Coretell Pty Ltd v Australian Mud Company Pty Ltd [2017] FCAFC 54

FEDERAL COURT OF AUSTRALIA

Coretell Pty Ltd v Australian Mud Company Pty Ltd [2017] FCAFC 54 Appeal from: Australian Mud Company Pty Ltd v Coretell Pty Ltd (No 4) [2015] FCA 1372 Australian Mud Company Pty Ltd v Coretell Pty Ltd (No 5) [2016] FCA 444

File number: WAD 134 of 2016

Judges: JAGOT, NICHOLAS AND BURLEY JJ

Date of judgment: 3 April 2017

Catchwords: PATENTS – whether patentee entitled to relief for infringement from date of patent or date of grant – consideration of the scheme of the Patents Act 1990 (Cth) and Patents Regulations 1991 (Cth) – purpose of complete specification being open to public inspection – divisional applications filed in respect of standard patent filed as divisional of a provisional patent application – infringement and accessorial liability – innovation patents PATENTS – invalidity – external fair basis and priority date – whether claims of innovation patents fairly based on disclosure in provisional application – whether innovation patents invalid on basis of prior use or prior secret use – meaning of "use" in Patents Act 1990 (Cth) s 18 COSTS – decision of primary judge to award costs on indemnity basis

Legislation: Evidence Act 1995 (Cth) s 191 Federal Court of Australia Act 1976 (Cth) s 43 Patents Act 1990 (Cth) ss 7, 9, 13, 18, 24, 29, 40, 43, 49, 52, 53, 54, 55, 56, 57, 61, 62, 65, 67, 68, 79B, 101A, 101B, 101E, 101F, 120, 122, 129, 129A, 133, 138, 143A, Schedule 1 Patents Regulations 1991 (Cth) regs 2.2, 3.12, 6.3, 13.4 Patents Amendment (Innovation Patents) Bill 2000 (Cth), Revised Explanatory Memorandum