FEDERAL COURT OF AUSTRALIA
Davies v Lazer Safe Pty Ltd [2019] FCAFC 65
Appeal from: Davies v Lazer Safe Pty Ltd [2018] FCA 702 File number(s): WAD 251 of 2018 Judge(s): GREENWOOD, WHITE AND BURLEY JJ Date of judgment: 26 April 2019 Catchwords: PATENTS – patent for safety system for use with machinery – construction of claims – appeal against findings of non-infringement – non-infringement findings upheld – cross-appeal dismissed
Legislation: Patents Act 1990 (Cth) Cases cited: Davies v Lazer Safe Pty Ltd [2018] FCA 702
Decor Corporation Pty Ltd v Dart Industries Inc (1988) 13 IPR 385
Fisher & Paykel Healthcare Pty Ltd v Avion Engineering Pty Ltd (1991) 103 ALR 239
Flexible Steel Lacing Co v Beltreco Ltd [2000] FCA 890
Fresenius Medical Care Australia Pty Limited v Gambro Pty Limited [2005] FCAFC 220
Kuru v State of New South Wales [2008] HCA 26; (2008) 236 CLR 1
Martin v Scribal Pty Ltd (1954) 92 CLR 17
Nichia Corporation v Arrow Electronics Australia Pty Ltd [2019] FCAFC 2
Date of hearing: 25 February 2019 Date of last submissions: 1 April 2019 Registry: Western Australia Division: General Division National Practice Area: Intellectual Property Sub-area: Patents and Associated Statutes Category: Catchwords Number of paragraphs: 87 Counsel for the Appellants: Mr M. F. Holler Solicitor for the Appellants: Morgan Alteruthemeyer Counsel for the Respondent: Mr G. Fitzgerald QC with Mr D. W. Thompson Solicitor for the Respondent: Provan Legal Pty Ltd ORDERS
WAD 251 of 2018 BETWEEN: KEVIN STEPHEN DAVIES
First Appellant/First Cross-Respondent
TRICLOPS TECHNOLOGIES PTY LTD
Second Appellant/Second Cross-Respondent
AND: LAZER SAFE PTY LTD
Respondent/Cross-Appellant
JUDGES:
GREENWOOD, WHITE AND BURLEY JJ
DATE OF ORDER:
26 APRIL 2019
THE COURT ORDERS THAT:
1.The appeal and the cross-appeal be dismissed.
2.Within 14 days, the parties are to file and serve any written submissions they wish to make on the question of costs, of no more than 3 pages.
3.Any submissions in answer, of no more than 3 pages, should be filed and served within a further 14 days.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
THE COURT:
1. INTRODUCTION
The appellants, Kevin Stephen Davies and Triclops Technologies Pty Ltd, are respectively the owner and exclusive licensee of Australian Patent No 2003229135 entitled “A Safety System”. They commenced proceedings against the respondent, Lazer Safe Pty Ltd, alleging that its Lazer Safe Systems infringed each of claims 1 – 5, 8, 12, 14, 21, 22, 28-31, 38, 44 and 46 (asserted claims) of the Patent, pursuant to the terms of the Patents Act 1990 (Cth). Those proceedings were dismissed by the learned primary judge in Davies v Lazer Safe Pty Ltd [2018] FCA 702 and the appellants appeal against that decision. In response to the infringement claim, Lazer Safe brought a cross-claim, alleging that the asserted…
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- AGLC
- Davies v Lazer Safe Pty Ltd [2019] FCAFC 65
- Case
- [2019] FCAFC 65
- Decision Date
CaseChat Overview and Summary
The appellants submitted that the primary judge's construction of these integers was incorrect. They argued that the term "image information" in integer (1.5) should be understood to refer broadly to any output from the light receiving means, such as the output from the sensors of a CCD or a camera. They also argued that the term "recognise the presence of" means no more than the ability to identify the existence of a shadowed region, and that the word "obstructions" in this context means any object which blocks light from the light emitter, thereby creating a "shadowed region" on the light receiving means. The Court found that the primary judge's construction of these integers was incorrect and that the appellants' submissions had force.
The Court also considered the question of infringement, which was raised in grounds 7 – 10. However, the Court found that the appellants had not established any error in the primary judge's findings of non-infringement.
The appeal and the cross-appeal were dismissed, and the parties were given the opportunity to file written submissions on the question of costs. The final orders were that the appeal and the cross-appeal be dismissed, and that any written submissions on costs be no more than three pages.
Orders
Orders of the court
1. The appeal and the cross-appeal be dismissed.
2. Within 14 days, the parties are to file and serve any written submissions they wish to make on the question of costs, of no more than 3 pages.
3. Any submissions in answer, of no more than 3 pages, should be filed and served within a further 14 days.
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
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Ratio Decidendi
Legal Principle Established
The central issue in the appeal is whether the learned primary judge erred in his construction of the claims, and in particular in relation to integers (1.5) and (1.6). We turn to that question first, which is raised in grounds 3 – 6, before moving on to consider the question of infringement, which is raised in grounds 7 – 10.3.2 Consideration In relation to integer (1.5), the appellants submit that a “processing and control means arranged to receive image information from the light receiving means” should be understood to refer broadly to the processing and control means receiving any output from the light receiving means, such as the output from the sensors of a CCD or a camera. The term “recognise the presence of” means no more than the ability to identify the existence of a shadowed region which has been “cast by obstructions in the region”. They submit that the word “obstructions” in this context means any object which blocks light from the light emitter, thereby creating a “shadowed region” on the light receiving means. Insofar as the primary judge took a contrary view, the appellants submit that he fell into error. In our view, there is force in the criticisms of this aspect of the learned primary judge’s reasoning. His Honour accepted that “image information” is received from the light receiving means, such as a CCD or a projection screen, and considered that such information is used to “recognise the presence of one or more shadowed regions”. This, he considered, does not mean any information whatsoever about an image, but that “the shape of the obstruction must be capable of being determined and sufficient to be used by the system” (at [229]). The primary judge said, that “recognise” in context (at [230]):...means that the system is not just detecting a shadowed region, but the system recognises, that is, compares the shadowed region detected with what is previously known – the shape of the obstructions. This is consistent with the recitation in the Patent (at p 6 line 23 to p 7 line 14), particularly the comparison of the ‘current image’ with the ‘stored image to determine the presence of any shadows’ (at p 7 lines 9-11). The reference in integer 1.5 to the ‘one or more shadowed regions’ accords with the notion that the system can determine the shape of the obstruction. We respectfully disagree with the learned primary judge’s construction in this respect. No language in claim 1 indicates that the words “image information” and “recognise” are to be understood as inviting a comparison between the detected shadowed region and a previously known shape or obstruction. The words “image information”, “recognise” and “obstruction” are not terms defined in the body of the specification so as to invite that conclusion. The words are of ordinary English. No party submitted that they involve terms of art that warrant, as aids to construction, evidence from a person skilled in the art. Accordingly, this Court on appeal is able to consider the question of construction.