Gambro Pty Limited v Fresenius Medical Care Australia Pty Limited [2004] FCA 1025

Gambro Pty Limited v Fresenius Medical Care Australia Pty Limited [2004] FCA 1025

Withdrawal of admissions underpinning s 117(2)(a) of the Patents Act 1990 (Cth) is refused due to the prejudice it would cause to the applicants, particularly in relation to their ability to run an authorisation case, and the need to maintain contemporaneity and fairness in the conduct of litigation; the notice of motion is dismissed with costs.

Parties
First Applicant; Second Cross Respondent: Gambro Pty Limited; Second Applicant; First Cross Respondent: Gambro Lundia AB; Respondent; Cross Claimant: Fresenius Medical Care Australia Pty Limited
Jurisdiction
Australia
Judgment Date
11 August 2004
Procedural Posture
Notice of Motion (withdrawal of Admissions) / Post Trial Motion, Interlocutory Decision Following Substantive Hearings
Outcome
motion dismissed; respondent to pay applicants' costs
Legal Topics
Patent Infringement, Contributory Infringement, Admissions in Pleadings, Section 117 Patents Act, Interlocutory Procedural Orders
Intellectual Property Patents Patent Infringement Contributory Infringement Admissions in Pleadings Section 117 Patents Act Interlocutory Procedural Orders

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Parties

Gambro Pty Limited

First Applicant; Second Cross Respondent

Gambro Lundia AB

Second Applicant; First Cross Respondent

Fresenius Medical Care Australia Pty Limited

Respondent; Cross Claimant

Procedural Posture

Notice of Motion (withdrawal of Admissions) / Post Trial Motion, Interlocutory Decision Following Substantive Hearings

Legal Issues

  1. 1 whether leave should be granted to withdraw certain admissions underpinning s 117(2)(a) of the Patents Act 1990 (Cth)
  2. 2 the effect of admissions regarding reasonable use of dialysis machines and related products
  3. 3 potential prejudice to applicants if admissions are withdrawn

Ratio Decidendi

Withdrawal of admissions underpinning s 117(2)(a) of the Patents Act 1990 (Cth) is refused due to the prejudice it would cause to the applicants, particularly in relation to their ability to run an authorisation case, and the need to maintain contemporaneity and fairness in the conduct of litigation; the notice of motion is dismissed with costs.

Court Disposition

motion dismissed; respondent to pay applicants' costs

Orders

  • The notice of motion dated 9 June 2004 and filed 10 June 2004 be dismissed.
  • The respondent (applicant to the motion) pay the applicants' (the respondents to the motion) costs of the motion.