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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Poeton Industries Ltd & Anor v Michael Ikem Horton & Anor [2000] EWCA Civ 180 (26 May 2000)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/180.html
Cite as: [2000] ICR 1208, [2000] EWCA Civ 180
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Case No: 1999/0150
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Friday, 26th May 2000
LORD JUSTICE MORRITT
LORD JUSTICE CHADWICK
and
MR JUSTICE CHARLES
- - - - - - - -
(1)
Poeton Industries Limited |
Plaintiff/ | |
|
||
(1)
Michael Ikem Horton |
Defendant/ |
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - -
Mr Horton appeared in person
Mr Richard Meade (instructed by Charles Russell for the respondents)
Judgment
As Approved by the Court
Crown Copyright ©
LORD JUSTICE MORRITT:
1. The plaintiffs, to whom I shall refer collectively as "Aptec", carry on business as electro-platers. In particular they plate the internal surfaces of the cylinders of internal combustion engines with a layer of nickel silicon carbide in order to improve the resistance of those surfaces to wear and tear from the movement of the pistons. The defendant, Mr Horton, was employed by Aptec as a sales engineer from January 1993 to September 1995. In December 1995 Mr Horton commenced business as an electro-plater in the name of UK Cylinders Ltd.
2. In March 1996 Aptec issued the writ in this action claiming that Mr Horton had wrongfully taken with him on the termination of his employment and was using in the business of UK Cylinders Ltd confidential information belonging to Aptec relating to (a) the electrolyte and (b) the apparatus used by Aptec as well as (c) a list of customers of Aptec. On 8th April 1998 Pumfrey J, after a seven day trial, dismissed the claim of Aptec in relation to the electrolyte and the list of customers. With regard to the apparatus he upheld the claim of Aptec and, after three further hearings relating to the form of order, granted them injunctions to restrain Mr Horton and UK Cylinders Ltd from using it.
3. On 1st February 1999 Pumfrey J granted permission to appeal to Mr Horton and UK Cylinders Ltd. UK Cylinders went into liquidation on 1st June 1999. Accordingly this appeal from the order of Pumfrey J is brought by Mr Horton alone. There is no cross-appeal. Shortly before the appeal was due to be heard the legal aid formerly granted to Mr Horton was withdrawn. He appeared before us in person, assisted by the skeleton argument prepared by counsel who had appeared for him at the trial for the purposes of the appeal, and conducted his own case with clarity and ability. The case for Mr Horton is that (a) the judge was wrong to have upheld the claim of Aptec in relation to the apparatus, (b) even if he was right to have upheld that claim the judge was wrong to have granted Aptec any injunctive relief and (c) even if the judge had been right to grant some injunctive relief the form of the injunctions he granted was objectionable.
4. Electro-plating, as described by the judge,
"is a process in which one metal is deposited on another by electrolytic action on passing a current through a cell. The essential idea is that the object to be coated is held at a negative potential and placed in a solution of positively charged ions of the metal to be deposited (the electrolyte). It thus becomes one electrode, called the cathode, of the plating cell. The positively charged metal ions migrate to the cathode and are deposited upon it. The negatively charged ions in the solution migrate to another, positive, electrode (the anode). If the anode is made of the metal which is being deposited, it will itself dissolve, and the supply of ions for deposition on the cathode is maintained. If the anode is insoluble, the metal ions in the electrolyte will eventually be exhausted, and will have to be replaced."
In the case of nickel plating insoluble anodes are normally required.
5. The nickel silicon carbide plating to which I have referred was a particular part of the business carried out by Aptec. It originated with an enquiry in mid-1989 from a company in Taiwan relating to the coating of cylinders of motor cycle engines with hard chrome on the outide, with which Aptec was familiar, and nickel silicon carbide on the inside of which Aptec had no experience. Aptec made contact with a German company called Blasberg Oberflächtentechnik GmbH ("Blasberg") which marketed a process, called Elsinil, for the electro-plating of nickel silicon carbide coatings. On 8th February 1990 Mr John, a director and the general manager of Aptec, visited the Blasberg works in Germany. Messrs Huschens and Ott explained the Elsinil process to Mr John who made a three page note of the salient features of what he was told. As the judge recorded, though most of the matters related to the electrolyte and are not now relevant:
"On the third page there is a proposal for an inert anode made of lead with 6% tin; a suggestion that the anode needs to enter the cylinder from above; and be "stopped off".....to an extent to be determined by experiment."
