Case No. IP-2017-000169

53.Prosyscor argued that Mr Kite devised the entirety of the inventive concept in claim 1. Its primary case in relation to claim 11 was that the claim contained nothing inventive. Alternatively, if it did, the inventive concept was devised by Mr Kite. 54.Netsweeper’s case was that Mr Kite devised the main part of the claim 1 inventive concept, but Mr Erb devised an improvement. This was the idea of using an authentication token, which Mr Erb thought of and explained to Mr Kite in the skype call and email of 30 March 2009. 55.In cross-examination Mr Kite accepted that the authentication token, or URL mangling idea, came from Mr Erb. I find that Mr Erb is therefore joint inventor of claim 1. 56.I am not in a position to determine the inventiveness or otherwise of claim 11 – the idea of separating the filter from the policy server. I will consider who devised the inventive concept on the assumption, not a finding, that it exists. 57.Netsweeper said that the idea came from Mr Erb. That was Mr Erb’s evidence and Mr Kite did not say otherwise. Mr St Ville argued that the separate filter was an implicit part of Mr Kite’s Second Intranet Post and Mr Kite’s draft patent application, the first draft of which was done in May 2011. This suggestion that Mr Kite had devised the separate filter idea and disclosed it to Mr Erb was raised for the first time in Mr St Ville’s closing speech. It was not something Mr Kite had said and it was not pleaded by Prosyscor. It is not clear to me that the idea is implicit in the Second Intranet Post. To the extent that the idea formed part of Mr Kite’s draft patent application, Mr Erb will not have seen that document, certainly not before Netsweeper’s PCT Application was created. It is possible that both gentlemen independently devised the idea. If that is what happened, the inventive concept of claim 11 is in the PCT Application because it was devised by Mr Erb. 58.I find that on the balance of probabilities, Mr Erb devised the claim 11 inventive concept.