Federal Court Determines That “Double Patenting” Is Not a Basis for Revocation

Case Note: Britax Childcare Pty Ltd v Infa-Secure Pty Ltd [No 3] FCA 1019


Relief for infringement available before publication of any Divisional Innovation Patent.

This case concerned alleged infringement of several innovations patents derived from a standard parent application.

The patents-in-suit were:

  • A parent standard patent application concerning a safety seat tether strap for children in a car that never proceeded to grant.
  • Several divisional innovation patents that were born of the parent standard application.
  • There were 10 patents in total on which Britax claimed infringement.

The trial judge, Justice Middleton dealt with the construction of the claims in a separate judgement (Britax Childcare Pty Ltd v Infa-Secure Pty Ltd [No 2] FCA 1018).

In this judgement, the Court dealt with the construction of the Patents Act and Regulations to determine the date from which infringement takes place.

The Court held that the earliest date that a standard patent may be said to be infringed is the date that the application and specification of the standard patent are published. However, with respect to the innovation patents that were children to the parent standard application, his Honour held that the date on which these patents may be infringed is the date that they are filed.

The effect of this decision is to give a certified granted divisional innovation patent a reach well before it was even filed. This reach extends to a time possibly prior to any publication of the specifications against which an infringer will be held to account.

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