Vald Pty Ltd v KangaTech Pty Ltd (No 5) [2024] FCA 333

FEDERAL COURT OF AUSTRALIA

Vald Pty Ltd v KangaTech Pty Ltd (No 5) [2024] FCA 333 File number(s): QUD 440 of 2019

Judgment of: DOWNES J

Date of judgment: 5 April 2024

Catchwords: PATENTS – patent for apparatus for use in assessing the strength of at least one knee flexor muscle of a subject – claim construction – patent for method of assessing strength of at least one knee flexor muscle using an apparatus – infringement – validity PATENTS – claim construction – whether results obtained from use of apparatus and method must be reliable – relevance of consistory clauses to construction of claims – whether disguised method claim – whether product claim limited by result PATENTS – validity – sufficiency and support – whether patent met requirements of ss40(2)(a) and 40(3) Patents Act 1990 (Cth) if claim 1 was construed as only requiring one leg to be secured by securing member – whether lack of inventive step PATENTS – infringement – infringement conceded in relation to original device and later device prior to software modifications – no infringement found in relation to device after software modifications made – whether infringement within meaning of s117(2)(b) Patents Act 1990 (Cth) – whether instruction or inducement within s117(2)(c) Patents Act 1990 (Cth) EVIDENCE – infringement sought to be established by expert evidence based upon evidence of demonstrations performed on apparatus by non-independent person – relevant facts relating to demonstration not adduced into evidence – impact on weight attached to videos of demonstrations and expert evidence