AUSTRALIA Trends and Developments Contributed by: Ben Miller, Stephen Rohl, Katie Pryor and Jenny Wong, Maddocks
nologies Australia Pty Limited v Commissioner of Patents (No 3) [2024] FCA 212, his Honour determined that the effect of Section 23(2)(a) of the Judiciary Act meant that he was bound by the Full Court’s plurality decision, and should not have regard to any of the reasoning of the High Court, despite the fact that all of the High Court Justices had expressed disagreement with aspects of the reasoning of the Full Court plurality. As a result, he found all of the remaining claims unpatentable. Aristocrat then applied for and was granted leave to appeal the decision of Justice Burley on 30 August 2024 in Aristocrat Technologies Australia Pty Limited v Commissioner of Patents [2024] FCA 987. On appeal, Aristocrat will argue that Justice Burley erred in applying the reason- ing of the Full Court plurality without considering the High Court judgment, and therefore erred in finding that the residual claims were not patent- able subject matter. Aristocrat now has the option of applying to the High Court to hear the appeal under Section 40(2) of the Judiciary Act. However, there is no guarantee the High Court will agree to hear the case, in which case the Full Court will hear the appeal. If the High Court does take on the case, it may choose to only address the proper effect of Section 23(2)(a) of the Judiciary Act, with- out considering the patentability of the residual claims. If it does choose to address the patent- ability issue, it is hoped that it will deliver some long-awaited clarity on this issue of computer- implemented inventions, following the uncertain- ty it left when it last considered the topic in 2022. Video evidence in patent cases – weight matters Video demonstration evidence is rare in patent cases in Australia. The recent decision in Vald
Pty Ltd v KangaTech Pty Ltd (No 5) [2024] FCA 333 illustrates the pitfalls of preparing evidence in the form of a demonstration. Vald Pty Ltd (Vald) sued KangaTech Pty Ltd (KangaTech) for infringement of its Australian patent relating to an apparatus for use in assess- ing hamstring strength while a person performs an eccentric knee flexor contraction exercise. Rather than adduce evidence to show that the KangaTech apparatus was being used by cus- tomers to perform the exercise, Vald relied upon expert evidence of Dr Tania Pizzari, a physio- therapist and academic. Dr Pizzari performed an inspection of the KangaTech apparatus, which was filmed by Vald’s solicitors. During the trial, new evidence emerged from Dr Pizzari about the circumstances surrounding her inspection of the KangaTech apparatus. Justice Downes was critical of Dr Pizzari’s evidence and the manner in which the video evidence was pre- pared, in particular: • the omission from Dr Pizzari’s evidence of the test subject’s lack of independence; • the omission that the test subject was not representative of “most people”; and • the fact that Dr Pizzari had never asked any- one to perform, on any other apparatus, the exercises she had asked the test subject to perform evidenced that the demonstrations were artificial and unlikely to be performed on the KangaTech apparatus. Justice Downes held that the facts that were not revealed until trial raised questions about the veracity of the video evidence and the conclu- sions which could be reached based on such evidence. They also raised questions about what other information surrounding the video
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