Gambro Pty Ltd v Fresenius Medical Care South East Asia Pty Ltd [2000] FCA 407

Gambro Pty Ltd v Fresenius Medical Care South East Asia Pty Ltd [2000] FCA 407

The requirements for re-opening costs were met. Although the normal rule in patent amendment applications favoured awarding costs to the party opposing amendment, FMC's unsuccessful sustained attack on Gambro distinguished the case and justified limiting the award to 70 per cent of FMC's costs on a party/party basis.

Jurisdiction
Australia
Judgment Date
09 March 2000
Procedural Posture
Intellectual Property Patent Amendment Costs / Respondent's Application to Re Open the Question of Costs After Substantive Judgment
Outcome
Leave granted to re-open the question of costs; applicants ordered to pay 70 per cent of the respondent's costs of the amendment application on a party/party basis.
Legal Topics
['application to Amend Patent' 're Opening Costs' 'party/party Costs' 'costs of Amendment Application']
['intellectual Property' 'patents' 'civil Procedure' 'costs'] ['application to Amend Patent' 're Opening Costs' 'party/party Costs' 'costs of Amendment Application']

Case Brief

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Procedural Posture

Intellectual Property Patent Amendment Costs / Respondent's Application to Re Open the Question of Costs After Substantive Judgment

Legal Issues

  1. 1 ['Whether the respondent should be granted leave to re-open the question of costs.' 'Whether the usual rule that an applicant for patent amendment bears the costs of the opposing party should be applied.' "Whether the respondent's unsuccessful allegations against the applicants justified a discount on the costs awarded."]

Ratio Decidendi

The requirements for re-opening costs were met. Although the normal rule in patent amendment applications favoured awarding costs to the party opposing amendment, FMC's unsuccessful sustained attack on Gambro distinguished the case and justified limiting the award to 70 per cent of FMC's costs on a party/party basis.

Court Disposition

Leave granted to re-open the question of costs; applicants ordered to pay 70 per cent of the respondent's costs of the amendment application on a party/party basis.

Orders

  • ['The respondents be granted leave to re-open the question of costs.' "The applicants pay seventy per cent of the respondent's costs of the amendment application on a party party basis."]