Britax Childcare Pty Ltd v Infa-Secure Pty Ltd [No 2] [2012] FCA 1018

Britax Childcare Pty Ltd v Infa-Secure Pty Ltd [No 2] [2012] FCA 1018

The most appropriate and fair way to facilitate the Court’s determination on infringement following the prior construction judgment is to order a further joint expert report from the existing expert witnesses under the Court’s directions and supervision, rather than referring the matter to a referee or assessor under s 54A or s 217. This approach ensures application of the Court’s claim construction and efficient use of existing expertise, without unfairly burdening the parties or introducing procedural complexity.

Parties
Applicant/cross Respondent: Britax Childcare Pty Ltd (ACN 006 773 600); Respondent/cross Claimant: Infa-Secure Pty Ltd (ACN 092 222 994)
Jurisdiction
Australia
Judgment Date
17 September 2012
Procedural Posture
Patent Infringement / Post Construction Judgment; Interlocutory/further Orders Pre Determination of Infringement
Outcome
Application for referral to referee or appointment of assessor refused. Directions made for further joint expert report and future hearing.
Legal Topics
Patent Claim Construction, Patent Infringement Procedure, Expert Evidence in Patent Litigation, Referral to Referee/assessor Under Federal Court Act, Markman Hearing
Intellectual Property Patents Patent Claim Construction Patent Infringement Procedure Expert Evidence in Patent Litigation Referral to Referee/assessor Under Federal Court Act Markman Hearing

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Parties

Britax Childcare Pty Ltd (ACN 006 773 600)

Applicant/cross Respondent

Infa-Secure Pty Ltd (ACN 092 222 994)

Respondent/cross Claimant

Procedural Posture

Patent Infringement / Post Construction Judgment; Interlocutory/further Orders Pre Determination of Infringement

Legal Issues

  1. 1 Whether the issue of infringement of the ten patents in suit should be referred to a referee under s 54A Federal Court of Australia Act 1976 (Cth) or an assessor under s 217 Patents Act 1990 (Cth)
  2. 2 The appropriate process for determining infringement following the Court’s construction judgment—expert joint report or referral
  3. 3 What materials and scope should govern further expert evidence to determine infringement

Ratio Decidendi

The most appropriate and fair way to facilitate the Court’s determination on infringement following the prior construction judgment is to order a further joint expert report from the existing expert witnesses under the Court’s directions and supervision, rather than referring the matter to a referee or assessor under s 54A or s 217. This approach ensures application of the Court’s claim construction and efficient use of existing expertise, without unfairly burdening the parties or introducing procedural complexity.

Court Disposition

Application for referral to referee or appointment of assessor refused. Directions made for further joint expert report and future hearing.

Orders

  • Before 23 November 2012, applicant's and respondent's expert witnesses to confer (with Registrar and solicitors) to prepare a further joint expert report.
  • Further joint expert report to address presence or absence of integers of relevant claims in the respondent's products, applying the Court’s construction judgment.