Confidentiality issues – bed bugs bite back

If you have travelled overseas, no doubt once or twice bed bugs have crossed your mind. This case¹ not only highlights the unsavoury and difficult world of dealing with bed bugs, but provides a useful reminder of what you would need to establish for equity to restrain another person from disclosing information you claim to be confidential. That is, you need to show:

1. the information can be specifically identified and is of a confidential nature,
2. the information is disclosed in a situation importing confidentiality obligations, and
3. there has been actual or threatened unauthorised misuse or disclosure of the information.

Bed bug protection

Abrahams, a property manager, invented a bed bug glue cup barrier device and talked to Doggett, an Australian expert on bed bugs about some general ideas around bed bug protection. Sensibly, Abrahams filed a patent application for his device, and subsequently won The New Inventors episode on which he appeared.

Abrahams and an acquaintance Biggs talked about entering into some sort of business arrangement to commercialise the device. In those discussions, Abrahams mentioned that he had spoken to Doggett, and shared with Biggs some of the information Doggett had disclosed to Abrahams around Teflon and bed bugs. No arrangement was formalised.

Biggs then talked to Doggett without Abrahams. She also conducted her own experiments and launched a different device using Teflon, making claims on Today Tonight and the website about the superiority of her device.

What happened at court?

Much of the judgment is devoted to seeking to establish what information was disclosed by Abrahams to Biggs and when, because although many emails were put evidence, the parties had not kept contemporaneous records of how and when the devices were invented, and what information had been discussed.

The court found that Biggs and her company had engaged in misleading conduct and made false representations about bed bug devices. Because Abrahams’ company was not a party to the litigation, Abrahams was not able to recover any damages that his company may have suffered as a result of that behaviour.

Abrahams was unsuccessful in his claims that Biggs had misappropriated and misused his confidential information. This was because:

1. Doggett was free to disclose the information about bed bugs and Teflon to anyone. It was not confidential. Also, Abrahams had not disclosed specific information to Biggs, only general information about bed bugs and Teflon, and
2. it was not clear from the evidence that the information had been disclosed in a situation where Biggs was under confidentiality obligations to Abrahams not to disclose or use that information.

What should you do?

While this case does not cover new ground, it is a good reminder that if you or your company come up with a new invention that you think is commercial, you should:

1. record as much of your invention as possible in a lab book, or at least in some dated written record,
2. talk to a patent attorney about what can be protected, and a trusted business mentor about business plans, and
3. not discuss the idea, unless you can clearly establish by dated documents that the idea has been disclosed confidentially, and only for a particular purpose.

This article was written by Amalia Stone, Senior Associate, Sydney.

Endnotes

1. Abrahams v Biggs [2011] FCA 1475 (23 December 2011)

More information

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