Mycogen Plant Science Inc v Monsanto Australia Ltd [2001] FCA 143

FEDERAL COURT OF AUSTRALIA

Mycogen Plant Science Inc v Monsanto Australia Ltd [2001] FCA 143

INTELLECTUAL PROPERTY – Patents – whether further and better particulars of infringement should be directed Federal Court Rules O 12, r 5 General Clutch Corporation v Sbriggs Pty Ltd (1997) 38 IPR 359 referred NV Philips Gloeilampenfabrieken v Mirabella International Pty Ltd (1993) 26 IPR 513 referred Abbott Laboratories v Corbridge Group Pty Ltd [2000] FCA 1713 referred Decor Corporation Pty Ltd v Dart Industries Inc (1988) 13 IPR 385 referred Caterpillar Inc v Sun Forward Pty Ltd (1996) 36 IPR 411 referred Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388 referred MYCOGEN PLANT SCIENCE INC v MONSANTO AUSTRALIA LTD & ANOR VG 746 of 1999 KENNY J MELBOURNE 26 FEBRUARY 2001

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 746 OF 1999

BETWEEN: MYCOGEN PLANT SCIENCE, INC

Applicant/Cross-Respondent

AND: MONSANTO AUSTRALIA LIMITED (ACN 006 725 560)

First Respondent/First Cross-Claimant

DELTAPINE AUSTRALIA PTY LTD (ACN 051 082 958)

Second Respondent/Second Cross-Claimant

JUDGE: KENNY J

DATE OF ORDER: 26 FEBRUARY 2001

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

(1) On or before 30 April 2001, the applicant file and serve a statement of the facts relied on by it to show that when the respondents' gene sequence (or sequences) is (or are) compared with claim 1 of the Second Patent, infringement is shown, including an account of the basis for comparative measurement and how that measurement is made or calculated. (2) On or before 29 June 2001, each of the respondents file and serve a statement of the facts relied on by it to show that the said gene sequence (or sequences) do not infringe claim 1 of the Second Patent, including an account of the basis for comparative measurement and how that measurement is made or calculated. (3) The motions, notices of which are dated 27 September 2000 and 1 November 2000 respectively, be otherwise dismissed. (4) The costs of the said motions be the respondents' costs in the cause. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.