Dincel Construction System Pty Limited v AFS Systems Pty Ltd (No 3) [2017] FCA 919

Dincel Construction System Pty Limited v AFS Systems Pty Ltd (No 3) [2017] FCA 919

Because substantially more preparation and hearing time was directed to infringement than to the cross-claim, it was not appropriate for each party to bear its own costs. The applicant was to pay the first respondent's costs of the application, including costs of preparing infringement affidavit evidence read at the final hearing despite the earlier interlocutory costs order. The first respondent was to pay the applicant's costs of the cross-claim because the applicant was entitled to its obviousness costs, the novelty case still had to be addressed and would have failed, and fair basis added little and any additional costs should be borne by the first respondent.

Jurisdiction
Australia
Judgment Date
11 August 2017
Procedural Posture
Patent Proceeding; Costs / Costs Determined on the Papers After Dismissal of the Application and the Cross Claim
Outcome
Certificate issued under s 19 of the Patents Act 1990 (Cth); applicant ordered to pay the first respondent's costs of the application; first respondent ordered to pay the applicant's costs of the cross-claim; no order as to the second respondent's costs.
Legal Topics
['costs of Patent Proceeding' 'interlocutory Injunction Costs' 'costs Following Dismissal of Application and Cross Claim' 'certificate Under S 19 of the Patents Act 1990 (cth)']
['intellectual Property' 'patents' 'costs'] ['costs of Patent Proceeding' 'interlocutory Injunction Costs' 'costs Following Dismissal of Application and Cross Claim' 'certificate Under S 19 of the Patents Act 1990 (cth)']

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

Patent Proceeding; Costs / Costs Determined on the Papers After Dismissal of the Application and the Cross Claim

Legal Issues

  1. 1 ['What costs orders should be made where both the application and the cross-claim were dismissed.' "Whether a prior order that the costs of the interlocutory application be the applicant's costs in the proceeding precluded the first respondent from recovering costs of infringement affidavit evidence also relied upon at the final hearing." 'Whether a certificate should issue under s 19 of the Patents Act 1990 (Cth) in relation to validity of specified patent claims.']

Ratio Decidendi

Because substantially more preparation and hearing time was directed to infringement than to the cross-claim, it was not appropriate for each party to bear its own costs. The applicant was to pay the first respondent's costs of the application, including costs of preparing infringement affidavit evidence read at the final hearing despite the earlier interlocutory costs order. The first respondent was to pay the applicant's costs of the cross-claim because the applicant was entitled to its obviousness costs, the novelty case still had to be addressed and would have failed, and fair basis added little and any additional costs should be borne by the first respondent.

Court Disposition

Certificate issued under s 19 of the Patents Act 1990 (Cth); applicant ordered to pay the first respondent's costs of the application; first respondent ordered to pay the applicant's costs of the cross-claim; no order as to the second respondent's costs.

Orders

  • ['Pursuant to s 19 of the Patents Act 1990 (Cth) a certificate be issued certifying that the validity of each of claims 1, 2, 3, 4, 7, 8, 9, 11, 14 and 25 of Standard Patent No 2002328693 was questioned in this proceeding.' "The applicant pay the first respondent's costs of the application." "The costs payable to...