Delnorth Pty Ltd v Dura-Post (Aust) Pty Ltd [2008] FCA 875

FEDERAL COURT OF AUSTRALIA

Delnorth Pty Ltd v Dura-Post (Aust) Pty Ltd [2008] FCA 875 DELNORTH PTY LTD ACN 051 954 977 v DURA-POST (AUST) PTY LTD ACN 101 287 512; DURA-POST (AUST) PTY LTD ACN 101 287 512 v DELNORTH PTY LTD ACN 051 954 977

NSD 378 of 2006

GYLES J

5 JUNE 2008

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 378 of 2006

BETWEEN: DELNORTH PTY LTD ACN 051 954 977

Applicant

AND: DURA-POST (AUST) PTY LTD ACN 101 287 512

Respondent

AND BETWEEN: DURA-POST (AUST) PTY LTD ACN 101 287 512

Cross-Claimant

AND: DELNORTH PTY LTD ACN 051 954 977

Cross-Respondent

JUDGE: GYLES J

DATE OF ORDER: 5 JUNE 2008

WHERE MADE: SYDNEY

THE COURT:

1. ORDERS that the respondent/cross-claimant, Dura-Post (Aust) Pty Ltd, be granted leave to amend its Particulars of Invalidity in relation to the lack of innovative step of Australian Innovation Patent No 2005100978 and the lack of novelty and lack of innovative step of Australian Innovation Patents No 2006100297 and 2006100696 by filing and serving a Fourth Further Amended Particulars of Invalidity in the form of annexure "A" to the Notice of Motion filed 20 May 2008. 2. ORDERS that the respondent/cross-claimant be granted leave to re-open its case in respect of the validity of Australian Innovation Patents No 2005100978, 2006100297 and 2006100696 by tendering United States Patent No US 3312156 (Pellowski). 3. ORDERS that the respondent/cross-claimant pay the costs of this application and the costs thrown away by the reopening. 4. ORDERS that the applicant/cross-respondent file and serve any evidence on or before 27 June next. 5. ORDERS that any evidence in reply be filed and served on or before 11 July next. 6. ORDERS that the matter stand over to 22 July 2008 at 10.15 am for further hearing. 7. GRANTS liberty to apply on two days' notice in the meantime.