He considered that the basic idea of the Aptec apparatus was disclosed by the Blasberg Note and therefore originated with Blasberg.
6. No notes or drawings were disclosed by Aptec by which to trace the application and subsequent development of the process by Aptec from what was acquired from Blasberg. The judge was surprised that there were no laboratory records of any development work or drawings of the apparatus. As he described it
"The central idea is that the cylinder is not plated immersed in a tank
of electrolyte, which is conventional. Instead, the anode is mounted in the
cylinder and electrolyte is circulated from a storage tank so as to pass
through the space between the anode and the tank. At the trial, this was
referred to as out-of-tank processing....
The central feature is the fixture for holding the anode and the cylinder
to be plated....
[i.e.] in having an anode which is fixed at the bottom of the cell. This is
manifestly a significant development, since it permits the cylinder to be more
conveniently mounted."
The judge then described a feature ("X") of the Aptec cell to which, for
reasons which will become apparent, I have described in the Appendix to this
judgment which is and is to remain confidential. He continued
"The Aptec cell embodies a number of other ideas. These are that the
electroplating process should take place out of the tank, so that effectively
only the surface to be coated should be exposed to the electrolyte; that the
electrolyte should circulate upwards through the cell, to which the cylinder to
be plated should be attached by simple adaptor plates, and that the cell should
have a central insoluble anode."
Thus, in summary, the relevant features of the Aptec apparatus at the time Mr
Horton joined Aptec were (i) out of tank plating, (ii) upward circulation of
the electrolyte, (iii) a central insoluble anode, (iv) attachment of the
cylinder by simple adaptor plates and (v) X.
7. As I have indicated Mr Horton was employed as a sales engineer from January
1993 to September 1994 by a company in the Aptec group. During the period of
his employment the employer had only three or four other employees. The set
up, as described by the judge, was that
"Mr John managed [the business] but he did not have an office at the
premises where the plating work was carried out, his office being elsewhere. Mr
Horton shared the office with him. The plating itself was carried on by a
plating technician. There was a production supervisor, Miss Joanne Dunford,
who gave evidence to me, and Mr Horton. Thus at the material time the workforce
appears to have been Mr John, Mr Horton, Miss Dunford and the technician, who
was initially Mr Perry, who also gave evidence. Mr Hutchinson took over from Mr
Perry at a later date The plating work was carried on in a workshop which it is
necessary to describe. It is a large shed, slightly larger in floor area than
the court, one wall of which is occupied by a roller blind, which I was told
was left open in hot weather. To one side of the roller blind is a door marked
`No Admittance'. The plating equipment occupies part of the shed, and is
located behind some screens. The chemicals for use in the process are stored in
wall racks...Mr Horton pretreated the cylinders from time to time. He also
signed for goods inwards and because he had some workshop skills he turned
components on the lathe from time to time, and he also cleaned up cylinders
after they had been coated. In effect, he did everything one would expect in a
small company where everybody who had the ability lent a hand from time to
time. In particular I accept Miss Dunford's and Mr Hutchinson's evidence that
Mr Horton carried out the plating from time to time, but I have no doubt that
his plating activities were only occasional. He was in no sense a regular
operator of the plating process."
8. Mr Horton's contract of employment contained no relevant restriction on
his activities after his employment ceased. But the judge considered that Mr
Horton
"...knew that Aptec wanted their process to be treated as confidential. In
the end, I am not sure that he really disputed this. He accepted that he was
told before trade shows that if some member of the public asked too many
questions the inquirer was to be passed on to Mr John (647 - 648). His
explanation, that the intention was to create an impression of something
particularly special, did not ring true. He accepted that there were screens in
position, and he accepted that he had been reluctant to have Mr Homer in the
plating shop (see page 651-2)."
Later he added
"I have already indicated that I think that Mr Horton himself was aware
that the apparatus was considered to be confidential. Mr Homer visited Aptec
when he was contemplating going into business with Mr Horton. He was told by Mr
Horton not to go into the plating area (transcript page 311-2, and the
corresponding cross-examination of Mr Horton at page 651). Mr Horton's
rationalisation is far from convincing. I am satisfied that the apparatus was
kept confidential."
