FEDERAL COURT OF AUSTRALIA
Liberation Developments Pty Ltd v Lomax Group Pty Ltd [2019] FCA 1180
File number(s): QUD 117 of 2018 Judge(s): GREENWOOD J Date of judgment: 30 July 2019 Catchwords: PATENTS – consideration of questions of construction of the many integers of the principal claim and the claim as a whole – consideration of “purposive construction” – consideration of the application of the construed claims to the impugned hoarding system – consideration of whether the applicants threatened a person with infringement proceedings for the purposes of ss 128 and 129A of the Patents Act 1990 (Cth) Legislation: Patents Act 1990 (Cth), ss 3, 13, 40, 122, 128, 129A, 131
Competition and Consumer Act 2010 (Cth), Schedule 2, s 18
Cases cited: Australian Steel Co (Operations) Pty Ltd v Steel Foundations Ltd (2003) 58 IPR 69
BLH Engineering and Construction Pty Ltd v Pro 3 Products Pty Ltd (2015) 114 IPR 105
Brian v Ingledew Brown Bennison & Garrett (a firm) [1996] FSR 341
Catnic Components Ltd v Hill & Smith Ltd [1982] RPC 183
CQMS Pty Ltd v Bradken Resources Pty Limited (2016) 120 IPR 44
C & P Development Coy (London) Ltd v Sisabro Novelty Coy Ltd (1953) 70 RPC 277
Damorgold Pty Ltd v Blindware Pty Ltd (2017) 354 ALR 1
JMVB Enterprises Pty Ltd v Camoflag Pty Ltd (2005) 67 IPR 68
Kimberly‑Clark Australia Pty Limited v Arico Trading International Pty Limited (2001) 207 CLR 1
Kirin‑Amgen Inc v Hoechst Marion Roussel Ltd (2004) 64 IPR 444
Lido Manufacturing Co Pty Ltd v Meyers & Leslie Pty Ltd (1964) 5 FLR 443
Luna Advertising Company Ltd v Burnham & Company (1928) 45 RPC 258
Occupational and Medical Innovations Ltd v Retractable Technologies Inc (2007) 73 IPR 312
U & I Global Trading (Australia) Pty Ltd v Tasman‑Warajay Pty Ltd (1995) 60 FCR 26
Willis & Bates Ltd v Tilley Lamp Coy (1943) 61 RPC 8
Date of hearing: 11, 12, 13 June 2018 Date of last submissions: 13 June 2018 Registry: Queensland Division: General Division National Practice Area: Intellectual Property Sub-area: Patents and Associates Statutes Category: Catchwords Number of paragraphs: 173 Counsel for the Applicants: Mr A Franklin SC with Mr D Larish Solicitor for the Applicants: Bennett & Philp Lawyers Counsel for the Respondents: Mr T Cordiner QC with Mr B Gardiner Solicitor for the Respondents: Interface Legal Pty Ltd ORDERS
QUD 117 of 2018 BETWEEN: LIBERATION DEVELOPMENTS PTY LTD ACN 127 681 118 (and another named in the Schedule)
First Applicant
AND: LOMAX GROUP PTY LTD ACN 615 835 848 (and others named in the Schedule)
First Respondent
JUDGE:
GREENWOOD J
DATE OF ORDER:
30 JULY 2019
THE COURT ORDERS THAT:
1.That part of the originating application filed by the applicants related to proceedings for relief against all respondents for contended infringement or authorisation of infringement of Australian Innovation Patent 2013100057, is dismissed.
2.The cross‑claim of the respondent cross‑claimants is dismissed.
3.The costs of and incidental to that part of the proceedings the…
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- AGLC
- Liberation Developments Pty Ltd v Lomax Group Pty Ltd [2019] FCA 1180
- Case
- [2019] FCA 1180
- Decision Date
CaseChat Overview and Summary
The legal issues before the court encompassed the interpretation of the various components of the principal claim and the claim as a whole, as well as the application of the construed claims to the hoarding system at issue. The court also had to determine whether the applicants had threatened the respondents with infringement proceedings, which was relevant under sections 128 and 129A of the Patents Act 1990 (Cth). Justice Edelman considered the principles of purposive construction and the objective meaning of the patent claims in the context of the entire patent specification.
Justice Edelman found that the applicants had not demonstrated that the respondents' hoarding system infringed the patent. The court held that the construction of the patent claims did not support the applicants' contentions and that the respondents' system did not fall within the scope of the claims. The judge also concluded that there was insufficient evidence to establish that the applicants had threatened infringement proceedings, as required by the relevant sections of the Patents Act. Consequently, the applicants' claims were dismissed, and the respondents' cross-claim was also dismissed. The court reserved the question of costs for later determination, directing the parties to file submissions within three weeks.
In summary, the court ruled against the applicants in their bid to enforce their patent rights and dismissed their claims for infringement and authorisation of infringement. The respondents were also successful in having their cross-claim dismissed. The costs associated with the proceedings were reserved for later determination, with the possibility of a hearing if any party wished to be heard on the matter.
Orders
Orders of the court
1. That part of the originating application filed by the applicants related to proceedings for relief against all respondents for contended infringement or authorisation of infringement of Australian Innovation Patent 2013100057, is dismissed.
2. The cross‑claim of the respondent cross‑claimants is dismissed.
3. The costs of and incidental to that part of the proceedings the subject of Order 1 are reserved for later determination.
4. The costs of and incidental to the cross‑claim are reserved for later determination.
5. The parties are directed to file and serve submissions in relation to all questions of costs, within three weeks.
6. The costs reserved by these orders will be determined on the papers unless a party wishes to be heard on any question of costs.
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
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