Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Gambro Pty Ltd v Fresenius Medical Care Australia Pty Ltd [2001] FCA 235
PRACTICE AND PROCEDURE - patents - discovery in revocation proceedings - general principles - discovery in relation to documents produced after the priority date - discovery in relation to documents relating to creating the invention
Federal Court Rules O 15 Practice Note 14 The Wellcome Foundation Limited v VR Laboratories (Aust) Pty Ltd (1981) 148 CLR 262 applied Lubrizol Corp Inc v Imperial Chemical Industries plc [2000] FCA 1464 cited F Hoffman-La Roche A G v Chiron Corporation (2000) 47 IPR 516 applied Vickers plc v Horsell Graphic Industries Ltd [1988] RPC 421 applied GAMBRO PTY LIMITED AND GAMBRO AB v FRESENIUS MEDICAL CARE AUSTRALIA PTY LIMITED, FRESENIUS MEDICAL CARE AUSTRALIA PTY LIMITED (CROSS-CLAIMANT), GAMBRO AB (FIRST CROSS RESPONDENT) AND GAMBRO PTY LIMITED (SECOND CROSS RESPONDENT) NG 474 OF 1997 TAMBERLIN J SYDNEY 12 MARCH 2001
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY NG 474 OF 1997
BETWEEN: GAMBRO PTY LIMITED
FIRST APPLICANT
GAMBRO AB
SECOND APPLICANT
AND: FRESENIUS MEDICAL CARE AUSTRALIA PTY LIMITED
RESPONDENT
FRESENIUS MEDICAL CARE AUSTRALIA PTY LIMITED CROSS-CLAIMANT
GAMBRO AB
FIRST CROSS-RESPONDENT
GAMBRO PTY LIMITED
SECOND CROSS RESPONDENT
JUDGE: TAMBERLIN J
DATE OF ORDER: 12 MARCH 2001
WHERE MADE: SYDNEY
THE COURT ORDERS THAT: 1. The following categories of discovery be made: Category 1 All documents brought into existence before the priority date which record, constitute or refer to any research or studies carried out before that date in relation to: (a) preparation of dialysis fluids (in particular, dissolving of hardly soluble bicarbonate into a highly concentrated liquid); (b) chemical stability of dialysis fluids (in particular, shelf life of the liquid concentrate, CO2 loss, precipitation); (c) sterility of dialysis fluids (in particular, bacterial growth in the liquid concentrate and connecting tubes which may give rise to endotoxins crossing the dialysis membrane and unauthorised use); and (d) transport, handling, storage and disposal of dialysis fluids and containers. to the extent that such research or studies were carried out in the course of making the invention claimed. Category 6 All layouts, flowcharts and service manuals relating to dialysis machines or systems manufactured by the First Applicant or any licensee or any related Body Corporate of the First Applicant and sold prior to the priority dates which were themselves published before the priority date. Category 7 All documents concerning any test performed by, at the request of, or on behalf of the Applicants to evaluate or determine the validity, enforceability or infringement by anyone of the Patent. 2. Cost of this application are reserved. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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