Strand, London, WC2A 2LL
B e f o r e :
| FNM CORPORATION LIMITED
|- and -
|DRAMMOCK INTERNATIONAL LIMITED
LEC (L'POOL) LIMITED
Alastair Wilson QC and Matthew Kime (instructed by Ormrods) for the Defendants
Hearing dates: 31 March, 1-3, 23-24 April 2009
Crown Copyright ©
MR JUSTICE ARNOLD :
The background to the claims
"This invention relates to a composition and apparatus for providing a supply of water-based cool mixture and a method of providing a supply of water-based cool mixture.
Cool water or cool water-based mixture has numerous uses and applications in different aspects of life, whether drinking, cosmetic, medical or other uses. The treatment of some medical conditions such as sunstroke/heatstroke which could be fatal, requires rapid cooling of the sufferer by application of cool water. The problem is to keep the water or water-based mixture cool for a long period of time without using refrigerator or power supply. Most name portable sources of cool water mixtures such as the thermos flask or similar are temporary, most working on the principal of providing an insulated medium for the cool water-based mixture which was previously cooled or to include previously frozen ice packs.
Some of the situations which would benefit from the provision of a supply, preferably portable, of water-based cool mixture are discussed below."
"The above leads to the conclusion that a method is required to provide a supply of water-based cool mixture, preferably portable, delivered at a temperature below ambient in hot climates and equally important it must not reach freezing levels in order for it to be effective in addressing the above situations. Ideally the temperature of the cool water-based mixture should vary between approx. 18°C and 23°C in an ambient varying between approx. 25°C and 45° respectively. The method must also include a facility for controlling the temperature of the delivered water-based mixture in order to suit the different applications whilst accommodating the varying ambient temperatures.
A few of the above issues have been addressed in United States Patent Specification No. 5062269 'Disposable Body Cooler' and in Australian Patent Specification No. 63943/90 'Evaporative Cooler for Human Body and Other Articles'. The present inventors are also aware of French Patent Specifications Nos. 2118398 and 2384218, and of the European Patent Specification No. 0334814 B1 and 0414920 A1. The latter describes a foam-forming aerosol preparation, which comprises Dimethyl Ether and water and is essentially flammable (since the flammable content in the preparation exceeds 45% by weight). The inventor of the present invention believes however that the present invention is an improvement over the methods and compositions described in those Specifications. The present invention therefore has as an object the amelioration of the above problems."
"Throughout this specification and claims the following terms shall mean:
Pressurised: subjected to pressure above atmospheric pressure. Body: human body, including limbs, head, face, neck, etc. Cooling: reducing the temperature or elimination/absorption of heat, whether inherent heat or heat acquired as a result of external factors e.g. hot weather, without achieving freezing conditions.
Depending on the desired application, the composition of the cooling mixture may comprise from 3% to 44% by weight of the chemical compound and from 97% to 56% water or demineralised water. The invention is not however to be limited thereto. A material such as a solvent may be included to improve the miscibility/solubility of the chemical compound in the water or to modify the pressure. The amount of solvent included (if present) is preferably from approximately 1% to approximately 15% by weight of the composition. "
"An embodiment of the composition and apparatus of the present invention will now be described, by way of example only. In a preferred embodiment of the invention a mixture of water and dimethyl ether (known commercially as DME or sometimes as methane oxybis, methyl ether or methoxy ethane) is contained within an aerosol dispenser. Dimethyl ether is fully miscible with water, forming one clear liquid phase when the percentage of dimethyl ether in water is no more than approximately 34% by weight at 20°C. The spray is applied onto the body, into the confined space or onto the hot surface and cooling thereof is achieved."
"When the cool water mixture is employed as a spray, control of the spray temperature, when falling on the object, is achieved by varying the spray distance and spray time. The spray distance is directly proportional to the temperature i.e. the longer the spray distance the higher the temperature (less cooling) and the shorter the spray distance the lower the temperature (more cooling). The spray time is inversely proportional to the temperature i.e. the longer the spray time in the lower the temperature (more cooling) and the shorter the spray time, the higher the temperature (less cooling). Ideally the spray distance should vary between 7 cm and 30 cm approximately. The ambient temperature may decide the spray distance and spray time e.g. on very hot days the spray distance may be shortened and spray time is increased to achieve more cooling. On the other hand the nature of the application may decide the spray distance."
