INVERNESS MEDICAL INNOVATIONS INC AND ANOR V MDS DIAGNOSTICS LIMITED AND ANOR HC AK CIV 2007-404-748

INVERNESS MEDICAL INNOVATIONS INC AND ANOR V MDS DIAGNOSTICS LIMITED AND ANOR HC AK CIV 2007-404-748

The court accepted that plaintiffs made a genuine attempt to comply with the joinder conditions and that the deficiencies identified, while real, are not so serious as to deprive the defendants of a fair opportunity to respond or to nullify the earlier joinder order; defendants retain procedural remedies including strike out or application for further particulars and the court imposed a timetable governing either route.

Citation
openlaw-1f7ab98c_a0f7_47d8_a15b_d9255b7527cc.pdf
Parties
First Plaintiff: Inverness Medical Innovations Inc; Second Plaintiff: Inverness Medical Switzerland GmbH; First Defendant: MDS Diagnostics Limited; Second Defendant: Prakash Appanna
Court
High Court
Jurisdiction
New Zealand
Judgment Date
15 August 2008
Procedural Posture
Commercial Proceedings Involving Alleged Copyright Infringement / Interlocutory Hearing on Compliance With Joinder Conditions and Potential Strike Out/further Particulars
Outcome
Conditional joinder upheld; defendants given choice to challenge or to file defences; court issued procedural timetable and reserved costs.
Legal Topics
Joinder, Particulars of Claim, Industrial Application, Infringement Allegations, Strike Out, Discovery/directions
Intellectual Property Copyright Civil Procedure Commercial Law Joinder Particulars of Claim Industrial Application Infringement Allegations +2 more

Case Brief

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Parties

Inverness Medical Innovations Inc

First Plaintiff

Inverness Medical Switzerland GmbH

Second Plaintiff

MDS Diagnostics Limited

First Defendant

Prakash Appanna

Second Defendant

Procedural Posture

Commercial Proceedings Involving Alleged Copyright Infringement / Interlocutory Hearing on Compliance With Joinder Conditions and Potential Strike Out/further Particulars

Legal Issues

  1. 1 Whether the second amended statement of claim identifies the exact copyright works relied on
  2. 2 Whether the pleading distinguishes original aspects of the works from material copied from earlier works
  3. 3 Whether the pleading specifies when the works were industrially applied

Ratio Decidendi

The court accepted that plaintiffs made a genuine attempt to comply with the joinder conditions and that the deficiencies identified, while real, are not so serious as to deprive the defendants of a fair opportunity to respond or to nullify the earlier joinder order; defendants retain procedural remedies including strike out or application for further particulars and the court imposed a timetable governing either route.

Court Disposition

Conditional joinder upheld; defendants given choice to challenge or to file defences; court issued procedural timetable and reserved costs.

Orders

  • If defendants elect to challenge, file application(s) by 4 September 2008 and matter listed for mention 5 September 2008
  • If defendants elect to respond: statement of defence and/or counterclaim to be filed by 4 September 2008