VIP Plastic Packaging Pty Ltd v B.M.W. Plastics Pty Ltd [2011] FCA 660

FEDERAL COURT OF AUSTRALIA

VIP Plastic Packaging Pty Ltd v B.M.W. Plastics Pty Ltd [2011] FCA 660 Citation: VIP Plastics Packaging Pty Ltd v B.M.W. Plastics Pty Ltd [2011] FCA 660

Parties: VIP PLASTIC PACKAGING PTY LTD (ACN 095 313 705) v B.M.W. PLASTICS PTY LTD (ACN 006 358 934)

File number: VID 680 of 2008

Judge: KENNY J

Date of judgment: 10 June 2011

Catchwords: PATENTS – alleged infringement of patent – patent described 'variable-length dip tube for a fluid transfer container' – respondent did not dispute manufacture and sale of dip tubes – whether respondent's product infringing – meaning of 'lower end portion' – meaning of 'loose clearance fit' – meaning of phrase 'just below' – respondent's defence fails – respondent's product has all essential integers of relevant claims – infringement established PATENTS – respondent cross-claimed alleging invalidity – construction of claims – whether patent in suit invalid for want of novelty – whether patent anticipated by earlier 'Hancock' patent – no anticipation – lack of novelty not established PATENTS – whether patent in suit invalid for lack of inventive step – whether patent obvious to a non-inventive worker in the field – no evidence that such a worker faced with 'buckling' would as matter of routine have taken steps from prior art to invention as claimed – lack of inventive step not established PATENTS – whether patent in suit a manner of manufacture within the meaning of section 6 of the Statute of Monopolies – no disclosure in the patent specification that the invention not an alleged manner of new manufacture – not invalid on this ground PATENTS – whether patent in suit invalid for lack of definition or clarity – whether terms 'just below the end' and 'inhibits bending' insufficiently clear – purposive approach should be adopted – skilled addressee would find these terms provide a workable standard – terms clear when construed by reference to the specifications of the patents – lack of clarity and definition grounds not made out EVIDENCE – objection to admissibility of expert evidence – consideration of s 79 Evidence Act 1995 role of expert witness – expert witness lacked relevant qualifications and experience – no relevant specialised knowledge based on relevant training, study or experience – witness had no history of working the field of dip tubes, plastics or related field – evidence largely irrelevant and therefore inadmissible – where admissible, little weight accorded EVIDENCE – expert witness not in the class of skilled addressee – witness conceded that he was not in a class of people 'skilled in the art' of dip tubes – witness unable to give reliable evidence of the state of the common general knowledge of a skilled addressee at priority date – evidence largely irrelevant and therefore inadmissible – where admissible, little weight accorded EVIDENCE – objection to admissibility that no proper basis for the opinion – evidence largely speculative – to the extent opinion based on specialised knowledge based on training as a mechanical engineer, irrelevant as not within the relevant art – opinion based on mistaken understanding of relevant legal principles – opinion evidence irrelevant, s 76 Evidence Act 1995 EVIDENCE – role of named inventor – weight to be given to evidence of inventor – evidence admissible in accordance with the principles in Wellcome Foundation Ltd v VR Laboratories (Aust) Pty Ltd (1981) 148 CLR 262