Allied Pumps Pty Ltd v LAA Industries Pty Ltd [2023] FCA 1457

FEDERAL COURT OF AUSTRALIA

Allied Pumps Pty Ltd v LAA Industries Pty Ltd [2023] FCA 1457 File number(s): NSD 639 of 2021

Judgment of: DOWNES J

Date of judgment: 24 November 2023

Catchwords: PATENTS – innovation patent – power and control system for a dewatering submersible pump – claim construction – validity – infringement PATENTS – novelty – prior acts as disclosures – where commercial hire of systems to customer before priority date – where hired systems were used by customer without restriction – where customer conducted its own testing to determine suitability of systems for its own purposes – where customer was requested to and agreed to provide the results of its tests – whether conduct by customer constituted reasonable trial pursuant to s 24(1)(a) Patents Act 1990 (Cth) and reg 2.2B Patents Regulations 1991 (Cth) PATENTS – novelty – whether documentary disclosures anticipated the claims – where documentary disclosures were other patents and a manual for a system alleged to have been supplied in 2012 – whether combination of alleged disclosures during discussions more than ten years ago in combination with provision of manual anticipated the claims PATENTS – whether priority date should be deferred by reason of lack of disclosure PATENTS – whether there was secret use of the invention – whether deliberate concealment needed to be proven to establish secret use PATENTS – claim of lack of innovative step – task of identifying each variance between prior art and invention as claimed not undertaken – failure to articulate by reference to evidence why that variance does not make a substantial contribution to the working of invention PATENTS – whether infringement within s 117(2)(b) and s 117(2)(c) of the Patents Act 1990 (Cth) EVIDENCE – standard of proof where alleged that patent was anticipated by prior acts – discussion of concept of "strict proof" in relation to prior public acts claimed to destroy novelty EVIDENCE – admissibility of pleadings filed in another proceeding by patentee as evidence of pleaded facts – whether pleaded facts constitute admissions – ss 81, 82 and 87 and clause 6 of Part 2 of the Dictionary of the Evidence Act 1995 (Cth)