Doug Andrews Heating and Ventilation Limited v Dil - [2015] NZCA 122

IN THE COURT OF APPEAL OF NEW ZEALAND

CA5/2014
[2015] NZCA 122

BETWEEN

DOUG ANDREWS HEATING AND VENTILATION LIMITED AND MULTI KC LIMITED
Appellants

AND

WAYNE JAMES DIL
First Respondent

GARY ROY MITCHELL
Second Respondent

G & W IMPORTS LIMITED
Third Respondent

Hearing:	11 March 2015
Court:	Harrison, Wild and Miller JJ
Counsel:	A J Pietras for Appellants D L Marriott and C Fry for Respondents
Judgment:	20 April 2015 at 11.00 am

JUDGMENT OF THE COURT

AAppeal dismissed.
BCross-appeal dismissed.
CCosts to lie where they fall.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

Introduction

Doug Andrews Heating and Ventilation Ltd (“Andrews”) owns NZ patent
[1]We need not distinguish between the appellants, who are related parties.
No 332466, for portable hangi cookers, with the priority date of 21 October 1998. Its exclusive licensee, Multi KC Ltd, markets a portable two-tier cooker called the Multi Kai Cooker, which is protected by the patent.[1] The cooker is in two parts or tiers which are interengageable via a swage and sleeve arrangement. The lower part comprises a heat source and hot plate, and the upper part comprises a cooking chamber or food housing designed to hold mesh baskets. The user assembles the cooker for use and disassembles it for cleaning and transport.
The third respondent, G & W Imports Ltd (“GWI”),[2] markets a portable cooker called the UFO cooker which comes in two variants, single-tier and two-tier. The two-tier cooker is the subject of the litigation. It comprises interengageable parts connected via a swage and sleeve arrangement. The lower part comprises a heat source, hot plate and cooking chamber. The upper part forms an extension to the cooking chamber.
[2]The first and second respondents are the directors of G & W Imports.
Andrews brought infringement proceedings in July 2009, under the Patents Act 1953 (the Act).[3] It originally pleaded that both the single and two-tier UFO cookers infringed the patent, but after some considerable time – in March 2012 – it confined the claim to the two-tier cooker, having conceded that single-tier cookers existed before the priority date. GWI met the claim with an affirmative defence and counterclaim in which it pleaded invalidity for obviousness and want of novelty at the priority date.
[3]That Act continues to apply in this appeal under the transitional provision of s 260 of the Patents Act 2013.
The hearing was held in October 2013 before Allan J in the High Court at Auckland. The Judge dismissed the claim, holding that on its true construction the patent did not reach the UFO cooker.[4] He also dismissed the counterclaim, holding that the patent protected a novel and truly inventive step. He awarded costs against Andrews on the claim and GWI on the counterclaim. From this judgment Andrews appeals and GWI cross-appeals.

The background

[4]Doug Andrews Heating and Ventilation Ltd v G & W Imports Ltd [2013] NZHC 3333 [High Court judgment].

The appeal turns on the interpretation of the Andrews patent. The patent comprises 20 claims,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NZCA 122
Decision Date: 20 April 2015 at 11.00 am

CaseChat Overview and Summary

Doug Andrews Heating and Ventilation Limited ("Andrews") owns a patent for a portable hangi cooker, with the priority date of 21 October 1998. Its exclusive licensee, Multi KC Ltd, markets a portable two-tier cooker called the Multi Kai Cooker. G & W Imports Ltd markets a portable cooker called the UFO cooker which comes in two variants, single-tier and two-tier. Andrews brought infringement proceedings in July 2009, under the Patents Act 1953 (the Act). It originally pleaded that both the single and two-tier UFO cookers infringed the patent, but after some considerable time – in March 2012 – it confined the claim to the two-tier cooker, having conceded that single-tier cookers existed before the priority date. G & W Imports met the claim with an affirmative defence and counterclaim in which it pleaded invalidity for obviousness and want of novelty at the priority date. The appeal turns on the interpretation of the Andrews patent and the validity of the patent. The appeal and cross-appeal are both dismissed. Costs in this Court will lie where they fall.

Orders