The Federal Court in MMD Design and Consultancy Limited v
Camco Engineering Pty Ltd [2019] FCA 1803 recently granted preliminary
discovery to a patentee, giving the patentee information about
repair works carried out on rock-breaking equipment used at mine
sites.
In granting preliminary discovery, O'Bryan J followed the
principles set out by the Full Federal Court in Pfizer Ireland
Pharmaceuticals v Samsung Bioepis AU Pty Ltd [2017] FCAFC 193 (Pfizer v
Samsung): an application for preliminary discovery
(under Rule 7.23 of the Federal Court Rules) will be
granted where a prospective applicant subjectively believes it
may have a right to obtain relief, and
that belief is, based upon the evidence, reasonably open, even if
it is contested. The prospective applicant is not required to
reasonably believe he or she actually has
the right to obtain relief. We comment further on Pfizer v
Samsung
here.
