Term-Seal (Aust) Pty Limited v Termite Tite (NZ) No 2 Limited [2008] FCAFC 95

Term-Seal (Aust) Pty Limited v Termite Tite (NZ) No 2 Limited [2008] FCAFC 95

The appeal failed because the trial judge's findings established that disodium octaborate was a termite resisting product present in the appellants' product in an appreciable quantity, so the relevant infringement integer was satisfied. The Kennedy and Hitchen patent did not clearly disclose or teach impregnated matting, and the Ogawa patent did not disclose the claimed perimeter barrier extending between the mortar course of a masonry wall and an adjacent concrete slab; therefore anticipation was not established and the revocation case failed.

Jurisdiction
Australia
Judgment Date
11 June 2008
Procedural Posture
Appeal by Leave From a Single Judge of the Federal Court of Australia / Full Court Appeal
Outcome
Appeal dismissed with costs.
Legal Topics
['patent Infringement' 'patent Validity' 'novelty' 'anticipation' 'revocation Cross Claim' 'claim Construction']
['patents' 'intellectual Property'] ['patent Infringement' 'patent Validity' 'novelty' 'anticipation' 'revocation Cross Claim' 'claim Construction']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal by Leave From a Single Judge of the Federal Court of Australia / Full Court Appeal

Legal Issues

  1. 1 ["Whether the appellants' product contained the integer of a matting impregnated with a termite resisting product in claims 1 and 2 of Australian Patent No 758879." 'Whether the claimed invention was anticipated by the Kennedy and Hitchen patent.' 'Whether the claimed invention was anticipated by the Ogawa patent.']

Ratio Decidendi

The appeal failed because the trial judge's findings established that disodium octaborate was a termite resisting product present in the appellants' product in an appreciable quantity, so the relevant infringement integer was satisfied. The Kennedy and Hitchen patent did not clearly disclose or teach impregnated matting, and the Ogawa patent did not disclose the claimed perimeter barrier extending between the mortar course of a masonry wall and an adjacent concrete slab; therefore anticipation was not established and the revocation case failed.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['The appeal be dismissed.' 'The appellants pay the costs of the respondents.']