Case No. IP-2018-000200

Mr Penhallurick’s evidence 43.Mr Penhallurick explained in his witness statement that between December 1992 until October 2005 he was a police officer with the South Yorkshire Police. In about 2001 he was introduced to VMware, the software I have mentioned which allows the installation of the operating system of a computer on to a virtual computer generated by the software. 44.From 2002 to 2005 Mr Penhallurick also attended Cranfield University. His final year project involved the creation of what he called his VFC methodology. 45.His evidence in chief continued: in about September 2006 he started to write software which embodied his methodology and which served to automate it. In mid-2006 he spoke to Mr Boyd, then a director of MD5 whom he had met when Mr Boyd had been in the National Crime Squad. Mr Boyd offered Mr Penhallurick a 12 week contract with MD5. 46.Mr Penhallurick said that by the time he started at MD5 he had already created the First and Second Works relied on by him in this action: the first VFC software and the compiled object code. Within weeks of joining MD5 he shared his manual VFC method with MD5. 47.In cross-examination Mr Penhallurick clarified what he had said in his witness statements. He confirmed that his methodology had been developed at Cranfield and added that his understanding had been that if he wrote any software it would go to the university; he had not written any software at that time. He also repeated that by the time he arrived at MD5 he had developed some VFC software. But he stated that it did not work and was not worth mentioning to MD5. 48.Mr Penhallurick later said in cross-examination that the breakthrough in developing the VFC software came in the last weeks of December 2006 and that he had demonstrated this software to Mr Boyd in January 2007. On the other hand, when taken to a page of source code which on its face had been created on 23 December 2006 and last written on 30 December 2006, he said that this had been his first attempt at an automatic methodology. MD5’s evidence 49.Mr Green said that shortly after Mr Penhallurick joined MD5 he demonstrated his VFC methodology, not any software. He was not sure in cross-examination when this was but settled on November or early December. As counsel for Mr Penhallurick said in closing, this was likely since it accorded with the evidence of other witnesses. 50.Having been shown the method, Mr Green thought that using software to operate the method would speed it up. Mr Penhallurick had expressed confidence that he could convert his manual methodology into a program. Following discussion with Mr Boyd, Mr Penhallurick was allocated time to do this. 51.Mr Boyd’s evidence was that the manual VFC process demonstrated by Mr Penhallurick took a lengthy 24-48 hours to complete. Mr Boyd’s recollection was that he too thought that it would be helpful to have software created to carry out the process. He discussed with Mr Green the possibility of hiring a third party to do the work, but Mr Penhallurick had assured them he had programming skills and was keen to be given the job. In cross-examination he stated that Mr Penhallurick had worked on the software from January until midMarch 2007. Discussion52.There was in evidence a Staff Annual Appraisal dated 31 August 2007, completed by Mr Penhallurick. It included this in Mr Penhallurick’s handwriting: “During February/March, I was given time to develop VFC, a product which is still performing well in the sales arena, even though further development is still required.” 53.The product in question still selling well was the VFC software. Mr Penhallurick’s own appraisal sits more easily with the recollection of Mr Green and Mr Boyd than Mr Penhallurick’s assertion that his breakthrough came in December 2006. 54.I found the evidence of Mr Green and Mr Boyd more convincing than that of Mr Penhallurick on this subject. I believe that they suggested to Mr Penhallurick that software should be written to automate the VFC method and that Mr Penhallurick volunteered to do it. It may be that Mr Penhallurick had done something by way of working on VFC software before he joined MD5 but on his own admission it did not work and was not worth showing to MD5. If any such software existed, I think it is likely that he abandoned it and started again while employed by MD5. He probably started in late December 2006 and carried out the bulk of the work from January to March 2007. The important point I draw from this is that whatever the precise date on which Mr Penhallurick first started work on what became the VFC source code as compiled for use in MD5’s products, it was after the beginning of his employment with MD5. 55.The First and Second Works, if they ever existed, are of no relevance to Mr Penhallurick’s claim in this action.