Arbitron Inc v Telecontrol Aktiengesellschaft

[2009] FCA 1438

FEDERAL COURT OF AUSTRALIA

Arbitron Inc v Telecontrol Aktiengesellschaft [2009] FCA 1438

ARBITRON INC v TELECONTROL AKTIENGESELLSCHAFT and ANOR

NSD 627 of 2005

EMMETT J
4 DECEMBER 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 627 of 2005

BETWEEN:

ARBITRON INC
Applicant

AND:

TELECONTROL AKTIENGESELLSCHAFT
First Respondent

AC NIELSEN (HOLDINGS) PTY LTD (ACN 008 417 874)
Second Respondent

JUDGE:

EMMETT J

DATE OF ORDER:

4 DECEMBER 2009

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.Until further order, access to the provisional reasons provided by the Court to the legal representatives of the applicant and the first respondent on 4 December 2009 be limited to those legal representatives.

2.Those legal representatives consult as to the following:

(a)any parts of the provisional reasons that should be the subject of any continuing order for confidentiality;

(b)any matters of a technical nature dealt with in the provisional reasons that require correction;

(c)the question of costs of the proceeding in the light of the conclusions stated in the provisional reasons.

3.The proceeding be listed for directions on 5 February 2010 for the purpose of considering any disputed matter arising from those consultations and to consider the question of the costs of the proceeding.

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

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 627 of 2005

BETWEEN:

ARBITRON INC
Applicant

AND:

TELECONTROL AKTIENGESELLSCHAFT
First Respondent

AC NIELSEN (HOLDINGS) PTY LTD (ACN 008 417 874)
Second Respondent

JUDGE:	EMMETT J
DATE:	4 DECEMBER 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This proceeding is concerned with the validity of Australian Patent No. 747044 and its alleged infringement.  The claimed invention of the Patent is a method and system for recognition of broadcast signals.  It relates to the automatic recognition of widely disseminated audio signals such as television and radio broadcasts. 

2. The patentee, Arbitron Inc, asserts that the first respondent, Telecontrol Aktiengesellschaft, has infringed the patent by sale or supply or other disposition of various devices variously known as Watch Meter, Media Watch, Radiocontrol or Media Control.  Telecontrol has filed a cross claim seeking revocation of the Patent.

3. The proceeding was heard over several days in March 2009.  Following completion of the hearing, the parties provided detailed consolidated submissions which were finalised by the end of April 2009. 

4. I have concluded that the Patent is valid but that there has been no infringement of the Patent by Telecontrol.  I have prepared reasons for those conclusions, much of which were completed within a relatively short time after the receipt of consolidated submissions from the parties.  However, the exigencies of other work of the Court has resulted in the finalisation and proofing of the reasons being delayed for some time.

5. The subject matter of the dispute is highly technical and the proceeding has involved the examination of confidential material concerning Telecontrol’s system.  In the circumstances, I propose to treat my reasons as provisional and to make them available to the legal representatives of the parties on the basis that access to the reasons be limited for the time being to those legal representatives.  I propose to direct that, after the legal representatives have had a reasonable opportunity to consider the provisional reasons, they indicate whether there are any parts of the reasons that should be kept confidential and to indicate any technical aspects of the subject matter of the reasons that require correction.  The parties should then be in a position to indicate whether there is any dispute as to the appropriate costs order in the light of my conclusions and the reasons for the conclusions.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:
Dated:       8 December 2009

Counsel for the Applicant:	Mr DK Catterns QC with Ms SJ Goddard SC
Solicitor for the Applicant:	Spruson and Ferguson Lawyers
Counsel for the Respondents:	Mr D Shavin QC with Ms JR Baird SC
Solicitor for the Respondents:	Griffith Hack
Counsel for the Commissioner of Patents:	Mr GC McGowan SC
Solicitor for the Commissioner of Patents:	Australian Government Solicitor

Date of Hearing:	9-17 March 2009
Date of Final Submissions:	24 April 2009
Date of Judgment:	4 December 2009