Bitech Engineering v Garth Living Pty Ltd

Bitech Engineering, a patentee, initiated proceedings against Garth Living Pty Ltd for patent infringement in the Federal Court of Australia. The dispute centred on the exploitation of a patented invention related to heating appliances. Bitech had manufactured and sold these appliances and sought damages as the form of pecuniary relief for the alleged infringement. The court was tasked with applying relevant legal principles to determine the appropriate damages, specifically addressing the method for calculating royalties for sales that Bitech would not have made.

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.