Inverness Medical Switzerland GmbH v MDS Diagnostics Pty Limited [2010] FCA 108

FEDERAL COURT OF AUSTRALIA

Inverness Medical Switzerland GmbH v MDS Diagnostics Pty Limited [2010] FCA 108 Citation: Inverness Medical Switzerland GmbH v MDS Diagnostics Pty Limited [2010] FCA 108

Parties: INVERNESS MEDICAL SWITZERLAND GMBH v MDS DIAGNOSTICS PTY LIMITED (ACN 090 764 702), MDS DIAGNOSTICS LIMITED (NEW ZEALAND COMPANY NO 1000571), PRAKASH APPANNA, AUSTRALIAN MEDICAL TESTING PTY LIMITED (ACN 101 245 176), FLAMUR KRASNIQI

File number: NSD 1722 of 2006

Judge: BENNETT J

Date of judgment: 22 February 2010

Catchwords: PATENTS – devices for assays involving specific binding – alleged infringement by respondents' pregnancy testing devices – construction of claims – validity – utility – whether product within the claims not useful – claim leaves reader to select appropriate specific binding reagents – novelty – whether applicant's earlier patent anticipates its later patent – whether additional feature in later patent disclosed in earlier patent – construction of "carrier" propounded by applicant for purposes of infringement applies on consideration of anticipation – whether divisional patent takes priority date of priority documents, parent or own filing date – whether divisional patent fairly based on parent patent or priority documents – sufficiency – clarity PATENTS – personal liability of director for infringement by companies – joint tortfeasor – relevant test – relevance of director's knowledge that acts constitute patent infringement – director's involvement in managing companies and procuring and distributing infringing products – meaning of "authorise" under s 13 of the Patents Act – whether analogous to copyright law – whether applicable to directors – sanction, approve or countenance EVIDENCE – admissibility – exception to hearsay rule – whether representation obtained in connection with proceeding