Dart Industries Inc v Decor Corporation Pty Ltd [1993] HCA 54

High Court of Australia Mason C.J. Deane, Dawson, Toohey and McHugh JJ. Dart Industries Inc v Decor Corporation Pty Ltd [1993] HCA 54

ORDER Appeal dismissed with costs. Application for special leave to cross-appeal refused with costs. Vary the order of the Full Court of the Federal Court by replacing in par. 3 the word contributed by the words are attributable.

Cur. adv. vult.

The following written judgments were delivered:—

1993, Sept. 29 Mason C.J., Deane, Dawson and Toohey JJ.

The appellant ("Dart") was the successful plaintiff in an action in the Supreme Court of Victoria against the respondents ("Decor" and "Rian") for infringement of a patent in respect of press button seals, or lids, used to seal plastic kitchen canisters [1] . Rian manufactured, with tooling provided by Decor, and Decor produced and sold, plastic kitchen canisters with the press button seals.

1. The patent infringement proceedings are reported in Dart Industries Inc. v Decor Corporation Pty. Ltd. (1988), 11 I.P.R. 385 and Decor Corporation Pty. Ltd. v Dart Industries Inc. (1988), 13 I.P.R. 385.

Dart having elected between damages and an account of profits, the trial judge, King J., ordered an account of profits by Decor and Rian. In giving directions, King J. dealt with two questions, the first of which falls to be determined upon this appeal and the second of which is raised in an application by Decor and Rian for special leave to cross-appeal. The first is whether any part of general overhead costs is allowable as a deduction to Decor or Rian in the determination of the profits made by them from the infringement. The second is whether Decor and Rian must account for profits arising from the manufacture and sale of the composite product, consisting of both the body of the canister and the press button seal, or merely for those profits attributable to the manufacture and sale of the press button seal alone, that being the patented invention.