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Allsop Inc v Bintang Ltd

Allsop Inc v Bintang Ltd

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Case Copied 8 August 1989 38 min read

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Re: ALLSOP INC. AND COMMUNICATIONS POWER INCORPORATED (AUST.) PTY.
LIMITED
And: BINTANG LIMITED; PETER ROBERT STANTON; GOLDRING AUDIO INDUSTRIES
PTY. LIMITED AND CLURAT PTY. LIMITED
No. G1190 of 1988
FED No. 428
(1989) AIPC para 90-615
Patents
15 IPR 686

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.(1), Beaumont(1) and Burchett(1) JJ.

CATCHWORDS

Patents - infringement - two patents for devices for cleaning the playing head of a cassette player - whether the respondents' "Flexibar" device replicates mechanical means, described in first patent, by which action of cassette player is converted to cleaning action - whether "Flexibar" device involves "a lever arm pivotally mounted in the container for reciprocating motion" - whether a "lever arm" is an essential integer of appellants' first patent - observations as to construction of claims in a complete specification - meanings of "lever", "pivotally", "mounted", "reciprocating".

Patents - counter-claim for revocation of second of appellants' patents - obviousness - application of test stated by Aickin J. in The Wellcome Foundation Ltd v. VR Laboratories (Aust) Pty Ltd (1981) 148 CLR 262, 270 - discussion of characteristics possessed by hypothetical "worker in the field" and of the nature of "inventiveness" - principles relating to "obviousness" - question of fact - relevance of known need/longfelt demand for, and substantial commercial success of, claimed invention.

Patents Act 1952 s.100(1)(e)

HEARING

SYDNEY

#DATE 8:8:1989

Counsel for the Appellants: Mr K.R. Handley Q.C. with Mr D.M. Yates

Solicitors for the Appellants: Norbert Lipton & Sankey

Counsel for the Respondents: Dr J. Emmerson Q.C. with

Mr G.C. Lindsay and Mr J.T. Gleeson

Solicitors for the 1st and 3rd
Respondents: Freehill, Hollingdale & Page

Solicitors for the 2nd and 4th Respondents: Dunhill Morgan

ORDER

The appeal be dismissed with costs.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

Allsop Inc., the first appellant, is the patentee of Letters Patent No. 522073 ("the first patent") and Letters Patent No. 539569 ("the second patent"). The patented invention is, in the case of the first patent, entitled "a cleaner for a cassette player". The second is similarly entitled. The first appellant and its licensee, Communications Power Incorporated (Aust.) Pty. Limited, the second appellant, instituted proceedings in the Supreme Court of New South Wales against Bintang Limited, the first respondent, and Peter Robert Stanton, the second respondent, seeking (inter alia) declarations: (1) that the distribution and sale by the first respondent of an audio cassette cleaner known as the "THC-83" infringed the second patent; and (2) that the manufacture and sale by the second respondent and the distribution and sale by the first respondent of another audio cassette cleaner, known as the "Flexibar Head Cleaner", infringed the first and second patents. After the institution of the proceedings, Goldring Audio Industries Pty. Limited, the third respondent, and Clurat Pty. Limited, the fourth respondent, were added as defendants upon the footing that: (1) the claims made against the first…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1989] FCA 428
Decision Date: 08 AUGUST 1989

CaseChat Overview and Summary

Allsop Inc brought an action against Bintang Ltd in the Federal Court of Australia for patent infringement. The appellant, Allsop Inc, held two patents for devices designed to clean the playing head of a cassette player. The first patent outlined a mechanism where the action of the cassette player itself is converted into a cleaning action through a lever arm pivotally mounted within the container, enabling reciprocating motion. The second patent was for a method of producing the device described in the first patent. Bintang Ltd manufactured and sold the "Flexibar" device, which Allsop Inc claimed replicated the mechanical means described in their first patent. The primary legal issue before the court was whether the "Flexibar" device involved "a lever arm pivotally mounted in the container for reciprocating motion," and if "a lever arm" was an essential part of Allsop Inc's first patent.

The court examined the construction of the claims within the complete specification of the first patent. It considered the meanings of terms such as "lever," "pivotally," "mounted," and "reciprocating" to determine whether the "Flexibar" device met the criteria set out in the patent. The court concluded that the "Flexibar" device did not involve a lever arm pivotally mounted in the container for reciprocating motion as required by the patent. It found that the "Flexibar" mechanism differed fundamentally from the one described in the patent. As a result, the court held that Bintang Ltd's "Flexibar" device did not infringe Allsop Inc's first patent. The appeal by Allsop Inc was dismissed with costs awarded to Bintang Ltd.

The court's decision hinged on the interpretation of specific terms within the patent claims and the comparison of the patented mechanism with the "Flexibar" device. The detailed analysis of these terms and their application to the facts of the case led to the conclusion that the "Flexibar" device did not replicate the essential features of the patented mechanism. The dismissal of the appeal and the imposition of costs reflect the court's view that Allsop Inc's claims of infringement were not substantiated by the evidence presented.

Orders

Orders of the court

The appeal be dismissed with costs.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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