Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Kinabalu Investments Pty Ltd v Barron & Rawson Pty Ltd [2008] FCAFC 178
PATENTS – invalidity – lack of novelty – road safety barriers – infringement claim upheld by primary judge – cross claim for invalidity by virtue of lack of novelty upheld – appeal against declaration of invalidity – construction of claims – whether guard member mounted on side walls of at least two barrier elements – no requirement that guard member be secured by a physical connection through side wall – composite beam effect asserted by patentee not a feature required to be disclosed by US patent in order that it anticipate Australian patent.
Patents Act 1990 (Cth) ss 18, 138 Hill v Evans (1862) 4 De GF & J 288; 45 ER 1195 applied Flour Oxidizing Co Ltd v Carr & Co Ltd (1908) 25 RPC 428 applied Bristol‑Myers Squibb Co v FH Faulding & Co Ltd (2000) 97 FCR 524 applied Pfizer Overseas Pharmaceuticals v Eli Lilly & Co (2005) 68 IPR 1 cited Flexible Steel Lacing Co v Beltreco Ltd (2000) 49 IPR 331 applied KINABALU INVESTMENTS PTY LTD (ACN 001 469 718) v BARRON & RAWSON PTY LTD (ACN 000 065 636), ANTHONY J CAREY and WAY TO GO AUSSINDO PTY LTD (ACN 080 761 511)
QUD 63 of 2008
SUNDBERG, EMMETT AND GREENWOOD JJ
31 OCTOBER 2008
BRISBANE
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY QUD 63 of 2008
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN: KINABALU INVESTMENTS PTY LTD (ACN 001 469 718)
Appellant
AND: BARRON & RAWSON PTY LTD (ACN 000 065 636)
First Respondent
ANTHONY J CAREY
Second Respondent
WAY TO GO AUSSINDO PTY LTD (ACN 080 761 511)
Third Respondent
JUDGES: SUNDBERG, EMMETT AND GREENWOOD JJ
DATE OF ORDER: 31 OCTOBER 2008
WHERE MADE: BRISBANE
THE COURT ORDERS THAT:
1. The appeal be dismissed. 2. The appellant pay the respondents' costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA
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