Aus Fence Hire Pty Ltd v Thomas [2004] FCA 557

FEDERAL COURT OF AUSTRALIA

Aus Fence Hire Pty Ltd v Thomas [2004] FCA 557 INTELLECTUAL PROPERTY – patents – revocation – innovation patent – invention not a patentable invention – lack of novelty when compared with the prior art base as it existed before the priority date – application of reverse infringement test – whether the alleged anticipation in the prior art base would constitute an infringement if the patent were valid PRACTICE AND PROCEDURE – judgments and orders – default judgment – judgment in default of defence – where failure to file a defence Patents Act 1990 (Cth) ss 138(1), 138(1A), 138(3), 18(1A) 7(1), Schedule 1 Meyers Taylor Pty Ltd v Vicarr Industries Ltd (1977) 137 CLR 228 Applied AUS FENCE HIRE PTY LTD and BOLDMONT PTY LTD v OWEN THOMAS AND BRETT THOMAS Q 36 OF 2004 KIEFEL J BRISBANE 5 MAY 2004

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q36 OF 2004

BETWEEN: AUS FENCE HIRE PTY LTD (ACN 102 465 467)

FIRST APPLICANT

BOLDMONT PTY LTD (ACN 057 604 690)

SECOND APPLICANT

AND: OWEN THOMAS

FIRST RESPONDENT

BRETT THOMAS

SECOND RESPONDENT

JUDGE: KIEFEL J

DATE OF ORDER: 5 MAY 2004

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1. Judgment be entered for the applicants against the respondents. 2. Pursuant to s138(1) of the Patents Act 1990 (Cth) Australian Innovation Patent No. 2002101002 be revoked. 3. The respondents pay to the applicants their costs of the application, including reserved costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q36 OF 2004

BETWEEN: AUS FENCE HIRE PTY LTD (ACN 102 465 467)

FIRST APPLICANT