Hood v Down Under Enterprises International Pty Limited [2022] FCAFC 69

FEDERAL COURT OF AUSTRALIA

Hood v Down Under Enterprises International Pty Limited [2022] FCAFC 69 Appeal from: Hood v Bush Pharmacy Pty Ltd [2020] FCA 1686 Hood v Bush Pharmacy Pty Ltd (No 2) [2021] FCA 138

File numbers: NSD 265 of 2021 NSD 266 of 2021 NSD 267 of 2021

Judgment of: YATES, MOSHINSKY AND ROFE JJ

Date of judgment: 4 May 2022

Catchwords: PATENTS – alleged infringement by supply of products – s 117 of the Patents Act 1990 (Cth) – staple commercial product – whether essential oil derived from the shrub Kunzea ambigua was a staple commercial product – where the primary judge found that the oil was a staple commercial product – whether the primary judge erred in so finding – held: no error in primary judge's conclusion PATENTS – inventive step – method of treatment claims – where primary judge found that the claims did not lack an inventive step – whether the primary judge erred in so finding – held: no error in primary judge's conclusion CONSUMER LAW – misleading or deceptive conduct – where the respondent's website conveyed that the goods offered for sale were registered or listed on the Australian Register of Therapeutic Goods – where the website was not owned or maintained by the respondent – whether the primary judge erred in concluding that the respondent had engaged in misleading or deceptive conduct – held: primary judge erred PRACTICE AND PROCEDURE – costs – where the primary judge ordered each respondent to pay a fixed portion of the applicant's costs of the cross-claims – whether the primary judge erred in making such a costs order – held: no error in primary judge's costs order