9. It is not disputed that the plating cell used by Mr Horton after he left
Aptec incorporated all the features of the Aptec cell except X, that is to say
all those described in sub-paragraphs (i) to (iv), but not (v), in paragraph 6
above. The judge considered that Mr Horton had "copied these basic
ideas".
10. Before referring to the judge's conclusions regarding the plating cell
it is necessary to describe their context in the judgment as a whole. The
judge heard evidence from Mr Horton and Mr John. He regarded the former as
"not a truthful witness, and I only accept his evidence when it is
corroborated by other evidence not open to challenge or where it coincides with
what I consider for other reasons to be most likely."
In the case of Mr John the judge considered that he had not told the truth
about the Blasberg Note and the development of the specification of the
electrolyte. The judge also heard evidence from two experts, Professor Gabe,
called by Mr Horton and Dr Hart, who gave evidence on behalf of Aptec. He
described the former as "a careful and helpful witness, with a clear and
authoritative knowledge of his subject". The latter he found to be
"combative...and too inclined to argue his clients' case". In the case of a
difference of opinion between them he preferred the evidence of Professor
Gabe.
11. Having set out the relevant facts (paragraphs 1-33) the judge
considered first the chemistry of the process, that is to say the electrolyte.
In paragraphs 40-52 he dealt with the question "Is the chemistry of the Aptec
process in "the public domain" or otherwise not protectable?" As there is no
cross-appeal this part of the judge's judgment is not of direct relevance but
there are aspects of it which cast light on the his decision regarding the
apparatus. In his consideration of the law he referred to Coco v A.N.Clark
(Engineers) Ltd [1969] RPC 41 for the three elements normally required if,
apart from contract, a case of breach of confidence is to succeed, namely that
the information must be of a confidential nature, communicated in circumstances
importing an obligation of confidence and used in an unauthorised manner to the
detriment of the person communicating it. He quoted extensively from the
judgment of Cross J in Printers & Finishers v Holloway [1965] RPC
239 and noted that (1) information the future use of which will not be
restrained is information not readily separable in the mind of the employee
from other information which he is free to use and (2) the actual or threatened
misuse of information which has been deliberately memorised for the purpose of
its being carried away and used elsewhere will be restrained.
12. The judge considered that the composition of the electrolyte was not
protectible because Aptec obtained the information from Blasberg and there was
no evidence to show that the communication by Blasberg to Aptec was in
confidence or that Blasberg did not regard themselves as free to disclose a
similar electrolyte to any other customer of theirs. But the judge went on to
consider the protectibility of the electrolyte more generally.
13. In that connection he concluded that the chemistry of the Aptec process
was not in the public domain but was the result of some degree of application
of the human brain to materials in the public domain and so of the kind
referred to by Megarry J in Coco v A.N.Clark (Engineers) Ltd [1969] RPC
41. The judge then quoted the material passages from this court's decision in
Faccenda Chicken v Fowler [1987] Ch.117, and continued
"In the result, I must apply the criteria set out by Cross J in Printers
& Finishers v Holloway and the Court of Appeal in the Faccenda
case to determine whether the information relating to the chemical composition
of the electrolyte in the present case is in principle capable of protection
after the end of employment. Had it been otherwise protectable at Aptec's suit,
I have come to the conclusion that it consists of no more than the application
of obvious principles to the requirements of this particular process, viz. that
the process should use an insoluble anode and should plate as quickly as
possible, and that it would not have been protectable as a trade secret. I have
carefully considered the evidence which was given by Professor Gabe in
cross-examination at pages 829-833. He said it would take an ordinarily skilled
electroplater a period of 6 months to two years to arrive at the process as
a whole (that is, including the apparatus) starting from the prior art.
Although this is not merely the time which would be taken mechanically to
implement a simple idea, but includes the investigation of a problem to which
the solution was not immediately obvious, I am not, in the end, persuaded that
the chemical formula in this case is not within the second category of
information."
