Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Old Digger Pty Ltd (formerly called SDS Digger Tools Pty Ltd) v Azuko Pty Ltd [2002] FCA 1158 PATENTS – Separate questions of infringement of patents in suit and counterclaim for revocation of patents on the ground of invalidity determined after trial and appeals – unsuccessful respondents by notice of motion seek to re-open cross-claim or to file a second cross-claim seeking revocation of patents in suit – allegation that respondents under a misapprehension at trial as to the extent of remedies being sought rejected – order dismissing the cross-claim held to be a final order or judgment – held no power to re-open the cross-claim – held question of revocation on the ground of invalidity res judicata – whether issue estoppel or Anshun estoppel would otherwise apply – notice of motion dismissed.
Federal Court Rules O5, r 9; O 35, r 7
Old Digger Pty Ltd v Azuko Pty Ltd (2000) 51 IPR 43 cited Azuko Pty Ltd v Old Digger Pty Ltd (2001) 52 IPR 75 cited Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 applied Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 cited Bailey v Marinoff (1971) 125 CLR 529 cited Computer Edge Pty Ltd v Apple Computer Inc (1984) 54 ALR 767 discussed National Society for the Distribution of Electricity by Secondary Generators v Gibbs [1900] 2 Ch 280 cited Crayford Freight Services Ltd v Coral Seatel Navigation Co (1998) 82 FCR 328 cited Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 cited Chiron Corporation v Organon Teknika Ltd (No 6) [1994] FSR 448 followed Trawl Industries of Australia Pty Ltd (in liq) v Effem Foods Pty Ltd (1992) 36 FCR 406 cited Brunsden v Humphrey (1884) 14 QBD 141 cited Shoe Machinery Company v Cutlan [1886] 1 Ch 667 followed Chiron Corporation v Organon Teknika Ltd (No 14) [1996] FSR 701 discussed Blair v Curran (1939) 62 CLR 464 cited Henderson v Henderson (1843) 3 Hare 100; 67 ER 313 cited Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287 cited
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