (Commission Regulation 2790/1999/EC). Roth J disputed and found that the purchases of the MFDs were actually made by Ricoh CMP customers.
As a result, CMP and Ricoh did not work at another level of the distribution chain: CMP did not act either as a Ricoh distributor or as a reseller. “It seems clear to me that [the agreement] has a very broad and unlimited scope of uncertain and broad scope and applies to the operations of Ricoh and its related companies that take place not only plausibly, but very likely,” Justice Roth said. “There are many rules that are clearly covered by this prohibition and that may not include the use of “confidential information” or CMP`s customer connection. In Duchy Farm Kennels Limited v. Graham William Steels [2020] EWHC 1208 (QB), the High Court considered whether a confidentiality clause in a COT3 was a condition of the agreement and whether an infringement could allow the employer to no longer pay additional compensation.