FEDERAL COURT OF AUSTRALIA

Sachtler GMBH & Co KG v RE Miller Pty Ltd [2005] FCA 788

CORRIGENDUM

SACHTLER GMBH & CO KG (FORMERLY SACHTLER AG) v R E MILLER PTY LTD

NSD161 OF 2003

BENNETT J

15 JUNE 2005 (Corrigendum dated 14 July 2005)

SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.
2. The applicant pay the respondent’s costs.
3. The cross claim be dismissed with no order as to costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

CORRIGENDUM

Amendment to the Reasons for Judgment of Bennett J published 15 June 2005:

1                     On the order page of the Judgment insert: "3. The cross claim be dismissed with no order as to costs."

2                     Paragraph 11 of the Judgment should read: “Miller filed a cross-claim seeking revocation of the patent.  The particulars of invalidity, filed on 26 May 2003, raised a number of grounds of invalidity.  At the hearing, the challenge to the validity of the patent on the grounds of fair basis, lack of definition and ambiguity was not pressed.  During the hearing, the ground of false suggestion or misrepresentation was abandoned.

3                     Paragraph 154 of the Judgment should read: “The only claim of invalidity that remained was based upon the alleged deferred priority date.  It was agreed by counsel that, if there were no infringement, the claim of invalidity based upon a deferred priority date by reason of the introduction of new matter on amendment does not arise.  The challenge to the validity of the patent on the bases that the claims are not fairly based on the matter described in the specification, lack definition and were ambiguous were not pressed.  The claim of invalidity based on false suggestion or misrepresentation was abandoned.  Accordingly, there are no grounds of invalidity to be determined and the parties agree that, as a result of the finding on infringement, the cross claim is to be dismissed with no order as to costs.”

4                     In paragraph 155 of the Judgment insert: "3. The cross claim be dismissed with no order as to costs."

Associate:

Dated:              14 July 2005

FEDERAL COURT OF AUSTRALIA

Sachtler GMBH & Co KG v RE Miller Pty Ltd [2005] FCA 788

CORRIGENDUM

SACHTLER GMBH & CO KG (FORMERLY SACHTLER AG) v R E MILLER PTY LTD

NSD161 OF 2003

BENNETT J

15 JUNE 2005 (Corrigendum dated 27 July 2005)

SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.
2. The applicant pay the respondent’s costs.
3. The cross claim be dismissed with no order as to costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

CORRIGENDUM

Amendment to the Reasons for Judgment of Bennett J published 15 June 2005:

1                     Paragraph 55 of the Judgment should read: “To the extent that recent judgments of this Court have suggested that there may be infringement by taking what is determined to be the substantial idea disclosed by the specification but not the essential integers of the claim, I must respectfully disagree.  To the extent that cases such as Olin are relied upon as authority for the proposition that there is infringement by taking the “pith and marrow” or substance of an invention, untrammelled by the form of the claims, in my view those cases stand for the opposite test.  An examination of “non-textual” infringement raises the question whether ‘the substance of the invention as claimed has been taken’ (emphasis added) (Rehm at 92).”

Associate:

Dated:              27 July 2005