PhotoCure ASA v Queen's University at Kingston [2003] FCA 1508

PhotoCure ASA v Queen's University at Kingston [2003] FCA 1508

The consent order was varied because Ms Mantell's dual role as Dusa's corporate secretary and legal adviser created a potential conflict, and the Court was not satisfied that excluding her from general access to all material claimed to be confidential would impede Dusa's conduct of the Australian patent litigation. Dusa had experienced Australian legal representatives and another Reed Smith LLP attorney specialising in patent litigation who was not an officer of Dusa. The discovery of the attorneys' officer status was a new fact rendering the original order unjust in its original form.

Jurisdiction
Australia
Judgment Date
18 December 2003
Procedural Posture
Patent Litigation; Practice and Procedure Concerning Discovery of Confidential Documents / Application to Vary Consent Orders Restricting Access to Confidential Documents and Information
Outcome
Application granted; consent order varied.
Legal Topics
['discovery of Confidential Documents' 'inspection of Confidential Documents by Attorneys' 'consent Orders' 'confidentiality Undertakings' 'potential Conflict of Interest']
['practice and Procedure' 'intellectual Property' 'patent Litigation'] ['discovery of Confidential Documents' 'inspection of Confidential Documents by Attorneys' 'consent Orders' 'confidentiality Undertakings' 'potential Conflict of Interest']

Case Brief

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Procedural Posture

Patent Litigation; Practice and Procedure Concerning Discovery of Confidential Documents / Application to Vary Consent Orders Restricting Access to Confidential Documents and Information

Legal Issues

  1. 1 ["Whether the consent orders should be varied so that access to Photocure's confidential documents and information is confined to Reed Smith LLP attorneys who are not officers of Dusa." 'Whether Ms Nanette Mantell, an attorney at Reed Smith LLP and corporate secretary of Dusa, should be permitted to inspect confidential material in the litigation.']

Ratio Decidendi

The consent order was varied because Ms Mantell's dual role as Dusa's corporate secretary and legal adviser created a potential conflict, and the Court was not satisfied that excluding her from general access to all material claimed to be confidential would impede Dusa's conduct of the Australian patent litigation. Dusa had experienced Australian legal representatives and another Reed Smith LLP attorney specialising in patent litigation who was not an officer of Dusa. The discovery of the attorneys' officer status was a new fact rendering the original order unjust in its original form.

Court Disposition

Application granted; consent order varied.

Orders

  • ['The consent order made on 25 November 2003 be varied so that paragraph 1.2(ii) of Schedule 1 to that order reads as follows: "(ii) Reed Smith LLP, US attorneys for the Respondents/Cross-Claimant, other than attorneys who are officers of the Respondents/Cross-Claimant;"']