Gambro Pty Ltd & Anor v Fresenius Medical Care South East Asia Pty Ltd & Ors [1998] FCA 1355

Gambro Pty Ltd & Anor v Fresenius Medical Care South East Asia Pty Ltd & Ors [1998] FCA 1355

The s 115 issues should be heard with the quantum issues rather than at the amendment stage because good faith and reasonable skill and knowledge require consideration of the full factual background and all relevant evidence; early findings may be affected by later evidence, the issue may not need to be determined if the respondent succeeds on infringement or invalidity, and any duplication can be avoided or minimised through docket management.

Jurisdiction
Australia
Judgment Date
15 October 1998
Procedural Posture
Patent Proceeding Involving an Application to Amend a Patent, and Questions as to Infringement, Validity, Damages and Account of Profits / Notice of Motion Concerning When Issues Under S 115 of the Patents Act 1990 (cth) Should Be Heard
Outcome
Notice of Motion granted; s 115 damages or account of profits issues to be heard and considered with all other issues as to quantum; respondent to pay applicants' costs.
Legal Topics
['amendment to Patent Specification' 'damages or Account of Profits Before Amendment' 'good Faith and Reasonable Skill and Knowledge' 'case Management and Timing of Issues']
['patents' 'civil Procedure'] ['amendment to Patent Specification' 'damages or Account of Profits Before Amendment' 'good Faith and Reasonable Skill and Knowledge' 'case Management and Timing of Issues']

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Procedural Posture

Patent Proceeding Involving an Application to Amend a Patent, and Questions as to Infringement, Validity, Damages and Account of Profits / Notice of Motion Concerning When Issues Under S 115 of the Patents Act 1990 (cth) Should Be Heard

Legal Issues

  1. 1 ['Whether evidence should be taken and a finding made at the amendment hearing on whether the original specification was framed in good faith and with reasonable skill and knowledge under s 115 of the Patents Act 1990 (Cth).' 'Whether any issue as to damages or account of profits under s 115 should instead be heard with all other issues as to quantum.']

Ratio Decidendi

The s 115 issues should be heard with the quantum issues rather than at the amendment stage because good faith and reasonable skill and knowledge require consideration of the full factual background and all relevant evidence; early findings may be affected by later evidence, the issue may not need to be determined if the respondent succeeds on infringement or invalidity, and any duplication can be avoided or minimised through docket management.

Court Disposition

Notice of Motion granted; s 115 damages or account of profits issues to be heard and considered with all other issues as to quantum; respondent to pay applicants' costs.

Orders

  • ['The Notice of Motion is granted.' 'Any issue as to damages or account of profits under s 115 of the Patents Act 1995 (Cth) is to be heard and considered with all other issues as to quantum.' 'The respondent pay the costs of the applicants.']