Aspirating IP Limited v Vision Systems Limited (No 2) [2011] FCA 249

FEDERAL COURT OF AUSTRALIA

Aspirating IP Limited v Vision Systems Limited (No 2) [2011] FCA 249 Citation: Aspirating IP Limited v Vision Systems Limited (No 2) [2011] FCA 249

Parties: ASPIRATING IP LIMITED v VISION SYSTEMS LIMITED

File numbers: VID 1042 of 2008 SAD 59 of 2005

Judge: BESANKO J

Date of judgment: 22 March 2011

Catchwords: COSTS — applications for costs in two appeals in opposition proceedings under s 60 of the Patents Act 1990 (Cth) — where respondent had been substantially successful — where applicant had succeeded on some issues, including entitlement issue — where entitlement issue had involved calling of evidence from witnesses in England — whether entitlement costs should be subject of separate order — whether costs of other issues on which applicant was successful should be subject of separate order — whether applicant entitled to costs of preparing evidence to answer evidence filed but not read by respondent — scale of costs applicable to proceedings before delegate HELD: The applicant should pay 75 per cent of the respondent's costs, with the exception of those costs of and incidental to the issue of entitlement. The respondent should pay the applicant's costs of the entitlement issue.

Legislation: Federal Court of Australia Act 1976 (Cth) s 43(2) Patents Act 1990 (Cth) s 59(a), s 60 Patent Regulations 1991 (Cth)

Cases Cited: Aspirating IP Limited v Vision Systems Limited [2010] FCA 1061; (2010) 88 IPR 52, cited Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, cited JMVB Enterprises Pty Ltd (Formerly A'Van Campers Pty Ltd) v Camoflag Pty Ltd (No 2) [2007] FCAFC 6, cited Minnesota Mining and Manufacturing Co v Tyco Electronics Pty Ltd [2001] FCA 1624, cited Patent Gesellschaft AG v Saudi Livestock Transport & Trading Co (No 2) (1996) 33 IPR 461, cited