Kimberly-Clark Australia Pty Limited v Multigate Medical Products Pty Limited [2010] FCA 1318

Kimberly-Clark Australia Pty Limited v Multigate Medical Products Pty Limited [2010] FCA 1318

Properly construed, the claims in suit required inner and outer wrap sheets that were initially separate and unconnected before being joined. Because the Multigate product was made from a single sheet folded over to form two layers, it did not infringe the patents. The priority, novelty and fair basis challenges failed because the claims, on that construction, were fully and fairly disclosed and fairly based, and the prior art did not clearly and unmistakeably disclose the claimed inventions. Rectification under s 192 was refused because alleged non-compliance with s 40(4) did not render the granted patent void or provide a basis to alter substantive patent rights through rectification of...

Jurisdiction
Australia
Judgment Date
30 November 2010
Procedural Posture
Patent Infringement Proceeding and Cross Claim for Patent Invalidity and Rectification of the Register / Hearing of Liability for Infringement, Entitlement to Injunctive and Declaratory Relief, and Validity, Heard Separately Before Damages or Account of Profits
Outcome
The application was dismissed and the cross-claim was dismissed.
Legal Topics
['patent Construction' 'patent Infringement' 'priority Dates' 'divisional Patents' 'novelty' 'fair Basis' 'rectification of the Register' 'sterilisation Wrap System']
['patents' 'intellectual Property'] ['patent Construction' 'patent Infringement' 'priority Dates' 'divisional Patents' 'novelty' 'fair Basis' 'rectification of the Register' 'sterilisation Wrap System']

Case Brief

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Procedural Posture

Patent Infringement Proceeding and Cross Claim for Patent Invalidity and Rectification of the Register / Hearing of Liability for Infringement, Entitlement to Injunctive and Declaratory Relief, and Validity, Heard Separately Before Damages or Account of Profits

Legal Issues

  1. 1 ['Whether the patent claims were limited to a sterilisation wrap made by joining two previously unconnected sheets of wrapping material.' 'Whether the Multigate product, made from one folded sheet, infringed the Grandparent, Parent or Child patents.' 'Whether the claims of the patents were entitled to the claimed priority date of 30 June 1993.' 'Whether the claims lacked novelty by reason of Bourne 1, Bourne 2, Bourne 3, Crabb, Brock or Cox.' 'Whether claims of the Grandparent and Child were fairly based on the matter described in their specifications under s 40(3) of the Patents Act 1990 (Cth).' 'Whether Multigate could obtain rectification of the Register under s 192 for alleged non-compliance with s 40(4) of the Patents Act 1990 (Cth).']

Ratio Decidendi

Properly construed, the claims in suit required inner and outer wrap sheets that were initially separate and unconnected before being joined. Because the Multigate product was made from a single sheet folded over to form two layers, it did not infringe the patents. The priority, novelty and fair basis challenges failed because the claims, on that construction, were fully and fairly disclosed and fairly based, and the prior art did not clearly and unmistakeably disclose the claimed inventions. Rectification under s 192 was refused because alleged non-compliance with s 40(4) did not render the granted patent void or provide a basis to alter substantive patent rights through rectification of...

Court Disposition

The application was dismissed and the cross-claim was dismissed.

Orders

  • ['The application be dismissed.' 'The cross-claim be dismissed.' "The applicants pay the respondent's costs of the application." "The respondent pay the applicants' costs of the cross-claim."]