The Supreme Court has dismissed an appeal by Koger Inc. and Koger (Dublin) Limited in a dispute over whether rival software ManTra infringed copyright in Koger’s NTAS program. The court affirmed the High Court order after refusing to let Koger pursue a substantially different case on appeal.
The judgment, delivered by Mr Justice Clarke on 18 June 2013, said Koger had confined its High Court case to an allegation that the defendants took and used an unauthorised copy of NTAS to develop ManTra. The High Court found that the defendants had not used any copy of NTAS and had developed ManTra through their own work.
Koger’s original case had included allegations of literal copying of software elements. After its expert witnesses accepted that the elements identified could be found in public or third-party material, that part of the case was no longer pursued. At the close of Koger’s evidence, it reformulated its claim around access to and use of an actual unauthorised copy. It did not ask the High Court to decide whether copyright might have been infringed by copying from memory.
On appeal, Koger argued that the trial judge had mishandled similarities between the software and the evidential burden in copyright cases. It also argued that the court should have considered whether former employees could have copied NTAS from memory. Koger accepted that its best possible outcome would be to set aside the judgment and send the case back for a retrial.
The Supreme Court held that allowing the new argument would require a different case, potentially new evidence and a retrial. It said the defendants’ evidence and approach at trial had been shaped by Koger’s precise reformulated claim. Permitting Koger to change its position at that stage would be unfair. The court also said the appeal grounds depended on allowing Koger to rely on copying from memory, which it had effectively abandoned in the High Court.
The High Court had rejected Koger’s allegations that ManTra’s development relied on an unauthorised NTAS copy. It found the developers had relevant industry and programming expertise, and that similarities between the products did not establish copying. The Supreme Court’s decision did not determine whether copying from memory had occurred; it refused to allow Koger to advance that different case on appeal. It dismissed the appeal and affirmed the trial judge’s order.