" A non-flammable composition
 for providing a supply of water-based cooling mixture,
 the temperature of which when utilised is lower than the ambient temperature and higher than the freezing point of water,
 which composition essentially consists of a mixture of
[a] water and
[b] a chemical compound selected from one or more of dimethyl ether, a homologue of dimethyl ether and a chemical derivative of diethyl ether."
"A composition according to Claim 1, wherein the chemical compound is present in an amount of from 28% to 35% by weight of the composition."
"Apparatus for providing a supply of water-based cooling mixture, the temperature of which when utilised is lower than the ambient temperature and higher than the freezing point of water, which apparatus comprises a pressurized dispensing container, said container containing a composition as claimed in any one of the preceding claims."
Common general knowledge
"The common general knowledge is the technical background of the notional man in the art against which the prior art must be considered. This is not limited to material he has memorised and has at the front of his mind. In includes all that material in the field he is working in which he knows exists, which he would refer to as a matter of course if he cannot remember it and which he understands is generally regarded as sufficiently reliable to use as a foundation for further work or to help understand the pleaded prior art. This does not mean that everything on the shelf which is capable of being referred to without difficulty is common general knowledge nor does it mean that every word in a common text book is either. In the case of standard textbooks, it is likely that all or most of the main text will be common general knowledge. In many cases common general knowledge will include or be reflected in readily available trade literature which a man in the art would be expected to have at his elbow and regard as basic reliable information."
A brief history of aerosols
Aerosol propellants in 1992
"…[DME] has achieved fairly large scale use in certain European countries. DME is said to account for 20% of the aerosol unit production in Belgium (1980), 17% of that in The Netherlands (1980) and 18% of the total in Japan (1979). About 22 million pounds (10,000 metric tons) were produced in Europe in 1980, accounting for about 4.6% of all European aerosols. During 1979 Japanese production amounted to about 13 million pounds (6,500 metric tons), going into about 60 million cans."
"In the presence of oxygen (or air) and ultraviolet light DME will slowly form a rather unique peroxide…. Since peroxides can be thermally or mechanically unstable, and have led to explosions in the case of diethyl ether and di-isopropyl ether, the significance of this reaction was studied in the case of DME. It has not been found to present a problem in either glass or metal containers with DME alone or in formulated products. Conjecturally, this may be because ultraviolet radiation of a sufficiently short wavelength to cause peroxidation cannot penetrate the glass or metal dispenser.
Another potential concern was the generation of bichloromethyl ether (BCME), which is considered to be a powerful carcinogenic compound. Some early data indicated 10 ppb BCME in several aerosol formulas containing both DME and chlorinated compounds. However, later tests on formulas up to four months old showed no BCMR, using special instrumentation with a threshold sensitivity of 1 ppb. ... The suggested BCMA carcinogen problem can thus be dismissed as fiction."
"The toxicological profile of DME is very good. It has a low order of acute, subacute and subchronic inhalation toxicology. Chronic studies funded by du Pont are now in progress."
Later on the same page, he noted that, pending the completion of these studies, Du Pont would only supply DME for use in applications where the inhaled concentrations were very low and not, for example, for cosmetic or air freshener applications. This is the only reservation he expressed about the use of DME.
"During 1981 a well known multi-national marketer in Europe successfully launched a line of hydroalcoholic perfume and deo-cologne sprays based on DME.
Hydroalcoholic and water-based bathroom air freshener sprays containing DME have been sold successfully in several European countries for a decade. ... Hydroalcoholic hair sprays containing up to about 15% water, along with 35% ethanol and 50% DME, have been developed ... These products are now commercial in Europe.
Underlying all these product developments is the element of cost. Both ethanol and isopropanol are taxed and are very expensive in Europe. By using a larger amount of propellant (facilitated by DME) costs can be reduced since less alcohol is required. A similar rationale can be made for using more water, which (again) is facilitated by DME formulations. …
The fiscal situation in the U.S.A. is remarkably different. Our ethanol is tax-free and sells for about 10% of the Dutch price, while DME is marketed at $0.57/lb by the sole U.S. supplier, which is around over two times the estimate current price in Europe. As a result, marketers wishing to use DME must be first prepared to pay more for their product, even if more water is used. This key factor is expected strongly to depress U.S. sales of DME except in those specific circumstances where the use of this unique propellant provides a benefit that outweighs the financial disincentive."
