Kimberley-Clark Australia Pty Ltd v Arico Trading International Pty Ltd & Ors [1995] FCA 1101

CATCHWORDS PATENTS - Infringement - interlocutory relief - whether a serious issue of infringement to be tried - whether a serious issue of validity of the patent to be tried - whether the balance of convenience favours the granting of interlocutory relief - no question of principle involved. KIMBERLEY-CLARK AUSTRALIA PTY LIMITED v ARICO TRADING INTERNATIONAL PTY LIMITED, MR ARIE KLIGER, FRANCISCO MARTIN OTERO T/AS KOALA NAPPY EXPRESS No. NG 861 of 1995 FOSTER J 30 NOVEMBER 1995 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES DISTRICT REGISTRY) No. NG 861 of 1995 ) GENERAL DIVISION ) BETWEEN: KIMBERLEY-CLARK AUSTRALIA PTY LIMITED Applicant

AND: ARICO TRADING INTERNATIONAL PTY LIMITED First Respondent MR ARIE KLIGER Second Respondent FRANCISCO MARTIN OTERO T/AS KOALA NAPPY EXPRESS Third Respondent JUDGE MAKING ORDERS: FOSTER J DATE: 30 NOVEMBER 1995 PLACE: SYDNEY MINUTE OF ORDERS

THE COURT ORDERS THAT:

1. The application for interlocutory relief be dismissed.

2. Costs be the respondents' costs in the cause.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES DISTRICT REGISTRY) No. NG 861 of 1995 ) GENERAL DIVISION ) BETWEEN: KIMBERLEY-CLARK AUSTRALIA PTY LIMITED Applicant

AND: ARICO TRADING INTERNATIONAL PTY LIMITED First Respondent MR ARIE KLIGER Second Respondent FRANCISCO MARTIN OTERO T/AS KOALA NAPPY EXPRESS Third Respondent CORAM: FOSTER J DATE: 30 NOVEMBER 1995 PLACE: SYDNEY REASONS FOR JUDGMENT (Extempore) HIS HONOUR: I have been greatly assisted by the careful arguments of counsel in this matter and the comprehensive nature of the material that has been placed before me. The applicant seeks an interlocutory injunction restraining the respondents from importing, selling or otherwise disposing of, or offering to sell or otherwise dispose of certain disposable nappies which the respondents are currently selling in the market in Australia. It is alleged by the applicant that the respondents, by so doing, are infringing a patent held by the applicant in respect of nappies of that type. The patent in question describes the nappies as being a disposable diaper with elasticised leg openings. The summary of the invention portion of the patent reads as follows:- "According to this invention an elastic legged unitary disposable diaper is provided which has an elasticized flap extending inwardly from each side of the diaper and extending its entire length. This flap has elasticization means near the inner most portion, so that when the diaper is worn, the flap tends to form a second inwardly facing barrier, particularly adapted to contain diarrhetic bowel movements."