THE Supreme Court’s decision on Friday to throw out a copyright infringement/breach of contract claim brought by Paymaster Jamaica against GraceKennedy and software developer Paul Lowe was a landmark ruling that may have huge implications for two companies and one individual, and more importantly, the treatment of intellectual property rights in corporate Jamaica.

Paymaster, widely recognised as the pioneer of the bill payment industry in Jamaica, filed the claim in 2000, seeking a five-point ruling against Grace and Lowe — for copyright infringement, breach of contract, breach of confidence, inducing breach of contract, and passing off — all related to the creation of Grace’s subsidiary, Bill Express, in 2000 and Lowe’s role in facilitating the launch by selling a software, over which Paymaster claimed ownership rights, to the competitor.

Paymaster’s lead attorney was Dr Lloyd Barnett, one of Jamaica’s most highly regarded constitutional lawyers. Grace’s team was headed by popular local attorneys John Vassell, QC and Michael Hylton, QC from DunnCox, while Lowe was represented by attorney-at-law Vincent Chen.

Paymaster in its lawsuit claimed that Lowe was commissioned and paid to develop a computer programme with specific functionalities to enable the company’s founder, Audrey Marks, to launch her bill collection agency. Lowe, the claim implied, modified an existing cashiering software to achieve this. In addition to the modified programme, Paymaster said it required a higher-level software to fulfil its unique business model and that Lowe was commissioned and paid to build this new programme from scratch and with a different set of source codes. The company charged that it provided the instructions for the creation of the software and paid for the debugging and testing, but once it was perfected, Lowe sold the software to GraceKennedy with very minute modification, enabling that company to fast-track the launch of its subsidiary, Bill Express, in 2000 in direct competition against Paymaster.

But, in Friday’s verdict, Justice Jones sided with the defendants, who argued that Lowe, as the author of the computer programme used by Paymaster to launch its business, had the ownership right to sell the software to Grace, or whomever he chose. Jones ruled that assessment of damages should be made in favour of Lowe and GraceKennedy based on an injunction that had been obtained by Paymaster which prevented Lowe from marketing, and GraceKennedy from using, the software. He, however, granted a six-week stay of judgment to allow Paymaster time to appeal.

“We are very pleased with the outcome of the judgment of the court because it has vindicated our position, which we have held from the beginning,” said GraceKennedy chairman Douglas Orane. “Our position is very clear, we knew from the very beginning that it was right…and the judge has been very explicit in this.”

The ruling comes at a time when Bill Express, which already has over 200 locations and 53 client companies across seven Caribbean countries, is in expansion mode. The company has entered both North American markets — US and Canada — within the last six months in an agressive buildout programme targeting Caribbean nationals.

“Bill Express continues to meet the needs of its customers and we continue to find new ways to do business,” Orane told Sunday Finance.

However, turning his attention back to the court case, the GraceKennedy boss said that he was “…particularly happy for the co-defendent, Paul Lowe, because he has suffered from not being able to earn a living from the fruit of his creation for the last 10 years because of the injunction obtained by Paymaster in 2000.”

Lowe said the injunction was to be blamed for putting him under severe financial stress over the past decade, resulting in him losing his home two years ago because he could not keep up on his mortgage payments.

“It put me under all types of financial pressure… As a small software developer, when you invent something like that, that’s your main income earner,” Lowe told Sunday Finance.

He further argued that, because of the injunction, he had to “start from scratch” and restablish himself, which proved very difficult because, he said, his reputation was soiled.

“Some people were even branding me as a thief,” he claimed.

Lowe said he is currently promoting a new software, which he recently developed, but acknowledged that he was overjoyed that he was now able to claim ownership of the one that was at the centre of the bitter dispute with Paymaster.

“Naturally, I’m delighted to know that the judgment was in my favour but, most importantly, I’m relieved to know that I’m still the owner of the software that I created,” he said.

It is unclear how the court ruling, which ordered an enquiry into damages to be paid by Paymaster to GraceKennedy and Lowe for losses they suffered as a result of the injunction granted on the application by Paymaster in 2000, will affect Marks’ bill payment firm financially.

Indeed, the ruling was a setback for Marks, who was recently appointed Jamaican ambassador to the United States. But the businesswoman has already signalled her intent to appeal the decison, meaning that there yet may be another chapter in the heated affair.