"In summary, dimethyl ether is a highly interesting propellant, capable of doing many things better than the conventional propellants. It is destined for a greater role in European and Japanese aerosol products. If the price decreases in the U.S.A. and Canada, its utilization in those two countries should increase remarkably in the coming years."
i) It is not considered to be damaging to the ozone layer.
ii) It is flammable, but can be incorporated into compositions which are non-flammable if the total flammable content does not exceed 45% (see below). This is particularly true of aqueous compositions.
iii) It is unique among propellants in being highly soluble in water. As the Patent correctly states, the solubility of DME in water at 20°C is approximately 34% by weight.
"Because DME is such a strong solvent, special precautions must be used in the selection of valve gaskets and crimping specifications. …
In the case of stem gaskets, neoprene ... is good unless the methylene chloride content of the formula exceeds about 25%. Buna is possibly the best from a weight-loss standpoint, but even small additions of methylene chloride can be disastrous. The modified bunas used in Europe and to a small extent in the U.S.A. are very good and have less sensitivity to methylene chloride. Butyl rubbers are generally excellent ..."
"This rather large market is divided into two distinct product types: the air freshener and the alcohol-based disinfectant/deodorant sprays. Nearly all air fresheners consist of 0.4 to 1.0% perfume, with about 68% water, small amounts of emulsifier and inhibitors, and about 30 to 32% of hydrocarbon propellant blend… A few have actual deodorant materials, such as 3,5,5-trimethylhexanal. Still fewer are ethanol or isopropanol based, with these solvents replacing the water to give a more elegant, drier spray."
Cooling spray aerosols
Aerosol cans and components
For providing a supply of water-based cooling mixture
" ... with respect to a claim to a new use of a known compound, such new use may reflect a newly discovered technical effect described in the patent. The attaining of such a technical effect should then be considered as a functional technical feature of the claim (for example, the achievement in a particular context of that technical effect). If that technical feature has not been previously made available to the public in any of the means as set out in Article 54(2) EPC, then the claimed invention is novel, even though such technical effect may have inherently taken place in the course of carrying out what has previously been made available to the public."
"Use of at least 1% by weight based on the total composition of a borated glycerol ester or borated thioglycerol ester produced by borating a glycerol ester or a thioglycerol ester of the formula …. as a friction reducing additive in a lubricant composition comprising a major portion of a lubricating oil"
"40. That conclusion depended upon two strands of reasoning. First, that prior use was not a ground of invalidity. Thus prior use that did not make the invention available to the public could not invalidate the invention. Similar reasoning was applied by the House of Lords in Merrell Dow. Secondly, a purposive construction of the claim according to the Protocol on Interpretation was required. Thus, claims should in appropriate circumstances be interpreted as being limited to the technical effect, namely the physical activity. It followed that in the case being considered, the claim to an additive in lubricating oil for reducing friction should be interpreted as a claim to the product when used for reducing friction. Such a claim would be novel if the use had not previously been made available to the public. However it is relevant to note that similar reasoning cannot be applied in relation to a Swiss-type claim, as such a claim cannot be interpreted as relating to the product when used because that would constitute a method of treatment which is prohibited under the EPC.
41. I do not believe that the Mobil case qualifies or amplifies the conclusion reached in Eisai. The decision in Eisai was based upon the interplay between Articles 52(4) and 54(5) of the EPC; whereas Mobil depended upon purposive construction of the claims so as to limit the claims to the product when used together with an application of Article 52(2)."
"… a claim to a particular use of a compound is in effect a claim to the physical entity (the compound) only when it is being used in the course of the particular physical activity (the use) …"
"If a claim commences with such words as: 'Apparatus for carrying out the process etc...' this must be construed as meaning merely apparatus suitable for carrying out the process. Apparatus which otherwise possesses all of the features specified in the claims but which would be unsuitable for the stated purpose or would require modification to enable it to be so used, should normally not be considered as anticipating the claim. Similar considerations apply to a claim for a product for a particular use. For example, if a claim refers to a 'mold for molten steel', this implies certain limitations for the mold. Therefore, a plastic ice cube tray with a melting point much lower than that of steel would not come within the claim. Similarly, a claim to a substance or composition for a particular use should be construed as meaning a substance or composition which is in fact suitable for the stated use; a known product which prima facie is the same as the substance or composition defined in the claim, but which is in a form which would render it unsuitable for the stated use, would not deprive the claim of novelty. However, if the known product is in a form in which it is in fact suitable for the stated use, though it has never been described for that use, it would deprive the claim of novelty. An exception to this general principle of interpretation is where the claim is to a known substance or composition for use in a surgical, therapeutic or diagnostic method (see IV, 4.8).
