Doug Andrews Heating and Ventilation Limited v Dil - [2013] NZHC 3333

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2009-404-4759 [2013] NZHC 3333

UNDER THE PATENTS ACT 1953

BETWEEN DOUG ANDREWS HEATING AND VENTILATION LIMITED AND MULTI KC LIMITED
Plaintiffs

ANDWAYNE JAMES DIL First Defendant

ANDGARY ROY MITCHELL Second Defendant

ANDG & W IMPORTS LIMITED Third Defendant

BETWEEN G & W IMPORTS LIMITED Counterclaim Plaintiff

ANDDOUG ANDREWS HEATING AND VENTILATION LIMITED AND MULTI KC LIMITED
First Counterclaim Defendants

ANDDOUG RICHARD ANDREWS Second Counterclaim Defendant

Hearing: 7-11 and 14, 15 and 18 October 2013

Appearances: C L Elliott QC and A J Pietras for plaintiffs/counterclaim defendants
D L Marriott and C M Fry for defendants/counterclaim plaintiffs

Judgment: 12 December 2013

DOUG ANDREWS HEATING AND VENTILATION LIMITED AND MULTI KC LIMITED v WAYNE JAMES DIL [2013] NZHC 3333 [12 December 2013]

JUDGMENT OF ALLAN J

In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of 4.30 pm on Thursday 12 December 2013.

Solicitors:
A J Pietras & Co Ltd, Lower Hutt
A J Park, Auckland

Index

Paragraph

Introduction 001

Background 005

Construction principles 023

The plaintiffs’ patent 027

Construction of the patent 033

The defendants’ argument 033

The plaintiffs’ argument 044

Discussion 051

Infringement 058

Counterclaims 069

Want of novelty 073

The Hartwell cooker 084

The Richardson cooker 112

The Hakaraia cooker 124

Mr Dil’s cooker 130

Conclusion 138

Obviousness 140

Claim for groundless threats of infringement proceeding 169

Costs 192

Leave 207

Introduction

[1] The plaintiffs sue for infringement of their New Zealand Patent 332466, for portable hangi cookers. Doug Andrews Heating and Ventilation Limited (Doug Andrews) is the registered proprietor of the patent. Multi KC Limited (Multi KC) has been its exclusive licensee since it was incorporated in 2004.

[2] The plaintiffs allege that since 2008, the defendants have infringed the patent by manufacturing, importing, offering for sale, selling, promoting and using portable hangi cookers branded UFO.

[3] Messrs Dil and Mitchell are directors of the third defendant, G & W Imports Limited (G & W). The plaintiffs claim that they are equally liable with G & W for the pleaded infringements. They seek a permanent injunction against each defendant, together with an order for delivery up of infringing copies and damages in excess of $1.2 million.

[4] For their part, the defendants deny any infringement. They also seek an inquiry as to damages in respect of allegedly unjustified threats of patent infringement proceedings. Further, and by way of counterclaim, the defendants seek an order revoking the plaintiffs’ patent. They say the claims in the patent lack novelty or are obvious or both.

Background

[5] Mr Andrews commenced an apprenticeship in sheet metalwork in Christchurch in 1976. The apprenticeship involved experience in constructing heating and ventilation systems. Between then and 1987 he worked as a sheet metal engineer for several companies in and about Christchurch. Moving to Whangarei in
1987, he continued in that line of work, but in 1992 he decided to go into business for himself, starting out as a…

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: [2013] NZHC 3333
Decision Date: 12 December 2013

CaseChat Overview and Summary

Doug Andrews Heating and Ventilation Limited and Multi KC Limited sued for patent infringement. The plaintiffs Doug Andrews Heating and Ventilation Limited and Multi KC Limited sued the defendants for infringement of their New Zealand Patent 332466, for portable hangi cookers. The defendants denied any infringement and sought an order revoking the plaintiffs’ patent on the ground of want of novelty and obviousness. The defendants also sought an order for damages under s 74 of the Patents Act 1953 for groundless threats of patent infringement proceedings. The court held that the defendants had failed to establish that the plaintiffs’ patent was invalid on the grounds of lack of novelty or obviousness. The court held that the defendants’ counterclaim for groundless threats of infringement proceedings was also unsuccessful. The court held that the plaintiffs were entitled to costs on a Band 2B basis against the defendants in respect of the plaintiffs’ claim. The defendants were entitled to costs on a Band 2B basis against the counterclaim defendants in respect of the counterclaim. The court reserved leave generally to the parties to make such further application by memorandum as may be appropriate.

Orders