Multigate Medical Devices Pty Ltd v B Braun Melsungen AG (No 2) [2016] FCAFC 41

FEDERAL COURT OF AUSTRALIA

Multigate Medical Devices Pty Ltd v B Braun Melsungen AG (No 2) [2016] FCAFC 41 Appeal from: B Braun Melsungen AG v Multigate Medical Devices Pty Ltd [2014] FCA 1110

File numbers: VID 681 of 2014 VID 693 of 2014

Judges: BENNETT, YATES AND BEACH JJ

Date of judgment: 16 March 2016

Date of hearing: Determined on the papers

Date of last submissions: 10 March 2016

Registry: Victoria

Division: General Division

National Practice Area: Intellectual Property

Sub-area: Patents and Associated Statutes

Category: No Catchwords

Number of paragraphs: 10

Counsel for the Appellant: Ms J Baird SC, Ms H M J Rofe QC and Ms C I Cunliffe

Solicitor for the Appellant: Chrysiliou Lawyers

Counsel for the Respondents: Mr D Shavin QC and Mr E J C Heerey SC

Solicitor for the Respondents: Davies Collison Cave Law

ORDERS VID 681 of 2014

VID 693 of 2014

BETWEEN: MULTIGATE MEDICAL DEVICES PTY LTD (ACN 132 290 058) Appellant

AND: B BRAUN MELSUNGEN AG First Respondent

B BRAUN AUSTRALIA PTY LTD (ACN 002 945 155) Second Respondent

JUDGES: BENNETT, YATES AND BEACH JJ DATE OF ORDER: 16 MARCH 2016

THE COURT ORDERS THAT:

1. Paragraph 1 of the Order of Pagone J made 28 October 2014 in the proceeding below be vacated. 2. Paragraph 3 of the Order of Pagone J made 28 October 2014 in the proceeding below be varied to read: Orders the Respondent be restrained from, whether by its director, servants, agents or howsoever otherwise, until 18 August 2018 or any earlier expiry of both of the 327 Patent and the 577 Patent, from importing, offering for sale, selling and/or keeping for the purpose of offering for sale or selling, or supplying, the Multigate Products, or any other products within the scope of claim 1 of the 327 Patent or any of claims 1 to 6 of the 577 Patent (Infringing Products), or authorising any such conduct. 3. Paragraphs 5 and 8 of the Order of Pagone J made 28 October 2014 in the proceeding below be vacated. 4. Paragraph 4 of the Order of the Full Court made 3 March 2016 be vacated. 5. The appellant pay 70% of the respondents' taxed or agreed costs of and incidental to each of appeal proceedings VID 681 and 693 of 2014 including all reserved costs. 6. The appellant pay 70% of the respondents' taxed or agreed costs of and incidental to the proceeding below including all reserved costs. 7. The matter be remitted to the trial judge for further directions with regard to the respondents' claims for an assessment of damages or an account of profits. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.