Category Archive for: ‘Litigation and procedure’

New two-tier Federal Court

The Government has announced a restructure of the Federal Courts system, which will expand the Federal Court’s IP jurisdiction.

The Federal Magistrates’ Court will be merged into the Federal Court and the Family Court, so that all IP disputes will be heard at first instance in the Federal Court.  The new Federal Court will have two tiers:

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The winner doesn’t always take it all – apportioning costs in patent cases

Everyone is aware of the ordinary rule: costs follow the event.  A successful litigant will recover costs in the absence of special circumstances.  But what constitutes special circumstances in patent cases?  The recent Full Court decision in PAC Mining Pty Ltd v Esco Corporation (No 2) [2009] FCAFC 52 highlights where the Court may depart from the ordinary rule and apportion costs on an issues basis.

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Clothing cases reveal the limits to design protection

Three recent cases instituted by Review (an Australian clothing designer and retailer) against alleged infringers of its registered dress designs have shown how difficult it can be to deter would-be infringers.  Although in each of the three cases (Review Australia Pty Ltd v Innovative Lifestyle Investments [2008] FCA 74; Review 2 Pty Ltd v Redbury Enterprise Pty Ltd [2008] FCA 1588; and Read More

“Monster” – New direction on advertising evidence from the Federal Court?

Over recent years, some members of the Federal Court have been sceptical about advertising evidence.  In Cadbury v Darrell Lea,  Heerey J made it clear that expert marketing evidence could prove an expensive waste of time.  In his view, judges were well placed to determine themselves the brand impact of different types of packaging and marketing.  Heerey J was not alone in this view, although the Full Court did overturn his decision to exclude expert evidence from the case.  Now, the “Monster” case shows that the debate continues, but is perhaps trending towards an accept

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Fast Track Federal Court

Over the past two years, the Federal Court of Australia has implemented extensive procedural reforms to streamline court procedure and thereby reduce cost and delay for litigants. 

The Victorian fast track list caters for a range of proceedings including those arising out of or relating to commercial transactions, construction of commercial documents, and most cases involving IP rights.  Sixty-five cases have been filed in the list since its inception in 2007, just over a third of which have been IP matters. 

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