Aus Fence Hire Pty Ltd v Thomas

FEDERAL COURT OF AUSTRALIA

Aus Fence Hire Pty Ltd v Thomas [2004] FCA 557

INTELLECTUAL PROPERTY – patents – revocation – innovation patent – invention not a patentable invention – lack of novelty when compared with the prior art base as it existed before the priority date – application of reverse infringement test – whether the alleged anticipation in the prior art base would constitute an infringement if the patent were valid

PRACTICE AND PROCEDURE – judgments and orders – default judgment – judgment in default of defence – where failure to file a defence

Patents Act 1990 (Cth) ss 138(1), 138(1A), 138(3), 18(1A) 7(1), Schedule 1

Meyers Taylor Pty Ltd v Vicarr Industries Ltd (1977) 137 CLR 228 Applied

AUS FENCE HIRE PTY LTD and BOLDMONT PTY LTD v OWEN THOMAS AND BRETT THOMAS
Q 36 OF 2004

KIEFEL J
BRISBANE
5 MAY 2004

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q36 OF 2004

BETWEEN:

AUS FENCE HIRE PTY LTD (ACN 102 465 467)
FIRST APPLICANT

BOLDMONT PTY LTD (ACN 057 604 690)
SECOND APPLICANT

AND:

OWEN THOMAS
FIRST RESPONDENT

BRETT THOMAS
SECOND RESPONDENT

JUDGE:

KIEFEL J

DATE OF ORDER:

5 MAY 2004

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.Judgment be entered for the applicants against the respondents.

2.Pursuant to s138(1) of the Patents Act1990 (Cth) Australian Innovation Patent No. 2002101002 be revoked.

3.The respondents pay to the applicants their costs of the application, including reserved costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q36 OF 2004

BETWEEN:

AUS FENCE HIRE PTY LTD (ACN 102 465 467)
FIRST APPLICANT

BOLDMONT PTY LTD (ACN 057 604 690)
SECOND APPLICANT

AND:

OWEN THOMAS
FIRST RESPONDENT

BRETT THOMAS
SECOND RESPONDENT

JUDGE:	KIEFEL J
DATE:	5 MAY 2004
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. On 7 April 2004 I made orders that the applicants have judgment against the respondents and that Australian Innovation Patent No. 2002101002 be revoked pursuant to s 138(1) of the Patents Act 1990 (Cth). At that time I said that I would provide short reasons for those orders. Those reasons follow. They are drawn largely from the applicants’ submissions, which I have accepted.

2. The applicants’ statement of claim and affidavits containing the evidence upon which the applicant would rely were served on the first and second respondents on 27 February 2004 and 2 March 2004 respectively.  No appearance was filed by the respondents and they did not appear at the first directions hearing on 19 March 2004.  The motion for judgment was served on the respondents on 26 March 2004 and they did not appear on 7 April 2004.  Pursuant to that motion the applicants applied for judgment against the respondents pursuant to either O 10 r 7(1)(b) or O 11 r 23(1)(b) of the Federal Court Rules.  The latter seems more appropriate.  The former applies to non-compliance with an order of the Court directing a party…