14. Thus the judge's reasoning in the case of the chemistry of the
electrolyte was to consider whether the information said to be confidential was
a matter of common knowledge and so in the public domain; if not whether it
came within the category of trade secret and if so whether it came within the
second or third category of trade secret as formulated by Goulding J and
approved in the Court of Appeal in Faccenda Chicken v Fowler [1987]
Ch.117.
15. The judge's consideration of the plating cell was, by contrast, short.
Having described Aptec's plating cell and Mr Horton's plating cell both in
words and by reference to photographs he concluded that Mr Horton had copied
"the basic ideas [of Aptec's cell] and unless these ideas are not capable
of protection has misused confidential information."
His conclusion on that issue was
"As in the case of the composition of the electrolyte, the defendants spent
a considerable time in suggesting that the apparatus was in the public domain.
In this they failed. There was, again, no disclosure of the apparatus. There
were a number of publications of similar ideas, but no suggestion beyond the
bare idea of out-of-tank plating. As Mr Meade submits, the documents relating
to out-of-tank plating are poor disclosures: see in particular, Surface World,
Emde and Metzger & Ott. There was one striking publication, referred to as
Hammond, which disclosed a rather similar principle to that used in the Aptec
plant applied to the hard chrome plating of the barrels of naval guns. This was
identified by Professor Gabe with hindsight, and I believe that it would
require real insight to apply the principles disclosed in that article to the
internal plating of motor cycle cylinders, let alone in apparatus so similar to
that used by Aptec. The evidence that Aptec kept the apparatus confidential was
really overwhelming: see Perry's witness statement and transcript page 283, and
Miss Dunford at page 268. I have already indicated that I think that Mr Horton
himself was aware that the apparatus was considered to be confidential. Mr
Homer visited Aptec when he was contemplating going into business with Mr
Horton. He was told by Mr Horton not to go into the plating area (transcript
page 311-2, and the corresponding cross-examination of Mr Horton at page 651).
Mr Horton's rationalisation is far from convincing. I am satisfied that the
apparatus was kept confidential.
Accordingly, in my judgment Mr Horton has misused confidential information
in relation to the design and configuration of the plating cell."
16. It is apparent from these passages that in the case of the plating
cell, as with the electrolyte, the judge considered whether the design and
configuration was in the public domain. But, unlike the case of the
electolyte, he did not go on to consider if such design and configuration was,
in whole or in part, a trade secret and, if so, whether it came within class
two or class three of the Faccenda Chicken classification. The judge's
decision cannot be supported unless the configuration and design came within
class 3. For my part I do not think that it did.
17. The two classes were described by in Goulding J Faccenda Chicken v
Fowler [1984] ICR 589, 599-600 as
"information which the servant must treat as confidential (either because
he is expressly told that it is confidential or because from its character it
obviously is so) but which once learned necessarily remains in the servant's
head and becomes part of his own skill and knowledge applied in the course of
his master's business." (Class 2)
"specific trade secrets so confidential that, even though they may
necessarily have been learned by heart and even though the servant may have
left the service, they cannot lawfully be used for anyone's benefit but the
master's." (Class 3)
The classification was considered and, subject to one modification,
approved by the Court of Appeal in Faccenda Chicken v Fowler [1987]
Ch.117, 136 where Neill LJ giving the judgment of the court said
"(4) The implied term which imposes an obligation on the employee as to his
conduct after the determination of the employment is more restricted in its
scope than that which imposes a general duty of good faith. It is clear that
the obligation not to use or disclose information may cover secret processes of
manufacture such as chemical formulae (Amber Size and Chemical Co. Ltd. v.
Menzel [1913] 2 Ch 239), or designs or special methods of construction
(Reid & Sigrist Ltd. v. Moss and Mechanism Ltd. (1932) 49 R.P.C.
461), and other information which is of a sufficiently high degree of
confidentiality as to amount to a trade secret. The obligation does not extend,
however, to cover all information which is given to or acquired by the employee
while in his employment, and in particular may not cover information which is
only "confidential" in the sense that an unauthorised disclosure of such
information to a third party while the employment subsisted would be a clear
breach of the duty of good faith. This distinction is clearly set out in the
judgment of Cross J. in Printers & Finishers Ltd. v. Holloway [1965]
1 W.L.R. 1; [1965] R.P.C. 239."
The qualification was that to be within Class 2, and therefore protectable
by a restrictive covenant, the information must be a trade secret or its
equivalent.
