Jonker v Platform Solutions Pty Ltd  FCA 237 (15 March 2012)
Interlocutory injunction – strength of prima facie case of infringement – strength of prima facie case of invalidity – irreparable injury – balance of convenience
A Federal Court judge has granted a preliminary injunction against a Brisbane-based supplier of industrial work platforms and telehandlers after one of the company’s directors told a patent-holder to ‘just do what you want’ because ‘patents aren’t worth the paper they’re written on.’
In retrospect – and particularly in the year that Apple managed to keep Samsung’s Galaxy Tab 10.1 out of the Australian market for four months based on its patent rights – this seems like a brave challenge. In the event, it has cost Mitchell Ely and his company Platform Solutions Pty Ltd a trip to the Federal Court, where they have been unsuccessful in defending against an application for an urgent interlocutory injunction brought by John Jonker and his company Jonker Plant Hire Pty Ltd. The injunction will prevent Platform Solutions from commercially exploiting a mobile lighting apparatus said to infringe an innovation patent owned by Mr Jonker.
To a considerable extent, Ely was his own worst enemy in this case. His response to initial contact from Jonker became the primary basis for the court’s finding that there was a sufficient probability of patent infringement to support an injunction. There is a lesson in this about the dangers of making any form of reply to a threat of patent infringement proceedings without the benefit of legal advice.