Bayer Bioscience N.V. v Deltapine Australia Pty Ltd (No 2) [2006] FCA 1762

Bayer Bioscience N.V. v Deltapine Australia Pty Ltd (No 2) [2006] FCA 1762

Bayer did not require the Court's permission to conduct the proposed experiments; the Court's role under Order 58 rule 31 was to give directions sufficient to afford Deltapine a fair opportunity to observe and later challenge the experiments, with questions about the merit, usefulness or admissibility of the experimental evidence to be resolved at trial.

Jurisdiction
Australia
Judgment Date
15 December 2006
Procedural Posture
Patent Infringement Proceedings / Interlocutory Notice of Motion for Directions for Experiments Under Order 58 Rule 31 of the Federal Court Rules
Outcome
Directions were to be made for the proposed experiments, with Bayer substantially successful on the motion and costs reserved.
Legal Topics
['directions for Experiments' 'admissibility of Experimental Proof' 'confidentiality of Experimental Protocols' 'costs of Interlocutory Motion']
['patents' 'civil Procedure' 'evidence'] ['directions for Experiments' 'admissibility of Experimental Proof' 'confidentiality of Experimental Protocols' 'costs of Interlocutory Motion']

Case Brief

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Procedural Posture

Patent Infringement Proceedings / Interlocutory Notice of Motion for Directions for Experiments Under Order 58 Rule 31 of the Federal Court Rules

Legal Issues

  1. 1 ['Whether Order 58 rule 31 of the Federal Court Rules empowers the Court to permit or refuse the proposed experiments.' 'What directions should be made for the conduct, observation, recording and confidentiality of the proposed purification and binding experiments.' 'Whether the proposed experiments should be conducted overseas or in Australia.' 'Whether Deltapine should be permitted to have representatives present, ask questions, take photographs and copy documents during the experiments.' 'Whether Bayer should be required to provide samples or waive confidentiality over the proposed purification experiments.' 'How the costs of the experiments and the motion should be treated.']

Ratio Decidendi

Bayer did not require the Court's permission to conduct the proposed experiments; the Court's role under Order 58 rule 31 was to give directions sufficient to afford Deltapine a fair opportunity to observe and later challenge the experiments, with questions about the merit, usefulness or admissibility of the experimental evidence to be resolved at trial.

Court Disposition

Directions were to be made for the proposed experiments, with Bayer substantially successful on the motion and costs reserved.

Orders

  • ['Parties bring in minutes of order to give effect to these reasons.' 'The costs of the motion dated 13 October 2006 are reserved.' 'The purification experiments are to begin on or about 8 January 2007 and the binding experiments on or about 1 February 2007.' 'The experiments are to be conducted in Ghent and...