18. As the Court of Appeal pointed out in order to determine whether any
particular item of information comes within Class 3 it is necessary to consider
all the circumstances of the case including, but not limited to, the nature of
the employment, the nature of the information, whether the employer impressed
on the employee the confidentiality of the information and whether such
information may be easily isolated from other information which the employee is
free to use or disclose.
19. I shall consider each of those aspects in due course but there is a
preliminary matter relating to the manner in which Mr Horton's plating cell
came to reflect the basic ideas of Aptec's plating cell. As the judge
commented there were no drawings of Aptec's plating cell. Accordingly there
were no drawings Mr Horton could take away with him. It was not suggested
that he took one of Aptec's cells with him or had photographs of them. The
judge made no factual finding to reflect the comment referred to in paragraph
11 above about the Court's readiness to restrain the use of information
deliberately memorised or carried away. In his witness statement Mr Horton
gives no indication how the plating cell came to be made. It was not
suggested to him in cross-examination that he had obtained the information with
which to construct his own plating cell in any particular manner. Indeed the
only relevant passage appears to be that at pp.668-9 which reads
MR. MEADE: As a unit, the cell with the top plate, how long did it take
you to design that?
A. What do you mean by "design"?
Q. Well I am not using it in any special sense, Mr. Horton, but what I mean
is, how long did it take you to come up with the size, shape and nature of that
plating cell?
A. Well, I knew what I had in mind when I went down to the local plastic
supplier. I asked him what plastic he had. He had this in a large two by
three metre sheet, I think it was, so I knew I was going to be able to make the
plates out of that. I asked him if he had solid, which is what the inside is
made of. I asked him if he had tube, and he had tube, so then it was a
question of knocking it up by eye, which I did on the lathe in my unit.
Q. So in other words, the design process was that you knew what you had in
mind. You went and you chose appropriate components in a single visit to a
plastics supplier?
20. It appears to me therefore that even though the judge considered Mr
Horton to be a dishonest witness the only inference which is justified by the
evidence is that he took the salient features of the plating cell away with him
as part of his general knowledge without any deliberate memorisation. That
inference is supported by the facts that Mr Horton's plating cell did not
include X but, in practice, had to include the features to which the judge
referred once the principle of out of tank plating was adopted. The
significance of the omission will be apparent from the confidential Appendix to
this judgment. The second matter to which I have referred requires more
explanation.
21. As the judge pointed out there was nothing secret about the concept of
out of tank plating. It was a feature of the Hammond paper amongst others.
In addition the judge found that an insoluble anode was both obvious and
pointed out in the Blasberg Note. That such an anode must be fixed centrally
is obvious too. The judge referred to three other features of the Aptec
plating cell, namely, upward circulation of the electrolyte, attachment of the
cylinder by simple adaptor plates and X. Mr Horton's plating cell did not
have X. Upward circulation of the electrolyte was an obvious requirement of
out of tank plating in an unsealed system for the electrolyte would not
circulate as required if it was poured in from the top. What were referred to
as the adaptor plates performed two functions; first they enabled the bore of
the plating cell to be adjusted to that of the cylinder to be plated, second,
arising out of the first, they provide a platform on which the cylinder may
rest. Each of those functions may thus be seen to be consequences of out of
tank plating too. I am very doubtful whether the aggregation of these features
gives rise to a trade secret at all. For the purposes of what follows I will
assume that it does. The question then is whether it is a trade secret of such
a type as to fall within Class 3.
22. It is in that context that I return to the specific matters to which
the Court of Appeal referred in Faccenda Chicken v Fowler [1987] Ch.117,
137 as relevant to whether the information is a trade secret such as to come
within that class. The first is the nature of the employment and whether the
employee habitually handles confidential information so as heighten his
appreciation of its confidential nature. Mr Horton was employed as a sales
engineer who occasionally operated the system some part of which is claimed to
be a trade secret. There was nothing in his contract of employment concerning
secret or confidential material or in his position within Aptec to heighten his
appreciation of its allegedly confidential nature.
