Bitech Engineering v Garth Living Pty Ltd [2011] FCA 357

FEDERAL COURT OF AUSTRALIA

Bitech Engineering v Garth Living Pty Ltd [2011] FCA 357 Citation: Bitech Engineering v Garth Living Pty Ltd [2011] FCA 357

Parties: BITECH ENGINEERING v GARTH LIVING PTY LTD (ACN 111 145 432) and COHEN NOMINEES PTY LIMITED (ACN 008 526 994) BITECH ENGINEERING v BUNNINGS GROUP LIMITED (ACN 008 672 179) BITECH ENGINEERING v HOTPOINT (AUST) PTY LTD (ACN 082 599 086)

File numbers: NSD 1681 of 2006 NSD 43 of 2007 NSD 2056 of 2007

Judge: FOSTER J

Date of judgment: 12 April 2011

Catchwords: PATENTS – practice and procedure – whether in a patent infringement case, in circumstances where the trial of all questions of liability (including the determination of claims for injunctive relief) were heard and determined before all claims for pecuniary relief, the patentee is entitled without more to seek to recover damages in respect of the importation, sale and/or distribution of additional devices which are alleged to infringe the patent even though those devices were not considered by the Court at the liability stage and were not the subject of any findings of infringement at that stage – in the present case, the patentee had specifically identified the articles which allegedly infringed the patent and conducted the trial and subsequent appeal upon the basis that these were the only articles said to have infringed the patent – the patentee did not reserve the right to enlarge the type of its infringing articles at the damages stage – in the events which have happened and in light of the form of the patentee's Statements of Claim, additional infringements not permitted to be litigated at the damages stage