Norbert Steinhardt & Son Ltd v Meth [1961] HCA 33

High Court of Australia Fullagar J. Norbert Steinhardt & Son Ltd v Meth [1961] HCA 33

ORDER As against defendant Max Meth action dismissed. Declare that the threats contained in the letter dated 3rd October 1956 from defendant Meth Patents Pty. Ltd. to Messrs. Symons & Symons of 53 L'Estrange Street, Glenside, South Australia, are unjustifiable. Injunction restraining said defendant Meth Patents Pty. Ltd. from continuing the said threats. Order that defendants pay three-fourths of plaintiff's taxed costs of action including any reserved costs.

Cur. adv. vult.

Fullagar J. delivered the following written judgment:—

Having considered the submissions of counsel Fullagar J. delivered the following written judgment on the question of costs:—

Nov. 8 J Fullagar

In this action the plaintiff claims a declaration and an injunction in respect of certain alleged threats to institute legal proceedings for the infringement of letters patent. The cause of action asserted is that which is given by s. 121 of the Patents Act 1952-1955 Cth. Section 121 (1) provides: "Where a person, by means of circulars, advertisements or otherwise, threatens a person with an action or proceeding for infringement of a patent, or some other like proceeding, then, whether the person making the threats is or is not entitled to or interested in a patent, or is or is not interested in an application for a patent, a person aggrieved may bring an action against the first-mentioned person and may obtain a declaration to the effect that the threats are unjustifiable, and an injunction against the continuance of the threats, and may recover such damages (if any) as he has sustained, unless the first-mentioned person satisfies the court that the acts in respect of which the proceedings were threatened constitute, or, if done, would constitute—(a) an infringement of a patent in respect of a claim in the specification which is not shown by the plaintiff to be invalid; or (b) an infringement of rights arising from the publication of the complete specification of a claim in the specification which is not shown to be one which would be invalid if a patent had been granted in respect of the complete specification."