MMD unsuccessful again on appeal in infringement case against Camco

MMD has been unsuccessful in its appeal of a decision of a primary judge of the Federal Court which held MMD’s patent valid but not infringed.

MMD’s patent AU2004289510 (MMD’s Patent) is directed to a tooth construction used in a mineral breaker for crushing mineral ore into smaller parts.  Camco initially provided repair services for these tooth constructions under contract with MMD, and then continued offering these repairs directly to MMD’s customers after the contract ended.

MMD brought proceedings alleging that Camco’s unauthorised repair services infringed MMD’s Patent, and that Camco contravened s 18 of the Australian Consumer Law by not informing customers about the existence of the patent.

Camco cross-claimed for revocation and also argued that the repair services were permissible under the exhaustion doctrine.  The exhaustion doctrine, as recognised under Australian law, provides that a patentee’s rights (other than the right of manufacture) are exhausted after the first authorised sale of the patented product anywhere in the world.  As a result, under Australian law, it is permissible for repairs to be made to a patented product after it is sold.

The primary judge found MMD’s Patent to be valid but not infringed, the non-infringement finding resulting from her claim construction.  However, the primary judge stated that, had infringement occurred, Camco would not have been able to rely on the repair defence as Camco’s activities amounted to a remaking (i.e. manufacture) of the invention.  We reported on that 2023 decision here.

The focus of the appeal was on whether the primary judge fell into error in her claim construction. The Full Federal Court upheld the primary judge’s construction, and therefore the finding of non-infringement.  In so doing, the Full Court emphasised the well-known principles of patent construction including the need to adopt a common-sense construction of the patent claims and that, if a claim is clear, it is not to be made obscure simply because obscurities can be found in particular sentences in other parts of the patent.  Consequently, MMD’s appeal was dismissed and Camco’s cross-appeal was also dismissed, with no consideration needed in respect of the repair defence.