Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
W & M Klein Pty Ltd v Art Plastics Pty Ltd [2003] FCA 1406 PATENTS – combination patent – alleged infringement – not all essential integers of applicant's claim taken Populin v W B Nominees Pty Ltd (1982) 59 FLR 37 cited Flexible Steel Lacing Co v Beltreco Ltd (2000) 49 IPR 331 applied Bartlem Pty Ltd v CMMC Pty Ltd (2001) 53 IPR 124 cited Bartlem Pty Ltd v Cox Industries (Aust) Pty Ltd (2002) 55 IPR 449 cited Root Qualities Pty Ltd v Root Control Technologies Pty Ltd (2000) 49 IPR 225 cited Welcome Real Time SA v Catuity Inc (2001) 51 IPR 327 applied Décor Corporation v Dart Industries Inc (1988) 13 IPR 385 applied News Ltd v South Sydney District Rugby League Football Club Ltd (2003) 200 ALR 157 cited Stanway Oyster Cylinders Pty Ltd v Marks (1996) 66 FCR 577 cited W & M KLEIN PTY LTD (ACN 006 528 543) v ART PLASTICS PTY LTD (ACN 009 438 706) V 767 of 2001 FINN J 4 DECEMBER 2003 CANBERRA (HEARD IN MELBOURNE)
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY V 767 OF 2001
BETWEEN: W & M KLEIN PTY LTD (ACN 006 528 543)
APPLICANT
AND: ART PLASTICS PTY LTD (ACN 009 438 706)
RESPONDENT
JUDGE: FINN J
DATE OF ORDER: 4 DECEMBER 2003
WHERE MADE: CANBERRA (HEARD IN MELBOURNE)
THE COURT ORDERS THAT: 1. The application be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY V 767 OF 2001
BETWEEN: W & M KLEIN PTY LTD (ACN 006 528 543)
APPLICANT
AND: ART PLASTICS PTY LTD (ACN 009 438 706)
RESPONDENT
JUDGE: FINN J
DATE: 4 DECEMBER 2003
PLACE: CANBERRA (HEARD IN MELBOURNE)
REASONS FOR JUDGMENT 1 The applicant, W & M Klein Pty Ltd ("Klein"), is the patentee of an Australian standard patent (No 630615), for which the priority date is 1 August 1989. The patent, which is for an invention entitled "An Improved Removable Plug Means", must be taken for present purposes to be a valid and subsisting one. 2 This proceeding, at least as now prosecuted, is for an alleged infringement by the respondent, Art Plastics Pty Ltd ("Art Plastics"), of the above patent. The only relief presently sought is by way of declaration and injunction, any question of pecuniary relief being deferred pending my determination here. 3 Put shortly, the invention claimed in the patent relates to a plug used in the field of plumbing which can be inserted in, and removed from, open fluid carrying pipes so as to provide a seal in an effectively leak-proof manner. As described in the claims, the plug presupposes that the open pipe is "threaded" on its exterior (though one of the preferred embodiments is designed for, and one of the claims (claim 8) relates (inter alia) to, a pipe with an interior thread). 4 A sealing plug manufactured, distributed and sold by Art Plastics is alleged to infringe Klein's patent. That infringement is denied.
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