Cook Incorporated v World Medical Manufacturing Corporation [2003] FCA 127

FEDERAL COURT OF AUSTRALIA

Cook Incorporated v World Medical Manufacturing Corporation [2003] FCA 127 INTELLECTUAL PROPERTY – patents – cross‑claim seeking revocation on grounds of invalidity – motion to strike out parts of cross‑claim on grounds of insufficient expert evidence‑in‑chief – whether cross‑claimant may rely on anticipation of evidence to be obtained in cross‑examination – prejudice – whether expert evidence required PRACTICE AND PROCEDURE – summary judgment – case management – orders given for the preparation, filing and service of evidence‑in‑chief – incomplete evidence produced – whether it is permitted to mount a case in anticipation of producing evidence during the cross‑examination of witnesses – whether claim or cause of action should be dismissed

Patents Act 1990 (Cth): s 18(1), 138(3)(d) Federal Court Rules: O 11 r 16, O 20 r 2

Nicaro Holdings Pty Ltd v Martin Engineering Co (1990) 91 ALR 513, considered Minnesota Mining & Manufacturing Company v Tyco Electronics Pty Ltd [2002] FCAFC 315; 2002 AIPC 91‑823, considered Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388, considered Caterpillar Inc v Sun Forward Pty Ltd (1996) 36 IPR 411, referred to Firebelt Pty Ltd v Brambles Australia Limited (2002) 188 ALR 280, referred to The General Tire & Rubber Company v The Firestone Tyre and Rubber Company Limited [1972] RPC 457, referred to Minnesota Mining & Manufacturing Co & 3M Australia Pty Ltd v Beiersdorf (Australia) Ltd (1980) 144 CLR 253, referred to COOK INCORPORATED v WORLD MEDICAL MANUFACTURING CORPORATION V 56 of 1999 GOLDBERG J 28 FEBRUARY 2003 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 56 of 1999

BETWEEN: COOK INCORPORATED

Applicant/Cross Respondent

AND: WORLD MEDICAL MANUFACTURING CORPORATION

First Respondent/First Cross Claimant