Gearhart United Pty Ltd v Omni Oil Technologies (Asia) SDN BHD (No 2)

Gearhart United Pty Ltd (the applicant) brought a proceeding against Omni Oil Technologies (Asia) SDN BHD (the respondents) in the Federal Court of Australia, seeking to enforce a patent against the respondents for infringement. The applicant alleged that the respondents were making, using, selling, offering to sell, importing or keeping for sale or use a product that infringed the applicant's patent. The respondents contested the applicant's claims and counterclaimed for revocation of the patent. The court was required to decide whether the applicant was entitled to an interlocutory injunction to prevent the respondents from continuing to infringe the patent, and whether the applicant was entitled to an interlocutory declaration that the respondents had infringed the patent. The court also needed to determine whether the applicant was entitled to an interlocutory declaration that the patent was valid and enforceable.

The court held that the applicant was not entitled to an interlocutory injunction because the applicant had not established that it was likely to succeed at trial, that it would suffer irreparable loss if the injunction was not granted, or that the balance of convenience favoured the grant of the injunction. The court held that the applicant was also not entitled to an interlocutory declaration that the respondents had infringed the patent because the applicant had not established that it was likely to succeed at trial. The court held that the applicant was not entitled to an interlocutory declaration that the patent was valid and enforceable because the respondents had raised a bona fide and reasonably arguable defence to the applicant's claims. The court held that the applicant had failed to establish that the respondents' counterclaim for revocation of the patent was bound to fail. The court held that the applicant should pay the respondents' costs of the application if a proceeding was not brought by the applicants for patent infringement within two months. If such a proceeding was brought, the costs of this application shall be costs in the cause in that proceeding.