Aus Fence Hire Pty Ltd v Thomas [2004] FCA 557

Aus Fence Hire Pty Ltd v Thomas [2004] FCA 557

The respondents had defaulted by failing to file a defence. The applicants' evidence showed that the first applicant's temporary fencing, publicly used before the patent's priority date, contained the integers of each claim of the respondents' certified innovation patent. Applying the reverse infringement test, that prior fencing would have infringed each claim if the patent were valid. The claimed invention therefore lacked novelty, was not a patentable invention, and Australian Innovation Patent No. 2002101002 was revoked.

Jurisdiction
Australia
Judgment Date
05 May 2004
Procedural Posture
Application for Revocation of an Innovation Patent and Motion for Judgment in Default / Judgment in Default of Defence With Reasons for Orders Revoking the Patent
Outcome
Judgment entered for the applicants; Australian Innovation Patent No. 2002101002 revoked; respondents ordered to pay costs.
Legal Topics
['innovation Patent Revocation' 'patentable Invention' 'novelty' 'prior Art Base' 'reverse Infringement Test' 'default Judgment' 'failure to File Defence']
['intellectual Property' 'patents' 'practice and Procedure'] ['innovation Patent Revocation' 'patentable Invention' 'novelty' 'prior Art Base' 'reverse Infringement Test' 'default Judgment' 'failure to File Defence']

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Procedural Posture

Application for Revocation of an Innovation Patent and Motion for Judgment in Default / Judgment in Default of Defence With Reasons for Orders Revoking the Patent

Legal Issues

  1. 1 ['Whether Australian Innovation Patent No. 2002101002 was liable to be revoked under s 138(1) of the Patents Act 1990 (Cth).' 'Whether the claimed invention was a patentable invention for an innovation patent within s 18(1A) of the Patents Act 1990 (Cth).' 'Whether the invention lacked novelty when compared with the prior art base as it existed before the priority date.' "Whether the applicants' prior temporary fencing, supplied before the priority date, would have infringed the respondents' claims if the patent were valid." 'Whether judgment should be entered against the respondents in default of filing and serving a defence.']

Ratio Decidendi

The respondents had defaulted by failing to file a defence. The applicants' evidence showed that the first applicant's temporary fencing, publicly used before the patent's priority date, contained the integers of each claim of the respondents' certified innovation patent. Applying the reverse infringement test, that prior fencing would have infringed each claim if the patent were valid. The claimed invention therefore lacked novelty, was not a patentable invention, and Australian Innovation Patent No. 2002101002 was revoked.

Court Disposition

Judgment entered for the applicants; Australian Innovation Patent No. 2002101002 revoked; respondents ordered to pay costs.

Orders

  • ['Judgment be entered for the applicants against the respondents.' 'Pursuant to s138(1) of the Patents Act 1990 (Cth) Australian Innovation Patent No. 2002101002 be revoked.' 'The respondents pay to the applicants their costs of the application, including reserved costs.']