Lucent Technologies Inc v Krone Aktiengesellschaft (No 2) [1999] FCA 1462

Lucent Technologies Inc v Krone Aktiengesellschaft (No 2) [1999] FCA 1462

Order 58 Rule 31 is applicable to a party who, after initiation of proceedings, proposes to submit experimental proof, regardless of when the experiment was conducted. Therefore, evidence in para 111 is not admissible unless leave is granted.

Jurisdiction
Australia
Judgment Date
19 October 1999
Procedural Posture
Appeal From Commissioner of Patents Decision / Objection to Evidence During Hearing De Novo
Outcome
Objection upheld; evidence not admissible unless leave is granted; leave granted by consent after further discussion.
Legal Topics
['patent Opposition' 'experimental Evidence' 'procedural Rules']
['intellectual Property' 'evidence'] ['patent Opposition' 'experimental Evidence' 'procedural Rules']

Case Brief

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Procedural Posture

Appeal From Commissioner of Patents Decision / Objection to Evidence During Hearing De Novo

Legal Issues

  1. 1 ['Does Order 58 Rule 31 of the Federal Court Rules apply to experiments conducted before the commencement of the proceeding?' 'Is evidence of an experiment admissible where the other party was not present during the conduct of the experiment?' 'Can leave be granted to admit experimental evidence not compliant with procedural directions?']

Ratio Decidendi

Order 58 Rule 31 is applicable to a party who, after initiation of proceedings, proposes to submit experimental proof, regardless of when the experiment was conducted. Therefore, evidence in para 111 is not admissible unless leave is granted.

Court Disposition

Objection upheld; evidence not admissible unless leave is granted; leave granted by consent after further discussion.

Orders

  • ['O 58 r 31(2) operates to make para 111 not admissible unless leave is given.' 'Leave to admit para 111 granted by consent after discussion.']