Gambro Pty Limited v Fresenius Medical Care South-East Asia Pty Ltd [2000] FCA 1044

Gambro Pty Limited v Fresenius Medical Care South-East Asia Pty Ltd [2000] FCA 1044

Leave to appeal was refused because the proposed appeal would have no prospect of success. The specification as filed sufficiently and reasonably clearly disclosed systems for preparing dialysis or replacement fluids and component fluids, a fluid for a medical procedure included component fluids, the contextual substitution of fluid for water in claim 4 did not broaden the claim, deletion of delivery words removed surplusage without broadening the claim, and new claim 88 was in substance disclosed because the specification taught production of a substantially saturated solution by water passing downward through the powder column without requiring measuring or flow-regulating means.

Jurisdiction
Australia
Judgment Date
04 August 2000
Procedural Posture
Patent Infringement Proceeding With Cross Claim for Revocation and Application to Amend Patent Claims / Application for Leave to Appeal From Interlocutory Order Directing Amendments to Patent Specification
Outcome
Application for leave to appeal dismissed.
Legal Topics
['amendment of Patent Specification' 'allowability of Amendments' 'fair Basis and Substantial Disclosure' 'leave to Appeal From Interlocutory Judgment' 'costs']
['patents' 'intellectual Property' 'civil Procedure'] ['amendment of Patent Specification' 'allowability of Amendments' 'fair Basis and Substantial Disclosure' 'leave to Appeal From Interlocutory Judgment' 'costs']

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Procedural Posture

Patent Infringement Proceeding With Cross Claim for Revocation and Application to Amend Patent Claims / Application for Leave to Appeal From Interlocutory Order Directing Amendments to Patent Specification

Legal Issues

  1. 1 ["Whether leave should be granted to appeal Tamberlin J's interlocutory order allowing amendments to Australian patent no 595423." 'Whether the proposed amended claims would claim matter not in substance disclosed in the specification as filed or would not in substance fall within the scope of the claims before amendment under s 102 of the Patents Act 1990 (Cth).' 'Whether the amended claims would fail to comply with s 40(2) or (3) of the Patents Act 1990 (Cth) because they did not define the invention, were not clear and succinct, or were not fairly based on the matter described in the specification.' 'Whether references to a dialysis or replacement fluid or a component fluid thereof, the substitution of fluid for water, deletion of alleged surplusage, and new claim 88 impermissibly broadened or altered the claims.']

Ratio Decidendi

Leave to appeal was refused because the proposed appeal would have no prospect of success. The specification as filed sufficiently and reasonably clearly disclosed systems for preparing dialysis or replacement fluids and component fluids, a fluid for a medical procedure included component fluids, the contextual substitution of fluid for water in claim 4 did not broaden the claim, deletion of delivery words removed surplusage without broadening the claim, and new claim 88 was in substance disclosed because the specification taught production of a substantially saturated solution by water passing downward through the powder column without requiring measuring or flow-regulating means.

Court Disposition

Application for leave to appeal dismissed.

Orders

  • ['The application for leave to appeal is dismissed.' 'The respondent Fresenius Medical Care South East Asia Pty Limited pay the costs of the applicants Gambro Pty Limited and Gambro AB to be taxed.']