“While we are surprised by (the) judgment, we remain confident in the fundamental integrity and fairness of Jamaica’s judicial system, and recognise that a critical component of the strength of our jurisprudence is its multi-tiered structure,” Marks said in a written statement to Sunday Finance. “Paymaster remains confident in the content of our complaint, and will therefore be appealing (the) ruling to the Court of Appeal.”

The Paymaster boss noted, too, that she wanted “to make it quite clear” that the company never prevented Lowe from using any of his original programs.

“The injunction was against selling the software developed specifically for Paymaster with Paymaster business information embedded in it,” she said.

Paymaster, like Bill Express, has been looking to international markets to spread its revenue stream. Today, the firm has over 166 locations in Jamaica, the United Kingdom and the United States, and bill payment collections are received on behalf of over 50 client companies in Jamaica and 70 in the United States, according to its website.

No matter the eventual outcome, the case is a win for advocates who believe that intellectual property rights are not respected enough in Jamaica, as they are in other parts of the world. Carol Simpson, head of Jamaica Intellectual Copyright Organisation, which monitors copyright infringement, believes that it will set a precedent for other cases and will change the way corporate Jamaica handles issues involving intellectual property going forward.

“It certainly brought out intellectual property issues, which before might not have been considered — as it relates to intellectual property rights when persons are employed to an institution and how to treat it, and there must always be a clear understanding in terms of a contractual arrangement with intellectual property rights,” Simpson told Sunday Finance, adding, “There must be no doubt as to whether or not the employer owns the intellectual property right or that the employee retains some right; it must be clearly stated.

“Of course, this case highlighted the importance of the creative process itself — the input that goes into coming up with an idea and a concept which can eventually become a multi-million dollar entity, which certainly is what happened in the case of Grace and Paymaster,” she said.

Indeed, disputes over Intellectual property are becoming commonplace all over the globe. Below are some popular cases that have made the headlines.

Dyson Appliances v Hoover

This dispute involved “bagless” vacuum cleaning appliances which do not require users to empty or replace the dust-collecting bags characteristic of conventional vacuum cleaners.

Dyson came up with the idea of bagless vaccum cleaners and developed the technology, after which multinational manufacturer Hoover produced a similar product. In a landmark court case that centred on the ownership of ideas, a judge ruled that Hoover was indeed guilty of patent infringement.

DDB Technologies v US sporting leagues, companies

Texas-based DDB Technologies, an intellectual property-holding company, has sued a host of US sporting leagues and companies which it alleges copied its live simulation, play-by-play text, graphics, animation and other patented interactive media-based technologies.

Just last week it filed a lawsuit against the National Basketball Association (NBA) and has also brought cases against ESPN, the NFL and Yahoo. The company recently settled a case against Major League Baseball, with the defendants, as part of the settlement, agreeing to buy a patent and entering into a licensing agreement with another.

Apple v HTC Corp

iPhone manufacter Apple recently went after one of its main rivals in the lucrative but competitive market for smart phones, with patent lawsuits claiming theft of touch screen technology and other features against Taiwanese phone maker HTC Corp.

The Associated Press reported last month that the complaints filed by Apple cover a slew of models made by HTC, including the Nexus One, G1 and myTouch 3G — all using the free, rival Android mobile operating software from Google Inc.

Shepard Fairey v Associated Press

The Associated Press (AP) sued artist Shepard Fairey over his acclaimed “Hope” image of US President Barack Obama during his 2008 election campaign. The AP claimed that the stylized portrait copied one of the news agency’s photographs, and asked for credit and compensation for the work.

The case is still being tried in the Federal Courts.

Nike v Adidas

Nike sued apparel firm Adidas in 2006 for patent infrigement, claiming its rival manufactured shoes using elements of Nike’s SHOX cushioning technology.

Nike alleged that a Kevin Garnett shoe by Adidas was among the footwear that violated Nike’s patent.

“Despite Nike’s patent protection, Adidas has built shoes that use Nike’s technology,” Nike spokesman Vada Manager told the Associated Press at the time.

Shox is technology developed by Nike and incorporated into several of their flagship athletic shoes, which it says, among other things, absorbs impact from heel strike while running and adds more power to a runner’s strides.

The court case is still on going.