Seafood Innovations Pty Ltd v Richard Bass Pty Ltd [2008] FCA 14 (9 January 2008)

SEAFOOD INNOVATIONS PTY LTD ABN 67 096 070 932 v RICHARD BASS PTY LTD ACN 010 643 197 AND RICHARD ROBERT BASS
QUD 422 OF 2007

SPENDER J
9 JANUARY 2008
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 422 OF 2007

BETWEEN:	SEAFOOD INNOVATIONS PTY LTD ABN 67 096 070 932 Applicant
AND:	RICHARD BASS PTY LTD ACN 010 643 197 First Respondent RICHARD ROBERT BASS Second Respondent

JUDGE:	SPENDER J
DATE OF ORDER:	9 JANUARY 2008
WHERE MADE:	BRISBANE

On the Court accepting the undertaking of the respondents to keep full and proper records of all sales, including the identity of the purchaser and the sale price, of the fish stunning machines MT5 and RB6 produced and sold by the respondents.

THE COURT ORDERS THAT:

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD 422 OF 2007

BETWEEN:	SEAFOOD INNOVATIONS PTY LTD ABN 67 096 070 932 Applicant
AND:	RICHARD BASS PTY LTD ACN 010 643 197 First Respondent RICHARD ROBERT BASS Second Respondent

JUDGE:	SPENDER J
DATE:	9 JANUARY 2008
PLACE:	BRISBANE

1 So far as my reasons for declining to grant the interlocutory injunction, the principles have recently been referred to by Gleeson CJ and Crennan J in Australian Broadcasting Corporation v O’Neill (2006) 277 CLR 57.

2 The applicant is the owner of Australian Innovation Patent 2006-1009-80 for a fish stunning apparatus for the term of eight years commencing on 3 December 2003. Claims 1 and 5 of that patent are alleged by the applicant to be infringed by two fish stunning machines designated MT5 and RB6, which are produced and sold by the first respondent.

3 The feature of those machines which is said to be the centre of the infringement claim is the feature identified as a "chin plate" by the respondents, and the question is whether that integer is an infringing variant of the integer of a "pivotably moveable floor", which is referred to in claims 1 and 5 of the applicant’s patent.

4 The evidence before me establishes that there is a serious question to be tried as to whether the fish stunning machines of the first respondent infringe claims 1 and 5 of the applicant’s patent. For the applicant, Dr Gilmore asserts that there is infringement. Mr Finney, for the respondent, is of a contrary view.

5 The written submissions by both parties, which I have to say have been helpful in this matter, go at some length to argue the merits of the infringing claims, or the defence of the infringing claims. Nonetheless that is not a question which falls for determination at the interlocutory stage, and I want specifically to say that, in declining to grant the interlocutory injunction, I make no finding one way or another as to the question of infringement.

6 It is plain from the reports of Mr Finney and Dr Gilmore that there is a serious question to be tried as to whether the chin plate, as part of the first respondent’s fish stunning machines, constitutes an infringement of claims 1 and 5 of the applicant’s patent.

7 The essential question is where the balance of convenience lies and, in particular, whether it has been demonstrated by the applicant that damages would be an inadequate remedy.

8 My view is that the evidence suggests that the applicant has been successful in exploiting its patent, the evidence indicating that some 200 units have been marketed, and it is said that the device is a high-profit machine. On the other hand, it is said that only five of the alleged infringing units have been sold by the first respondent, although there is an expectation of further sales.

9 It is deposed, but without any detail, that the grant of an interlocutory injunction would impact in a very material way on the business of the first respondent and in particular a number of employees would lose their employment. On the other hand, it is said that unless an injunction is granted, then there will be the loss of the opportunity in the applicant to grow its business by the exploitation of its patent and the conduct of the respondents might have the effect of eating into the viability of the business which the applicant has thus far established.

10 In matters where there is commercial competition between competitors, it is a big thing to require a business to be substantially reduced or prevented completely.

11 In the circumstances, it seems to me that the rights of the respective parties on the material presently available to me, and without making any final determination of the merits of the issues, will best be served by the court accepting the undertaking offered by the respondent to keep full and proper records of all sales, including the identity of the purchaser and the sale price, of the fish stunning machines MT5 and RB6 produced and sold by the respondents.

12 For these reasons, the application by the applicant for interlocutory relief is dismissed. It seems to me that the appropriate order as to costs is to have the costs of the interlocutory application be the respondents’ costs in the principal proceedings, but I will hear the parties in relation to that proposed costs order.

13 On the application for interlocutory relief the orders that I make are the application for interlocutory relief is dismissed and the costs of that application are adjourned to 9.30 am on 6 June 2008.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

Counsel for the Applicant:	Mr J O’Sullivan

Solicitor for the Applicant:	Bennett & Philp Solictors

Counsel for the First and Second Respondent:	Mr J Horton

Solicitor for the First and Second Respondent:	ABKJ Lawyers

Date of Hearing:	9 January 2008

Date of Judgment:	9 January 2008

Federal Court of Australia

Seafood Innovations Pty Ltd v Richard Bass Pty Ltd [2008] FCA 14 (9 January 2008)