Cooke v Watermist Ltd

A tribunal may resolve a disputed issue by applying the burden of proof where, despite conscientiously assessing the evidence, it cannot reasonably make a finding. That situation is exceptional, but it can arise in any kind of factual dispute. The tribunal must show that it tried to reach a finding and explain why it could not do so. An appellate court should approach an appeal from a specialist tribunal with caution. It should not substitute its own assessment of the evidence, particularly where the tribunal saw and heard the witnesses. A finding of primary fact based on witness assessment should be overturned only if plainly wrong. The hearing officer was entitled to find that the claimant had not proved inventorship and the appeal was dismissed.

Andrew Cooke appealed against the part of a decision of the Comptroller-General’s hearing officer dated 23 July 2013, BL O/275/13, which rejected his claim to be a co-inventor of, and co-entitled to, UK Patent No 2458698 granted to Watermist Ltd. The dispute concerned whether Mr Cooke or William Bridgman had devised the inventive concept of placing a pump and motor inside a hose-reel cabinet. The appeal alleged that the hearing officer had impermissibly relied on the burden of proof and had reached a conclusion contrary to the evidence.

The appeal was dismissed.

1. Burden of proof. The principles in Stephens v Cannon [2005] EWCA Civ 222 permit resort to the burden of proof where, notwithstanding an effort to do so, the tribunal cannot reasonably make a finding on a disputed issue. The tribunal must demonstrate its endeavour and explain its inability to decide the issue. The present case was capable of producing such a state of agnosticism because the evidence was substantially one witness against another, with little documentary assistance. The hearing officer had been entitled to apply the burden of proof.
2. Assessment of the evidence. The hearing officer had recognised that Mr Cooke gave a credible and consistent account, but had also assessed the relative credibility of Mr Cooke and Mr Bridgman. He was entitled to take account cumulatively of matters affecting Mr Cooke’s credibility and of Mr Cooke’s delay in asserting his claim. The appellate court could not properly substitute its own view.
3. Appellate restraint. An appeal from a specialist tribunal requires an appropriate degree of caution. The tribunal is the judge of the facts, and its findings based on the evidence of witnesses whom it saw and heard should be overturned only where the appellate court is satisfied that they were plainly wrong. The hearing officer had conscientiously weighed the evidence and it was not shown that only one conclusion was open to him.
4. The hearing officer’s conclusion that Mr Cooke had failed to establish on the balance of probabilities that he devised the inventive concept was therefore upheld.

1. High Court (Patents Court): appeal dismissed. The court upheld the hearing officer’s decision dated 23 July 2013, BL O/275/13.