Kimberly-Clark Australia Pty Ltd v Arico Trading International Pty Ltd [1998] FCA 1523

Kimberly-Clark Australia Pty Ltd v Arico Trading International Pty Ltd [1998] FCA 1523

A stay of the injunction restraining the first respondent from supplying products infringing the applicant's patent is appropriate pending the appeal, subject to undertakings not to dispose of assets other than in the ordinary course of business and the applicant's liberty to apply for security or a cash deposit.

Parties
Applicant: Kimberly-Clark Australia Pty Limited; First Respondent / Cross Claimant: Arico Trading International Pty Limited; Second Respondent: Arie Kliger; Third Respondent: Francisco Martin Otero trading as Koala Nappy Express
Jurisdiction
Australia
Judgment Date
02 November 1998
Procedural Posture
Stay Application in Patent Litigation / Interlocutory (pending Appeal)
Outcome
Stay of key orders granted upon conditions; other applications stood over or orders for extension of time granted.
Legal Topics
Stay of Orders, Patent Infringement, Undertakings as to Assets
Intellectual Property Patents Civil Procedure Stay of Orders Patent Infringement Undertakings as to Assets

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Parties

Kimberly-Clark Australia Pty Limited

Applicant

Arico Trading International Pty Limited

First Respondent / Cross Claimant

Arie Kliger

Second Respondent

Francisco Martin Otero trading as Koala Nappy Express

Third Respondent

Procedural Posture

Stay Application in Patent Litigation / Interlocutory (pending Appeal)

Legal Issues

  1. 1 Whether a stay should be granted of orders restraining supply of products infringing a patent pending appeal
  2. 2 Whether undertakings and/or security are necessary to protect the applicant's interests

Ratio Decidendi

A stay of the injunction restraining the first respondent from supplying products infringing the applicant's patent is appropriate pending the appeal, subject to undertakings not to dispose of assets other than in the ordinary course of business and the applicant's liberty to apply for security or a cash deposit.

Court Disposition

Stay of key orders granted upon conditions; other applications stood over or orders for extension of time granted.

Orders

  • Order 1 made by Burchett J on 16 September 1998 (as varied) further stayed until determination of appeal from judgment of Burchett J of 8 September 1998 in NG 1051 of 1998.
  • Paragraph 1 of the respondents' notice of motion dated 14 October 1998 stood over so far as it relates to orders 7 and 8 of Burchett J.