FEDERAL COURT OF AUSTRALIA
Bitech Engineering v Garth Living Pty Ltd [2013] FCA 822
Citation: Bitech Engineering v Garth Living Pty Ltd [2013] FCA 822 Parties: BITECH ENGINEERING v GARTH LIVING PTY LTD (ACN 111 145 432); BITECH ENGINEERING v BUNNINGS GROUP LIMITED (ACN 08 672 179) File numbers: NSD 1681 of 2006
NSD 43 of 2007Judge: FOSTER J Date of judgment: 14 August 2013 Catchwords: PATENTS – patentee who has exploited the invention in the patent by manufacturing and selling heating appliances elected to recover damages as the form of pecuniary relief which it intended to pursue for infringement of the patent – relevant principles discussed – application of the relevant principles considered Legislation: Patents Act 1990 (Cth), s 122 Cases cited: Bitech Engineering v Garth Living Pty Ltd (2009) 84 IPR 78 related
Bitech Engineering v Garth Living Pty Ltd (2010) 86 IPR 468 related
Bitech Engineering v Garth Living Pty Ltd (No 2) [2011] FCA 526 related
Advanced Building Systems Pty Ltd v Ramset Fasteners (Aust) Pty Ltd(2001) 52 IPR 305 cited
Catnic Components Ltd v Hill & Smith Ltd [1983] FSR 512 cited
General Tire and Rubber Co v Firestone Tyre & Rubber Co Ltd [1976] RPC 197 applied
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 cited
Pearce v Paul Kingston Pty Ltd (1992) 25 IPR 591applied
Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 citedDate of hearing: 23–27 July 2012 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 93 Counsel for the Applicant: Mr C Dimitriadis and Mr PA Maddigan Solicitor for the Applicant: DLA Piper Australia Counsel for the Respondents: Ms JE Rawlings Solicitor for the Respondents: Eales & Mackenzie Melbourne
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1681 of 2006
BETWEEN: BITECH ENGINEERING
Applicant
AND: GARTH LIVING PTY LTD (ACN 111 145 432)
Respondent
JUDGE:
FOSTER J
DATE OF ORDER:
14 AUGUST 2013
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.By 23 August 2013, the applicant’s expert accountant, Martin Paul Langridge, of Deloitte, file and serve a supplementary report verified by affidavit in which he sets out the calculations called for by the Court’s approach to the assessment of damages explained at [75]–[80] of Reasons for Judgment of Foster J published this day (including interest calculated up to and including 30 August 2013).
2.By 26 August 2013, the respondents file and serve a Written Submission of no more than three (3) pages in length in which they identify and explain any errors in the calculations performed by Mr Langridge.
3.Thereafter, the form of final orders to be made be determined on the papers.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 43 of 2007
BETWEEN: BITECH ENGINEERING
ApplicantAND: BUNNINGS GROUP LIMITED (ACN 008 672 179)
Respondent
JUDGE:
FOSTER J
DATE OF ORDER:
14…
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- AGLC
- Bitech Engineering v Garth Living Pty Ltd [2013] FCA 822
- Case
- [2013] FCA 822
- Decision Date
CaseChat Overview and Summary
The legal issues the court needed to decide included the proper application of the principles governing the assessment of damages for patent infringement in cases where the patentee has commercially exploited the patented invention. The court considered whether royalties should be included in the damages for sales that Bitech would not have made. The court ultimately concluded that it could not sensibly determine an appropriate rate of royalty for these sales, leading to a decision to exclude any royalties from the damages award for those sales.
In the decision, the court declined to incorporate any royalty in respect of the sales that Bitech would not have made. The court found that Bitech had had substantial success in its damages case and indicated that costs should follow the event. The court ordered Bitech’s expert accountant to file a supplementary report detailing the calculations for the damages assessment, including interest. The respondents were also directed to submit a written response identifying and explaining any errors in the expert’s calculations. The final form of the orders was to be determined on the papers, with specific timelines provided for the submission of reports and written submissions.
The final orders included specific deadlines for the submission of a supplementary report by Bitech’s expert and a written response by the respondents. The court indicated that the form of the final orders would be determined on the papers, with a focus on quantifying Bitech’s damages and addressing any errors identified by the respondents. The costs of the damages part of the proceedings were to be awarded to Bitech, subject to any prior orders for costs.
Orders
Orders of the court
1. By 23 August 2013, the applicant’s expert accountant, Martin Paul Langridge, of Deloitte, file and serve a supplementary report verified by affidavit in which he sets out the calculations called for by the Court’s approach to the assessment of damages explained at [75]–[80] of Reasons for Judgment of Foster J published this day (including interest calculated up to and including 30 August 2013).
2. By 26 August 2013, the respondents file and serve a Written Submission of no more than three (3) pages in length in which they identify and explain any errors in the calculations performed by Mr Langridge.
3. Thereafter, the form of final orders to be made be determined on the papers.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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