Australian Mud Company Pty Ltd v Globaltech Corporation Pty Ltd (No 5)

In the case of Australian Mud Company Pty Ltd v Globaltech Corporation Pty Ltd, the parties were engaged in a dispute over patent infringement. The applicants, Australian Mud Company Pty Ltd, alleged that Globaltech Corporation Pty Ltd had infringed their patent and sought both damages and an account of profits as relief. The applicants elected to claim damages for the use of Orifinder Tools in Australia and an account of profits for the export of Orifinder Tools from Australia. The Federal Court was required to determine whether this "split" election was valid and whether the applicable provisions of the Patents Act 1990 (Cth) allowed for such an approach. The court found that the "split" election was valid as the right to elect arose in relation to each and every infringement.

The court considered several legal issues, including the appropriate methodology for calculating damages, whether a discount should be applied due to contingencies identified by the respondents, and the threshold for triggering the manufacture of additional ACT Tools. It also examined the inclusion of optional components in the cost of manufacturing ACT Tools and the treatment of 80 converted tools in the lost profits claim. Furthermore, the court considered whether the manufacture and supply of Orifinder v3B Tools in 2012 constituted lost opportunities.

The court determined that the applicants' election was valid, and damages based on Reflex's lost profits should be discounted by 3%. It set the appropriate utilisation rate of Reflex's fleet at 57.5% and the cost of manufacturing an ACT Tool at $2,233 per tool or $4,466 per kit. The claim regarding the additional 80 tools was rejected, while the claim regarding Orifinder v3B Tools was upheld. The losses made by Globaltech in certain periods were excluded from the profit calculations, and the profits earned in Laos, Indonesia, and New Zealand were included. The court also ruled that Globaltech's losses should be excluded from the calculation of profits for the purposes of the account of profits.

The proceeding was adjourned to a later date to allow for the making of final orders. The parties were also invited to provide input on any other outstanding issues. The entry of orders was governed by Rule 39.32 of the Federal Court Rules 2011.