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Windsurfing v Petit - Judgment 28-Jun-84

Windsurfing v Petit - Judgment 28-Jun-84

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Published by dulhunty
Windsurfing International Inc & Anor -v- Petit & Anor (No 3079 of 1981)
Windsurfing International Inc & Anor -v- Borsimex Pty Limited (No 2135 of 1982)
In the Supreme Court of New South Wales - Equity Division
Coram: Waddell, J.
Judgment
Windsurfing International Inc & Anor -v- Petit & Anor (No 3079 of 1981)
Windsurfing International Inc & Anor -v- Borsimex Pty Limited (No 2135 of 1982)
In the Supreme Court of New South Wales - Equity Division
Coram: Waddell, J.
Judgment

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Published by: dulhunty on Aug 25, 2012
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08/26/2012

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,,
.
;
/
IN
THE
SUPREME
COURT
/.
-bF
NEW
SOUTH
WALES
EQUITY
DIVISION
No.
3079
of
1981
No.
2135
of
1982
CORAM:
WAD
DELL,
J.
Thursday, 28th
June
1984.
WINDSURFING INTERNATIONAL
INC.
&
ANOR.
-v-
PETIT
&
ANOR.WINDSURFING INTERNATIONAL
INC.
&
ANOR.
-v-
BORSIMEX
PTY. LIMITED
JUDGMENT
HIS
HONOUR:TABLE OF CONTENTSINTRODUCTION
Nature
ofproceedings
Specification
The
claims
Combination
patent
Differences
INFRINGEMENT ..GENERALMRS.
PETIT
SALE
IN
KIT
FORM
Introduction
The
law
Conclusion
i.
1
26
788
9
1010
11
16
 
\7
~
-,,v
/'
/
)'.
/
CLAIM
1
rn'troduction
Construction
/
Plurality
of
axes
Defendants'
joints
Figure
2
joint
Principles
of
interpretation
Dictionary
meanings
Technical
evidence
Literal
meaning
Specification
Conclusion
CLAIMS
2 -7
CLAIM
8
CLAIM
9
CLAIM
10
Introduction
Law
Conclusions
VALIDITY
SUMMARY
LACK
OF NOVELTY
Introduction
Law
Darby
Eastaugh
Evidence
in
chief
Challenge
to
credibility
Inconsistencies,
exaggerations,
etc.
The
MacFarlanes
Meeting
with
Kelly
and
Dulhunty
Sailing
to
windward
Corroboration
Other
matters
Anticipation
Pear
sonGeorge
.
Morris
OBVIOUSNESS
Law
Darby
Other
prior
uses
General
common
knowledge
Conclusion
CONCLUSIONS
ii.
16
16
1717
17
18
19
2223
28
31
33
35
3536
3737
41
4649
5050
51
57
6969
75
76
82
8691
105
105
108110112
114116116
117
118
119
120
122
- ~ - - - ~ ~ - - - - - ~ - ~ - - - - - ~ - - - ~ - ~ - ~ ~ - -
 
\I
INTRODUCTION
Nature
of Proceedings.
Two
proceedings
have been
heard
together
by
consent.
Each
of
them
is
a
claim
for
injunctive
relief
and
damages
in
respect
of
a
convention
patent,
the
complete
specification
of
which
is
entitled
"Wind
Propelled
Apparatus".
The
patent
was
originally
granted
in
the
United
States,
to
Henry Hoyle
Schweitzer
and James
Robert Drake,
and
is
generally
called
"the
Schweitzer
patent".
The
Australian
patent
was
granted
on
14
March
1975,
its
priority
date
being
·27
March
1968,
the
date
of
making
of the basic
application.
The
first
plaintiff,
Windsurfing
International
Inc.,
a
cQrporation
organised
and
existing
under
the
laws
of
the
State
of
California
in
the
United
States
of
America,
is
the
proprietor
of
the
patent
by
assignment
from
the
original
inventors.
The
second
plaintiff,
Sailboards
Australia
Pty.
Limited, claims
at
all
material
times
to
have
been
an
exclusive
licensee
of
the
patent
in
Australia
and
if
so
may,
of
course,
bring
proceedings
for
infringement.
The
complete
specification
commences
by·
saying:-
"The
field
of
art
to
which
the
invention
pertains
includes
the
field
of
ships,
particularly
sail
boats
and
ice
boats,
and
the
field
of
land
vehicle
sail
attachments."
So
far
as
the
proceedings
are
concerned
the
commercial
importance
ofthe
patent
lies
in
its
application
to
sail-
boards.
Sailboards
Australia
hashad,
for
some
years,
a
1.

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