Liberation Developments Pty Ltd v Lomax Group Pty Ltd [2018] FCA 842

Liberation Developments Pty Ltd v Lomax Group Pty Ltd [2018] FCA 842

Leave is granted to the cross-claimants to press a claim for invalidity on the ground of fair basing under s 138(3)(f) and s 40(3) of the Patents Act 1990 (Cth), given that the mistake in communication was clarified, and fair basing is primarily a question of construction, though evidence from skilled addressees may be relevant and admissible. Strict timetabling for evidence is ordered and leave is also granted to rely on the late affidavit of Mark Andrew Lomax.

Jurisdiction
Australia
Judgment Date
05 June 2018
Procedural Posture
Intellectual Property Dispute / Case Management Hearing Prior to Trial
Outcome
Leave granted to cross-claimants to press invalidity claim on fair basing; leave granted to rely on late affidavit; costs reserved.
Legal Topics
['patents' 'innovation Patents' 'invalidity' 'fair Basis']
['intellectual Property'] ['patents' 'innovation Patents' 'invalidity' 'fair Basis']

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Procedural Posture

Intellectual Property Dispute / Case Management Hearing Prior to Trial

Legal Issues

  1. 1 ['Whether leave should be granted to press a cross-claim for invalidity of Claims 1, 3 and 4 of an Innovation Patent on the ground of fair basing under s 138(3)(f) and s 40(3) of the Patents Act 1990 (Cth)' 'Whether leave should be granted to rely upon the affidavit of Mark Andrew Lomax']

Ratio Decidendi

Leave is granted to the cross-claimants to press a claim for invalidity on the ground of fair basing under s 138(3)(f) and s 40(3) of the Patents Act 1990 (Cth), given that the mistake in communication was clarified, and fair basing is primarily a question of construction, though evidence from skilled addressees may be relevant and admissible. Strict timetabling for evidence is ordered and leave is also granted to rely on the late affidavit of Mark Andrew Lomax.

Court Disposition

Leave granted to cross-claimants to press invalidity claim on fair basing; leave granted to rely on late affidavit; costs reserved.

Orders

  • ['Orders and reasons published from Chambers pursuant to s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), and rules 1.32, 1.36, 39.32 of the Federal Court Rules 2011.' 'Leave to cross-claimants to press invalidity of Claims 1, 3 and 4 on fair basing.' 'Cross-claimants to file evidence by 7 June 2018,...