Polwood Pty Ltd v Foxworth Pty Ltd [2008] FCAFC 9

FEDERAL COURT OF AUSTRALIA

Polwood Pty Ltd v Foxworth Pty Ltd [2008] FCAFC 9

INTELLECTUAL PROPERTY - PATENTS – inventorship – at trial two parties claimed sole entitlement to grant of patent – primary judge found joint inventorship – appellant entitled to claims to method and process of invention and respondent entitled to claims to enabling apparatus – primary judge granted liberty to apply to permit joint inventorship to be determined on claim by claim basis – appellant continues to claim sole entitlement – respondent now argues for joint inventorship – appellant claims inventorship in totality of 'inventive concept' in invention – appellant claims contribution of respondent non-inventive, to do with physical working of concept – respondent claims two 'inventive hearts' in application with respondent inventor of one 'heart' being apparatus – both parties were jointly responsible for devising the inventive concept of the patent – respondent did not merely provide skill to implement appellant's concept but contributed inventive skill to invention – claims not considered by primary judge to determine the extent or existence of joint inventorship of subject matter of individual claims

Equity - breach of confidence - confidential information largely conceptual in nature - authorised use involving time energy and inventive skill to produce an 'invention' - assertion by confidant of joint inventorship - proprietary relief in respect of confidant's interest in the invention refused

INTELLECTUAL PROPERTY - COPYRIGHT – consideration of a claim of indirect infringement of copyright by making a version in three dimensions of an apparatus said to be a copy of an earlier apparatus embodying all of the features of a two‑dimensional drawing – consideration of whether the contended copy is a three‑dimensional version of the two‑dimensional drawings in suit – consideration of the extent of any similarities between the features embodied in the three‑dimensional apparatus and those features reflected in the drawings and the intermediate or earlier apparatus said to have been copied – consideration of the evidence going to conscious copying and substantial similarity