FEDERAL COURT OF AUSTRALIA
VIP Plastic Packaging Pty Ltd v B.M.W. Plastics Pty Ltd [2011] FCA 660
Citation: VIP Plastics Packaging Pty Ltd v B.M.W. Plastics Pty Ltd [2011] FCA 660 Parties: VIP PLASTIC PACKAGING PTY LTD (ACN 095 313 705) v B.M.W. PLASTICS PTY LTD (ACN 006 358 934) File number: VID 680 of 2008 Judge: KENNY J Date of judgment: 10 June 2011 Catchwords: PATENTS – alleged infringement of patent – patent described ‘variable-length dip tube for a fluid transfer container’ – respondent did not dispute manufacture and sale of dip tubes – whether respondent’s product infringing – meaning of ‘lower end portion’ – meaning of ‘loose clearance fit’ – meaning of phrase ‘just below’ – respondent’s defence fails – respondent’s product has all essential integers of relevant claims – infringement established
PATENTS – respondent cross-claimed alleging invalidity – construction of claims – whether patent in suit invalid for want of novelty – whether patent anticipated by earlier ‘Hancock’ patent – no anticipation – lack of novelty not established
PATENTS – whether patent in suit invalid for lack of inventive step – whether patent obvious to a non-inventive worker in the field – no evidence that such a worker faced with ‘buckling’ would as matter of routine have taken steps from prior art to invention as claimed – lack of inventive step not established
PATENTS – whether patent in suit a manner of manufacture within the meaning of section 6 of the Statute of Monopolies – no disclosure in the patent specification that the invention not an alleged manner of new manufacture – not invalid on this ground
PATENTS – whether patent in suit invalid for lack of definition or clarity – whether terms ‘just below the end’ and ‘inhibits bending’ insufficiently clear – purposive approach should be adopted – skilled addressee would find these terms provide a workable standard – terms clear when construed by reference to the specifications of the patents – lack of clarity and definition grounds not made out
EVIDENCE – objection to admissibility of expert evidence – consideration of s 79 Evidence Act 1995 role of expert witness – expert witness lacked relevant qualifications and experience – no relevant specialised knowledge based on relevant training, study or experience – witness had no history of working the field of dip tubes, plastics or related field – evidence largely irrelevant and therefore inadmissible – where admissible, little weight accorded
EVIDENCE – expert witness not in the class of skilled addressee – witness conceded that he was not in a class of people ‘skilled in the art’ of dip tubes – witness unable to give reliable evidence of the state of the common general knowledge of a skilled addressee at priority date – evidence largely irrelevant and therefore inadmissible – where admissible, little weight accorded
EVIDENCE – objection to admissibility that no proper basis for the opinion – evidence largely speculative – to the extent opinion based on specialised knowledge based on training as a mechanical…
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- Case
- [2011] FCA 660
- Decision Date
CaseChat Overview and Summary
The court also examined BMW's cross-claim that the patent was invalid. BMW argued that the patent lacked novelty and was obvious to a non-inventive worker in the field. The court rejected these arguments, finding that the patent was not anticipated by prior art and that it did involve an inventive step. The court also dismissed BMW's argument that the patent was a manner of manufacture and lacked clarity and definition. The court found that the patent was clear when construed by reference to the specifications.
The court also considered objections to the admissibility of expert evidence. BMW objected to the admissibility of evidence from VIP's expert witness, Mr McFadyen, on various grounds. The court rejected these objections and found that Mr McFadyen's evidence was admissible and should be given weight. The court accepted Mr McFadyen's explanation of the patent claims and found that BMW's product infringed the patent.
The court made orders for the parties to file and serve minutes of proposed orders and for BMW to respond if it disagreed with any of VIP's proposed orders. The court found in favour of VIP and ordered that BMW had infringed VIP's patent and that the patent was valid. The court awarded damages and an account of profits to VIP.
Orders
Orders of the court
1. On or before 17 June 2011 the applicant/cross-respondent file and serve a minute of proposed orders that it considers give effect to the reasons for judgment delivered today and are appropriate to be made at this stage of the proceeding.
2. If the respondent/cross-claimant disagrees with any order proposed by the applicant/cross-respondent, then, on or before 21 June 2011, the respondent/cross-claimant file and serve a statement concerning any point of disagreement.
Note:
Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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