This release includes changes as a result of four recent Federal Court judgments:

1) Pharmacia LLC v Juno Pharmaceuticals Pty Ltd (2022) 168 IPR 431; [2022] FCAFC 167 provided another example of a case where the word "about" in a claim, though superficially ambiguous, could be construed in context. The Full Court agreed with the primary judge’s construction and also reaffirmed earlier authority that the meaning of "comprising" is context-dependent.

2) TCT Group Pty Ltd v Polaris IP Pty Ltd [2022] FCA 1493 is principally concerned with support in an external document. The discussion of the support requirement as it applies to the disclosure of an external document includes reference to recent UK authority. The case is also an example of unjustifiable threats of infringement being held to have occurred even though there was little or no evidence that anyone regarded the relevant communications as threats.

Additionally, there were two cases primarily concerned with damages:

3) In Australian Mud Company Pty Ltd v Globaltech Corp Pty Ltd (No 3) [2022] FCA 1189 additional damages (sometimes referred to as punitive or exemplary damages) were awarded under Patents Act 1990 (Cth) s 122(1A) because the same (or related) parties had previously been held to infringe the same patent with other products, the patent had previously been held to be valid, and the parties did not seek a non-infringement declaration in respect of their newer product. This case provides an example of related companies being held to be joint tortfeasors because of the nature of their relationship, but this is perhaps rather the exception than a general rule.

4) Aristocrat Technologies Australia Pty Ltd v Konami Australia Pty Ltd (No 3) [2022] FCA 1373 is concerned with the determination of an account of profits. Of general relevance to this topic is the Court’s consideration of whether the infringing products would have been made at all had it not been for the invention, and the extent to which the infringer’s profits from the sale of infringing products should be apportioned to take account of the amount of the profits that was derived from exploitation of the invention. 

Please click here for a more detailed summary of the latest release. 
 

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