Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Termite Tite (NZ) No 2 Limited v Term-Seal (Aust) Pty Limited [2007] FCA 1493
INTELLECTUAL PROPERTY – PATENTS – Infringement proceedings pursuant to s 120 Patents Act 1990 (Cth) – where applicants proprietors of patent for membranous termite barrier – where first and second respondents manufactured, sold, installed, offered for sale or installation, advertised, promoted and marketed termite barrier system – where third respondents authorised, procured and directed such conduct – whether permissible to construe independent claims in patent by reference to subsequent dependent claims – whether respondents infringed applicant's patent.
Held: Infringement turns on a comparison between the applicants' patent and respondents' product – subsequent dependent claim no assistance in interpretation of independent claims in circumstances – respondents' product contains all integers in claims of applicants' patent alleged to be infringed – respondents infringed applicants' patent. INTELLECTUAL PROPERTY – PATENTS – Counter-claim for revocation of patent pursuant to s 121 Patents Act 1990 (Cth) – where applicants proprietor of patent for membranous termite barrier – where combination patent – where prior art information –whether invention embodied in patent a patentable invention within s 18 Patents Act 1990 (Cth) – whether prior art anticipates invention – whether invention lacks novelty within s 7(1) Patents Act 1990 (Cth) – whether prior patents or patent applications part of common general knowledge within s 7(2) Patents Act 1990 (Cth) - whether invention was obvious within s 7(2) Patents Act 1990 (Cth) – whether invention lacks inventive step within s 7(2) Patents Act 1990 (Cth) – whether invention is useful within s 18(1)(c) Patents Act 1990 (Cth).
Held: No prior art information anticipated invention – invention taken to be novel – evidence does not establish prior patents and patent applications part of common general knowledge – invention not obvious – invention taken to involve inventive step – invention embodied in patent properly construed useful – invention embodied in patent a patentable invention – patent valid – counter-claim dismissed.
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