In contrast to an apparatus or product claim, in case of a method claim commencing with such words as: 'Method for remelting galvanic layers' the part 'for remelting ...' should not be understood as meaning that the process is merely suitable for remelting galvanic layers, but rather as a functional feature concerning the remelting of galvanic layers and, hence, defining one of the method steps of the claimed method (see T 848/93, not published in OJ)."
The temperature of which when utilised is lower than the ambient temperature and higher than the freezing point of water
Consists essentially of
The prior publications
"Our invention provides self-propelled liquid dispensing utilising a comparatively inexpensive, flammable propellant, i.e. dimethyl ether, to dispense an active ingredient containing liquid aqueous phase in the form of a non-foaming, non-flammable spray containing relatively large amounts of water with complete extrusion of the liquid aqueous phase. Moreover, in accordance with our invention a finely atomized spray approaching the properties of a conventional anhydrous spray can be obtained.
As embodied in a dispensing device, our invention comprises a self-propelled liquid dispenser including a container containing under pressure a fluid system comprising a propellant vapour phase and an essentially continuous liquid aqueous phase containing an active ingredient solute, water and a propellant comprising dimethyl ether, and a valve member associated with the top of the container for dispensing the contents of the container in the form of a spray."
"The liquid aqueous phase of this system was continuous and a spray of this product was characterized by a finely atomized spray approaching conventional anhydrous type products. The product sprayed down evenly and was extruded completely as a non-flammable spray."
"The carrier mixtures, according to the invention, of the aerosol preparations can be formulated with cosmetic, hygienically or medically active constituents (active ingredients) and yield preparations for diverse purposes, for example as a cosmetic spray, room spray or medicinal spray, preferably deodorant sprays."
"The method of the present invention has been found to be particularly effective when a temperature in the range of from about 25° to 35° F is rapidly attained on the exterior surface and orifice end of the teat 12 of the cow. Such a temperature should be obtained for at least approximately one second duration in order to achieve proper contraction of the sphincter 26. In general, the reduction of temperature on the teat surface adjacent the teat orifice 24 should be a value as cold as practical without creating tissue damage, preferably close to or slightly below the freezing temperature of water. The composition of the present invention has been found to provide such temperatures when applied as an aerosol spray 14 described herein."
DME Aerosol Propellant Service Manual
The prior uses
"A water and DME mixture; an active ingredient Vantocil 1B (sourced from ICI) which is a disinfectant; a perfume. There was some ethanol. A corrosion inhibitor was present."
"At the same time as I found the sanitizer formulation, as part of this computerisation of the documentary records of some of the former products of LEC, I found two other formulations of interest. One was a foot cooling spray. The other was a sunbed cleaning or sanitizer spray. Both of these were water and DME mixtures of approximately 2 parts water and 1 part DME."
"Q. I now understand what you are saying. Moving on to paragraph 9, where you talk about two other formulations of interest. One was a foot cooling spray. The other was a sunbed cleaning or sanitizer spray. 'Both of these were water and DME mixtures of approximately 2 parts water and 1 part DME.' That you remember, do you?
A. Yes. One I noticed was a shadow of that particular one.
Q. It was a shadow of that. So it was very similar to this?
A. Yes. And the other one was a free-standing one. But the details, apart from what I have put down there, I do not know. I cannot remember.
Q. Why did you not put these two other products on the computer?
A. In actual fact, I looked at the first one and I thought I could actually change that to make that a mixture of butane and DME in the future some time. That was all. It was an experiment for me.
Q. So it was for your benefit that you wrote this down rather than the company's benefit?
Q. As far as those products are concerned, you do not remember any more about them than one was quite similar to the first one and the other one was different?
A. Yes; it was more ethanol.
Q. It was more ethanol. That, one would suppose, might be the sunbed cleaner?
A. The sunbed cleaner was the shadow of the original shoe spray.
Q. So the foot cooling spray had a lot of ethanol in it, you are saying?
A. There was more ethanol in it; yes.
Q. Do you know how much?
A. I do not remember. It may be double. I don't know."
"The foot cooling spray formulation I found in the LEC old files when I found the sanitizer spray was a composition with a product to 'gas' ratio (weight to weight) of 68:34 or 70:30. DME was the propellant; with 5% (weight by weight) ethanol at most; and no Vantocil 1B (no disinfectant). The bulk of the weight was made up of water.
