EIS GmbH v LELO Oceania Pty Ltd (Evidence of Experiments) [2024] FCA 713

EIS GmbH v LELO Oceania Pty Ltd (Evidence of Experiments) [2024] FCA 713

Given the explanation for non-compliance, the offers to repeat the experiments, the availability of video evidence and products for inspection, the significant time before trial, and the opportunity to challenge the evidence at trial, leave should be granted to LELO to rely on Mr Duff's affidavit and annexures notwithstanding non-compliance with r 34.50(1).

Jurisdiction
Australia
Judgment Date
03 July 2024
Procedural Posture
Patent Infringement and Revocation Proceedings / Interlocutory Application for Leave to Rely on Evidence of Experiments Under R 34.50(2) Federal Court Rules 2011
Outcome
Leave granted under r 34.50(2)(b) to rely on experimental evidence; costs awarded against applicant.
Legal Topics
['patents' 'practice and Procedure' 'evidence of Experiments' 'federal Court Rules R 34.50']
['intellectual Property'] ['patents' 'practice and Procedure' 'evidence of Experiments' 'federal Court Rules R 34.50']

Case Brief

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Procedural Posture

Patent Infringement and Revocation Proceedings / Interlocutory Application for Leave to Rely on Evidence of Experiments Under R 34.50(2) Federal Court Rules 2011

Legal Issues

  1. 1 ['Whether leave should be granted under rule 34.50(2)(b) Federal Court Rules 2011 (Cth) to allow reliance on evidence of experiments performed without full compliance with r 34.50(1)']

Ratio Decidendi

Given the explanation for non-compliance, the offers to repeat the experiments, the availability of video evidence and products for inspection, the significant time before trial, and the opportunity to challenge the evidence at trial, leave should be granted to LELO to rely on Mr Duff's affidavit and annexures notwithstanding non-compliance with r 34.50(1).

Court Disposition

Leave granted under r 34.50(2)(b) to rely on experimental evidence; costs awarded against applicant.

Orders

  • ["Pursuant to rule 34.50(2)(b) of the Federal Court Rules 2011 (Cth), the Respondents/Cross-claimants be granted leave to rely on the affidavit of Michael Duff affirmed on 6 March 2024 (and annexures 'MD-11', 'MD-13' and 'MD-14') as evidence of conduct and results of experiments performed in Suzhou, China on a...