Gambro Pty Limited v Fresenius Medical Care Australia Pty Limited [2004] FCA 665

Gambro Pty Limited v Fresenius Medical Care Australia Pty Limited [2004] FCA 665

On the current pleadings and conduct of the proceedings, the contested declaration and orders were open. The further amended application and further amended statement of claim were wide enough to encompass the orders sought, and the respondent's further amended defence and earlier admissions admitted matters going to s 117 in respect of Dialysis Machines with the biBag Option individually as well as collectively. The lack of debate at trial about whether such machines had more than one reasonable use resulted from the matter having been admitted, not from the issue being absent from the proceedings. The Court therefore would make the contested declaration and orders on the current state...

Jurisdiction
Australia
Judgment Date
31 May 2004
Procedural Posture
Patent Infringement Proceedings / Application by the Applicants for Further Orders Conformably With Earlier Reasons on Liability; Respondent Indicated It May Seek to Withdraw Admissions or Take Other Steps by Notice of Motion
Outcome
Proceedings stood over to 25 June 2004; timetable made for any respondent notice of motion and evidence; costs since 25 March 2004 reserved.
Legal Topics
['patent Infringement' 'indirect Infringement by Supply Under S 117 of the Patents Act 1990 (cth)' 'pleadings and Admissions' 'injunctive Relief' 'delivery Up or Modification of Infringing Articles']
['intellectual Property' 'patent Law' 'civil Procedure'] ['patent Infringement' 'indirect Infringement by Supply Under S 117 of the Patents Act 1990 (cth)' 'pleadings and Admissions' 'injunctive Relief' 'delivery Up or Modification of Infringing Articles']

Case Brief

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Procedural Posture

Patent Infringement Proceedings / Application by the Applicants for Further Orders Conformably With Earlier Reasons on Liability; Respondent Indicated It May Seek to Withdraw Admissions or Take Other Steps by Notice of Motion

Legal Issues

  1. 1 ['Whether the contested declaration and orders concerning Dialysis Machines with the biBag Option were open on the originating process, pleadings, particulars, admissions and conduct of the hearing.' 'Whether infringement by supply of Dialysis Machines with the biBag Option without contemporaneous supply of a biBag Article had been pleaded, admitted and dealt with in the proceedings.' 'Whether the respondent should be permitted to withdraw admissions or take other steps by notice of motion before further final orders are made.']

Ratio Decidendi

On the current pleadings and conduct of the proceedings, the contested declaration and orders were open. The further amended application and further amended statement of claim were wide enough to encompass the orders sought, and the respondent's further amended defence and earlier admissions admitted matters going to s 117 in respect of Dialysis Machines with the biBag Option individually as well as collectively. The lack of debate at trial about whether such machines had more than one reasonable use resulted from the matter having been admitted, not from the issue being absent from the proceedings. The Court therefore would make the contested declaration and orders on the current state...

Court Disposition

Proceedings stood over to 25 June 2004; timetable made for any respondent notice of motion and evidence; costs since 25 March 2004 reserved.

Orders

  • ['On or before 9 June 2004, the respondent file and serve any notice of motion upon which it seeks to move in these proceedings, any further evidence in support of that motion, a document entitled "Evidence To Be Relied Upon" identifying each affidavit, document or other piece of evidence upon which it will seek to...