The sun bed cleaning or sunbed sanitizer spray formulation I found in the LEC old files when I found the sanitizer spray was a composition with a product to 'gas' ratio (weight to weight) of 68:34 or 70:30. DME was the propellant; with less than 10% (weight by weight) ethanol (for flammability reasons), and with Vantocil 1B (disinfectant). The bulk of the weight was made up of water."
The prior uses
"(1) (a) Identify the notional 'person skilled in the art';
(b) Identify the relevant common general knowledge of that person;
(2) Identify the inventive concept of the claim in question or if that cannot readily be done, construe it;
(3) Identify what, if any, differences exist between the matter cited as forming part of the 'state of the art' and the inventive concept of the claim or the claim as construed;
(4) Viewed without any knowledge of the alleged invention as claimed, do those differences constitute steps which would have been obvious to the person skilled in the art or do they require any degree of invention?"
"The question of obviousness must be considered on the facts of each case. The court must consider the weight to be attached to any particular factor in the light of all the relevant circumstances. These may include such matters as the motive to find a solution to the problem the patent addresses, the number and extent of the possible avenues of research, the effort involved in pursuing them and the expectation of success."
The inventive concepts
Obviousness in the light of common general knowledge
Presant, Schwarzkopf II and Westfall
DME Aerosol Propellant Service Manual
"(1) Where a person (whether or not the proprietor of, or entitled to any right in, a patent) by circulars, advertisements or otherwise threatens another person with proceedings for any infringement of a patent, a person aggrieved by the threats (whether or not he is the person to whom the threats are made) may, subject to subsection (4) below, bring proceedings in the court against the person making the threats, claiming any relief mentioned in subsection (3) below.
(2) In any such proceedings the claimant or pursuer shall, subject to subsection (2A) below, be entitled to the relief claimed if he proves that the threats were made and satisfies the court that he is a person aggrieved by them.
(2A) If the defendant or defender proves that the acts in respect of which proceedings were threatened constitute or, if done, would constitute an infringement of a patent –
(a) the claimant or pursuer shall be entitled to the relief claimed only if he shows that the patent alleged to be infringed is invalid in a relevant respect;
(b) even if the claimant or pursuer does show that the patent is invalid in a relevant respect, he shall not be entitled to the relief claimed if the defendant or defender proves that at the time of making the threats he did not know, and had no reason to suspect, that the patent was invalid in that respect.
(3) The said relief is –
(a) a declaration or declarator to the effect that the threats are unjustifiable;
(b) an injunction or interdict against the continuance of the threats; and
(c) damages in respect of any loss which the claimant or pursuer has sustained by the threats.
(4) Proceedings may not be brought under this section for –
(a) a threat to bring proceedings for an infringement alleged to consist of making or importing a product for disposal or of using a process, or
(b) a threat, made to a person who has made or imported a product for disposal or used a process, to bring proceedings for an infringement alleged to consist of doing anything else in relation to that product or process.
(5) For the purposes of this section a person does not threaten another person with proceedings for infringement of a patent if he merely –
(a) provides factual information about the patent,
(b) makes enquiries of the other person for the sole purpose of discovering whether, or by whom, the patent has been infringed as mentioned in subsection (4)(a) above, or
(c) makes an assertion about the patent for the purpose of any enquiries so made.
(6) In proceedings under this section for threats made by one person (A) to another (B) in respect of an alleged infringement of a patent for an invention, it shall be a defence for A to prove that he used his best endeavours, without success, to discover
(a) where the invention is a product, the identity of the person (if any) who made or (in the case of an imported product) imported it for disposal;
(b) where the invention is a process and the alleged infringement consists of offering it for use, the identity of a person who used the process;
(c) where the invention is a process and the alleged infringement is an act falling within section 60(1)(c) above, the identity of the person who used the process to produce the product in question;
and that he notified B accordingly, before or at the time of making the threats, identifying the endeavours used."
