IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2023-404-1074
[2023] NZHC 3692
UNDER
the Patents Act 2013
IN THE MATTER OF
infringement of New Zealand
Patent No. 564309, Patent No. 577678 and Patent No. 711384
BETWEEN
INGURAN, LLC
First plaintiff
AND
CYTONOME/ST, LLC
Second plaintiff
AND
STGENETICS NEW ZEALAND LIMITED
Third plaintiff
AND
CRV LIMITED
First defendant
AND
CRV INTERNATIONAL BV
Second defendant
Continued overleaf
Hearing:
27 and 28 November 2023; 22 December 2023 (teleconference)
Appearances:
J E Hodder KC, M C Sumpter and T F Cleary for plaintiffs G F Arthur KC, JLW Wass and JRE Wach for defendants
Date of judgment:
14 December 2023
Reissued:
22 December 2023
JUDGMENT OF JAGOSE J
This judgment was delivered by me on 14 December 2023 at 11.30am.
Pursuant to Rule 11.5 of the High Court Rules.
………………………… Registrar/Deputy Registrar
INGURAN, LLC v CRV LIMITED [2023] NZHC 3692 [14 December 2023]
AND GENUS ABS (NZ) LIMITED
Third defendant
AND ABS GLOBAL, INC
Fourth defendant
AND GENUS PLC
Fifth defendant
[1] Simplistically, mammalian artificial insemination typically is achieved using straws containing millions of sperm cells harvested from male mammals and deposited in their female counterparts.
[2] As over-simplified, the plaintiffs together produce straws of bull semen, largely sorted into the respective sexes, for sale to farmers for sex-selected herd management. So too do the defendants. At substantive issue in this proceeding is if the defendants are doing so in infringement of the plaintiffs’ New Zealand registered patents for the provision of sex-sorted animal sperm, using technology which sorts the sperm in fluid suspension (flow cytometry) according to its X- or Y-chromosome characteristic.
[3] For my interlocutory decision now is the plaintiffs’ application to restrain the defendants from such production and sale under the patents pending trial, and the defendants’ application the proceeding be dismissed in part and otherwise stayed pending determination if the terms of a settlement agreement between them prohibited its issue.
Background
[4] The first plaintiff (Inguran) is a company incorporated in the United States’ Texas, carrying on business as STgenetics. The second plaintiff (Cytonome) is a company incorporated in the United States’ Massachusetts. The third plaintiff (STgenetics NZ) is a company incorporated in New Zealand. Cytonome and STgenetics NZ respectively are Inguran’s majority- and wholly-owned subsidiaries. For present purposes, I refer to these companies collectively as ST.
[5] ST, meaning ‘Sexing Technologies’, has developed technology to sort mammalian semen cells into predominantly X- or Y-chromosome bearing populations. The sorting is done by trained operators using specialised flow cytometry equipment at bespoke laboratories. Such ‘sexed’ semen then is sold in straws for artificial insemination, for corresponding predominantly male or female offspring as may be sought in herd management.
[6] The first defendant (CRV NZ) is a company incorporated in New Zealand. It is the second defendant’s (CRV International) subsidiary. Again, for present purposes, I refer to these companies collectively as CRV. ST and CRV have a variety of arrangements by which…
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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Inguran, LLC v CRV Ltd [[2023]] NZHC 3692
Case
[2023] NZHC 3692
Decision Date
CaseChat Overview and Summary
In Inguran, LLC v CRV Limited [2023] NZHC 3692, the High Court of New Zealand dealt with an interlocutory application in a patent infringement case involving the production of sex-sorted animal sperm. The plaintiffs, a consortium of companies collectively referred to as ST, sought an interim injunction against the defendants, CRV Limited and related entities, to prevent them from allegedly infringing three of ST's New Zealand patents. The defendants sought dismissal or a stay of the proceedings. The court, Justice Jagose, examined whether ST had a serious question to be tried on the merits, and if so, whether the balance of convenience favoured granting the injunction. The court concluded that ST had a tenable basis for success at trial on the issue of infringement, and that the balance of convenience favoured granting the injunction, particularly given the limited remaining life of the patents. The court also found that New Zealand was the appropriate forum for the proceedings, and that the court should assume jurisdiction over the foreign defendants due to the international nature of the underlying commercial arrangements. The plaintiffs' application for an interim injunction was granted, and the defendants' application for dismissal or stay was dismissed, with leave reserved for a renewed application.