EIS GmbH v LELO Oceania Pty Ltd (Expert Evidence) [2024] FCA 1334

EIS GmbH v LELO Oceania Pty Ltd (Expert Evidence) [2024] FCA 1334

Mr Duff is excluded from participating in expert conferences concerning novelty and inventive step because affidavit evidence relied upon as expert evidence did not comply with rule 23.13; proper notice of intention to call him as an expert on these issues was not provided; fairness requires clarity and compliance with procedural expert evidence rules.

Parties
Applicant/cross Respondent: EIS GmbH; First Respondent/first Cross Claimant: LELO Oceania Pty Ltd; Second Respondent/second Cross Claimant: LELOI AB; Respondent (nsd 1411 of 2023): Calvista Australia Pty Ltd
Jurisdiction
Australia
Judgment Date
19 November 2024
Procedural Posture
Patent Infringement and Revocation / Pre Trial; Interlocutory Expert Evidence Dispute
Outcome
Mr Michael Duff excluded from joint expert conferences on novelty and inventive step; issue of relying on his affidavit evidence deferred to trial; applicant/cross-respondent granted leave to file affidavit in reply.
Legal Topics
Patent Infringement, Validity, Expert Evidence, Novelty, Inventive Step
Intellectual Property Patent Infringement Validity Expert Evidence Novelty Inventive Step

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Parties

EIS GmbH

Applicant/cross Respondent

LELO Oceania Pty Ltd

First Respondent/first Cross Claimant

LELOI AB

Second Respondent/second Cross Claimant

Calvista Australia Pty Ltd

Respondent (nsd 1411 of 2023)

Procedural Posture

Patent Infringement and Revocation / Pre Trial; Interlocutory Expert Evidence Dispute

Legal Issues

  1. 1 Whether Mr Michael Duff may participate in joint expert conferences as an expert witness on novelty and inventive step
  2. 2 Compliance with rule 23.13 of the Federal Court Rules 2011 (Cth) regarding expert affidavit requirements
  3. 3 Whether respondents/cross-claimants may rely on specified affidavit paragraphs at trial

Ratio Decidendi

Mr Duff is excluded from participating in expert conferences concerning novelty and inventive step because affidavit evidence relied upon as expert evidence did not comply with rule 23.13; proper notice of intention to call him as an expert on these issues was not provided; fairness requires clarity and compliance with procedural expert evidence rules.

Court Disposition

Mr Michael Duff excluded from joint expert conferences on novelty and inventive step; issue of relying on his affidavit evidence deferred to trial; applicant/cross-respondent granted leave to file affidavit in reply.

Orders

  • Mr Michael Duff is not permitted to participate in the joint expert conferences concerning novelty and inventive step identified in the 'Topics for Joint Expert Conferences' marked 'MFI-2'.
  • The question of whether the Respondents/Cross-Claimants are entitled to rely upon [14]–[49] of the affidavit of Mr Michael Duff affirmed on 15 November 2024 at trial is reserved to trial.