The alleged threats
i) a letter from FNM's patent attorneys, Marks & Clerk, to Drammock dated 18 June 2007;
ii) an email from FNM to Superdrug, a customer of Drammock's, dated 3 July 2007;
iii) a letter from Marks & Clerk to Drammock's then solicitors, Blacks, dated 9 August 2007;
iv) a letter from Marks & Clerk to Blacks dated 24 September 2007;
v) a letter from Marks & Clerk to Blacks dated 1 November 2007; and
vi) a letter from Marks & Clerk to Blacks dated 6 December 2007.
Were the communications threats?
"We write to inform you of a dispute currently existing between Drammock International Ltd ('Drammock') and France Med Pharma in relation to Drammock's product 'Beauty Formulas Face and Body Cooling Mist' formulated using DME and water, and the granted European Patent (United Kingdom) No. EP0673403 'Composition & Apparatus for Providing a Supply of Water-Based Cool Mixture' which FNM Corporation Ltd T/A FranceMed Pharma holds."
"… I believe the recipient would consider what was the purpose of the letter. He would conclude that the purpose of the letter was to give him information and a warning. That requires the answer: a warning as to what?"
"Please note that we have been informed by the owners of magical that they believe you are infringing a patent with your 'Face and Body Cooling Mist'. In our standard terms and conditions it states that Drammock will be liable for any costs incurred by Superdrug in relation to a patent dispute (e.g. costs of product recall etc)."
Were the letters from Marks & Clerks protected by section 70(4)?
"It has come to the attention of our client that your Company, Drammock International Ltd, is manufacturing an aerosol spray product called 'BEAUTY FORMULAS Face & Body Cooling Mist' ('the Infringing Product'). The ingredients of the Infringing Product are water and dimethyl ether. We have advised our clients that your company is infringing European Patent (United Kingdom) EP0673403 and that it is entitled to an interim injunction, a permanent injunction, an award of costs against your Company and damages from your Company.
Unless we receive from you 5.0 pm on 26th June 2007 undertakings as set out in the attached document, our client will, without further warning to you, commence proceedings for patent infringement in the High Court. In those proceedings, it will seek from the Court an order in respect of all the remedies to which it is entitled."
"2. immediately to cease manufacturing and supplying the Infringing Product and any other products produced under different brand names including retailers own brands that also infringe the patent ('other Infringing Products');
4. immediately to supply you with:
(c) a list of retailers, companies and persons to whom we have supplied the Infringing Product or other Infringing Products together with the number of packs (units) that supplied to each entity; and
5. to meet in full FranceMed's reasonable expenses and to pay FranceMed damages to compensate for sales lost to the Infringing Product or other Infringing Products, by a date no later than 31st July 2007."
Is FNM protected by section 70(2A)(b)?
Have the defendants suffered any loss?
Breach of contract
"II – AGREEMENT
In consideration of being made privy to trade-secret information belonging to FRANCE MED, FRANCE MED hereby agrees not to disclose this information to third parties and to treat this information as a trade secret belonging to FRANCE MED.
III – TRADE SECRET
The information to be treated as a trade secret is all confidential information related to MAGICOOL product range.
V – EXECUTION
This Agreement is executed on 1 May 1997 and shall remain in effect until the information included herein is no longer a trade secret or until FRANCE MED sends FRANCE MED a written notice releasing them from the obligations of this Agreement, whichever event occurs first."
Did the information constitute trade secrets?
Did LEC misuse the information?
i) Claims 1, 2 and 7 of the Patent are anticipated by Presant, Schwarzkopf II, Westfall and the LEC foot-cooling and sunbed sanitizer sprays. Claims 1, 2 and 7 of the Patent are obvious in the light of the common general knowledge mineral water cooling sprays, the DME Aerosol Propellant Service Manual and Tan. Claims 1 and 7 are also obvious over Yudin. Accordingly, the Patent is invalid and must be revoked.
ii) The email from FNM to Superdrug was a threat. The letters from Marks & Clerk to Drammock were not protected by section 70(4) of the 1977 Act. FNM is protected in respect of all of the threats by section 70(2A)(b). Accordingly, the defendants' counterclaim in respect of threats is dismissed.
iii) The precise formulation of Magicool is a trade secret of FNM's, but LEC did not misuse that information when formulating the DME-based Cooling Mist for Drammock. The identity of FNM's valve and actuator, including the Lindal valve selected by Mrs Malek in 2005, is not a trade secret. In any event LEC did not misuse this information. Accordingly, FNM's claim for breach of contract is dismissed.