Federal Court of Australia
Federal Court of Australia
Fuchs Lubricants (Australasia) Pty Ltd v Quaker Chemical (Australasia) Pty Ltd [2021] FCAFC 65 Appeal from: Quaker Chemical (Australasia) Pty Ltd v Fuchs Lubricants (Australasia) Pty Ltd (No 2) [2020] FCA 306 Quaker Chemical (Australasia) Pty Ltd v Fuchs Lubricants (Australasia) Pty Ltd (No 3) [2020] FCA 515
File number: NSD 556 of 2020
Judgment of: BEACH, MOSHINSKY AND THAWLEY JJ
Date of judgment: 5 May 2021
Catchwords: PATENTS – standard and innovation patents for a method for detecting fluid injection in a patient – whether invalid for lack of novelty – working in public of the invention within the period of 12 months before the priority date – working for the purposes of "reasonable trial" – grace period exception under s 24(1)(a) of the Patents Act 1990 (Cth) – reg 2.2(2)(d) of the Patents Regulations 1991 (Cth) – infringement of patents – indirect infringement – s 117(2)(b) of the Act – application of objective standard – "reason to believe" – whether primary judge applied a subjective test – additional damages for infringement – s 122(1A) of the Act – exercise of discretion – appeal allowed
Legislation: Intellectual Property Laws Amendment (Raising the Bar) Act 2012 (Cth) s 3; Sch 6 items 32, 33 and 133(4) Legislation Act 2003 (Cth) s 13(1)(c) Patents Act 1903 (Cth) s 124 Patents Act 1952 (Cth) s 158 Patents Act 1990 (Cth) ss 7, 9, 18, 24, 117, 122(1A), 228; Sch 1 Patents Bill 1990 (Cth) cll 37 and 38 Intellectual Property Legislation Amendment (Raising the Bar) Regulation 2013 (No 1) (Cth) reg 4; Sch 6 item 7 Patents Amendment Regulations 2002 (No 1) (Cth) Sch 1 items 2 to 6 Patents Regulations 1991 (Cth) regs 2.2, 2.3, 23.36(4) item 3 Patents and Designs HL Bill (1949) Patents Act 1949 (UK) s 51 Patents Act 1977 (UK) s 60 Commonwealth of Australia, Report of the Committee Appointed by the Attorney-General of the Commonwealth to Consider what Alterations are Desirable in the Patent Law of the Commonwealth (1952) Explanatory Memorandum, Intellectual Property Laws Amendment (Raising the Bar) Bill 2011 (Cth) Explanatory Memorandum, Patents Bill 1990 (Cth) HL Deb 16 May 1949, vol 162, cols 651 to 719 HL Deb 30 May 1949, vol 162, cols 1203 to 1233
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