Martin Engineering Company & Anor v Matflo Engineering Pty Ltd & Ors [1987] FCA 579

JUDGMENT No. 511/61.

CATCHWORDS PATENTS - Discretion to admit evidence under s.3l - Principles applicable to the exercise of the discretion - Novelty - Obviousness - Infringement - Principles governing the grant of

interlocutary relief in respect of infringement of a patent -

Modification of apparatus held insufficient to avoid infringement.

Patents Act 1952, s.31l

MARTIN ENGINEERING COMPANY & ANOR. -V- MATFLO ENGINEERING PTY LIMITED & ORS.

NSW G.427 of 1987

Burchett J. Sydney 29 October 1987

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

BURCHETT J. This

to restrain alleged

hearing of proceedings brought by the applicants,

No. G.427 of 1987

BETWEEN:

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REASONS FOR JUDGMENT

MARTIN ENGINEERING COMPANY

First Applicant

ENGINEERING SERVICES AND SUPPLIES PTY LIMITED

Second Applicant

MATFLO ENGINEERING PTY LIMITED

First Respondent

NICARO HOLDINGS PTY LIMITED

Second Respondent

RICHARD COUPER

Third Respondent

is an application for an interlocutory injunction

infringements of patent pending the final

an United

2.

States corporation and the Australian exclusive licencee of its patent rights, against the respondents. The application was filed on 1 September 1987 under the jurisdiction conferred on

this Court by the Jurisdiction of Courts (Miscellaneous

Amendments) Act 1987.

I have not been asked to grant interlocutory relief against the third respondent, who has not personally made or sold the allegedly infringing items, while the respondent Matflo Engineering Pty Limited has, on the evidence, for some time ceased to engage in any such manufacture or sale. Mr. Couper, as a director, gave evidence that he was prepared to undertake to the Court that the items known as the Matflo components would not be sold until the determination of the proceedings. In these circumstances, the applicants sought interlocutory relief only against the respondent Nicaro Holdings Pty Limited, which, it was admitted, intended to manufacture and market an altered version of the Matflo components, asserted by the applicants, and denied