Case No. IP-2018-000182

40.As I have found that the Agreement had no binding legal force (or if it did, Volumatic would be estopped from enforcing it), whether or not it was varied is immaterial. However, for completeness, I note that IFL relies on the post signing conduct of both parties as offers by conduct by each party not to be bound by Stages 2 and 3 of the Agreement, which were then accepted by the other party by its conduct. As a result, IFL said that Stages 2 and 3 of the Agreement have been varied (Volumatic said IFL must mean “discharged” on the basis that IFL alleged that there are no further obligations under Stages 2 and 3 at all, but Volumatic conceded that the principles to be applied do not differ for present purposes). 41.Volumatic accepted that some of the post-signing conduct may amount to variation, but not so as to discharge Stages 2 and 3 of the Agreement: for example, the agreed change in royalty rate is merely that, not a discharge of the whole of Stages 2 and 3. But Volumatic said that the other factors relied on are part of the course of negotiations between the parties, or evidence of breach, but not so as to discharge or vary the Agreement. Mr Tilley described the Agreement in this context as “a useful backstop for both parties”. 42.I agree with Volumatic. If (contrary to what I have found) the Agreement is binding and enforceable, then the conduct of the parties may have varied the Agreement (for example, in relation to royalty rates and per Pouch cost), but it did not discharge Stages 2 and/or 3. I do not accept that any of the exchanges (written, oral or by conduct) to which I was referred amounts to an offer to discharge the Agreement, let alone an offer that was then accepted. No variation was proposed or accepted in relation to the assignment of the intellectual property. I therefore reject IFL’s argument.