Bitech Engineering v Garth Living Pty Ltd

In the case of Bitech Engineering v Garth Living Pty Ltd, Bitech Engineering sought to claim damages for patent infringement from Garth Living in relation to electric flame heaters. The Federal Court was required to determine whether Bitech Engineering could claim damages for the importation, sale, and distribution of additional devices which were alleged to infringe the patent, even though these devices were not considered by the Court at the liability stage and were not the subject of any findings of infringement at that stage. Bitech Engineering had specifically identified the articles which allegedly infringed the patent and conducted the trial and subsequent appeal upon the basis that these were the only articles said to have infringed the patent.

The court held that the applicant was not entitled to seek to recover damages in respect of the additional devices. The court found that Bitech Engineering had not reserved the right to enlarge the type of its infringing articles at the damages stage, and that additional infringements not permitted to be litigated at the damages stage. The court also found that the same approach to identifying the alleged infringements sued upon was taken in proceedings NSD 43 of 2007 and NSD 2056 of 2007. The court concluded that the applicant's application for discovery in respect of the additional apparatus be refused and that the applicant pay the costs of the respondent.