Doug Andrews Heating and Ventilation Limited v Dil

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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…

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Details
Case
[2013] NZHC 3333
Decision Date

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

Orders of the court

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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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