23. The second matter is the nature of the information itself. As to this
the Court of Appeal said
"In our judgment the information will only be protected if it can properly
be classed as a trade secret or as material which, while not properly to be
described as a trade secret, is in all the circumstances of such a highly
confidential nature as to require the same protection as a trade secret eo
nomine."
Later the court added
"It is clearly impossible to provide a list of matters which will qualify
as trade secrets or their equivalent. Secret processes of manufacture provide
obvious examples, but innumerable other pieces of information are capable of
being trade secrets, though the secrecy of some information may be only
short-lived. In addition, the fact that the circulation of certain information
is restricted to a limited number of individuals may throw light on the status
of the information and its degree of confidentiality."
As I have already indicated I am prepared to assume that the plating cell
is capable of being a trade secret but I do not think that it attains that
degree of confidentiality as to fall within Class 3. The concept of out of
tank plating is well known and to a greater or lesser extent the features of
the Aptec cell reproduced in Mr Horton's cell are the consequences of adopting
that concept.
24. The third factor is the whether the employer impressed on the employee
the confidentiality of the information to the extent that it shows the
information can properly be regarded as a trade secret. This factor is present
given the findings of the judge concerning the matters to which I have referred
in paragraph 8 above. But it is also clear on the facts of this case that the
claim to confidentiality was much wider than was justified. Thus the judge
dismissed Aptec's claim in respect of the chemistry. Also behind the screen
were other operations such as the cleaning of the cylinder to be coated, the
application of the strike or initial coating and the application of a clear
nickel layer. In Lancashire Fires Ltd v Lyons and Co.Ltd [1996] FSR
629, 673-4 the Court of Appeal held that it was not incumbent on the employer
to point out to the employee the precise limits of what he sought to protect as
confidential information. But, as is apparent from the passage referred to,
the issue in that case related to the central processing unit within which the
trade secrets were to be found. In its reference to "precise limits" the Court
of Appeal made clear that it was not dealing with a case in which extravagant
claims are made from which the confidential nature of a small part is to be
inferred.
25. The fourth factor is whether the information can be easily isolated
from other information the employee is free to use or disclose. In my view it
is not. In his occasional operation of the process Mr Horton could not help
but notice that the concept used was that of out of tank plating with upward
circulation of the electrolyte to the inside of a plate on which cylinders of
different sizes might be rested. It would be obvious that the plate could
also serve as an adaptor of one bore to another and that the anode was
centrally mounted. I do not see how what could be so easily seen and
assimilated could be isolated from the general knowledge of Mr Horton acquired
during his employment with Aptec.
26. For all these reasons I would allow this appeal. I do so without
regret. If my assumption that the information came within class 2 is right
then Aptec might have protected themselves by covenant or patent from which the
duties of Mr Horton would have been plain. If the employer for reasons of his
own does not do so then the court should not, in my view, be astute to find
confidential information within class 3 tucked away in a much wider, but
unjustified, claim to confidential information. Such claims are easily made
but expensive and time-consuming to refute. A junior employee such as Mr
Horton should not be exposed to such a risk except in clear cases.
27. It follows that the questions whether an injunction should have been
granted and if so in what terms do not arise. I would allow the appeal and
discharge the injunctions of Pumfrey J.
28. I would add that one of the features of Aptec's plating cell is X as
described in the confidential Appendix to this judgment. The inclusion of
that step was inventive and confidential. So far as I am aware Mr Horton only
became aware of it as the consequence of discovery and other compulsory
processes of this court. The matter relating to X has not, so far as I am
aware, been canvassed in open court. It follows that the implied undertaking
as to confidentiality applies to all such matter and Mr Horton is not allowed
to use the information he now has regarding X without the prior leave of the
court.
LORD JUSTICE CHADWICK: I agree
MR. JUSTICE CHARLES: I also agree
Order:
1. Appeal allowed. Order of Pumfrey J to be set aside and
injunction order discharged.
2. Claimant to pay 1st Defendant's costs of
appeal and of the application for security for costs, such costs to be
subjected to detailed assessment if not agreed.
3. There is an enquiry of damages sustained by the
1st Defendant from the interlocutory injunction to the final
order.
4. The articles to be delivered up to the 1st
Defendant.