Austal Ships Sales Pty Ltd v Stena Rederi Aktiebolag 
FCAFC 121 (3 July 2008)
In a recent decision, the Full Federal Court presided over the
next instalment in the long running dispute between Stena and
Austal Ships regarding multi-hulled vessels. The decision was an
important one in regards to the Court's approach to issues
relating to Section 40 of the Patents Act 1990 'the
Act' and is one of a number of current high profile cases
decided in favour of the patentee.
At first instance, the respondent 'Stena' alleged that a
group of ship building companies, collectively known as
'Austal', had infringed their Australian Patent No. 648624
('the patent'), entitled 'A Hull Structure for
Multi-Hull Ships'. Austal, by cross-application, sought
revocation of the patent on the grounds of lack of novelty,
obviousness and/or failure to comply with the requirements of
Section 40 of the Patents Act 1990 'the Act' that
the claims be clear. Tamberlin J held at first instance that one of
Austal's vessels infringed Stena's patent while rejecting
Austal's cross-claim for revocation. On appeal, Austal sought
to overturn this decision, maintaining the objection to the patent
for lack of clarity as well as the decision on infringement.
The case in general turned on the construction of the claims,
and, in particular, whether the claims were clear. It was argued by
Austal that the terms 'substantial portion' and 'narrow
waisted' of claim 1 could not be resolved by a skilled
addressee so as to provide a commonsense assessment or
understanding of the claims. Having regard to the nature of
the invention that the claims of the patent sought to define, and
taken expert evidence from both parties into account, the Full
Federal Court concluded that the claims were clear. The Court
placed emphasis on the proposition that the clarity of a patent
involves a matter of degree and for that reason any distinction
that is precise must be an arbitrary restriction on the inherent
variability of the feature, with reference to precedent case
The appeal against the infringement finding was also dismissed.
Based on an understanding of a person skilled in the art, the Court
held that Austal's hull in question did not fall within
the scope of claim 1 of the patent. Claim 1 required that the width
of the hull continually decrease in the forward direction,
whereas the width of Austal's hull increased slightly
over its initial length when moving in a forward direction.
Interestingly, however, the Court found that the Austal hull
did fall within the scope of claim 7 (dependent on claim 1)
that had the further limitation that the width of the hull is
substantially constant in the sternward quarter of the vessel.
Despite the dependence on claim 1, the Court found that:
For the purposes of claim 7..., notwithstanding the increase
in width by 147mm, the sternward quarter of the Austal 94 was
Based on evidence of expert witnesses from both sides, the Court
determined that claim 7 was a 'true alternative' to claim
1. The Court further noted that:
There is no requirement of patent law that subsequent claims
narrow the scope of earlier claims, even though, as a matter of
practice, this is often the case.
The outcome of this case reinforces that the degree of precision
outlined in the patent claims is in keeping with the understanding
of a person skilled in the art.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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