On the question of clarity, it was argued that the terms “substantial portion” and “narrow waisted”, appearing in claim 1, were sufficiently imprecise as to render the claims lacking in clarity. Having regard to the nature of the invention the claims sought to define, and the evidence of experts led by the parties the Court concluded that the claims were clear, concluding, with reference to Martin v Scribal Pty Ltd (1954) 92 CLR 17, that:

Austal’s argument fails to take account of the fact that, as in Martin, Stena’s invention involved an idea which “involves a matter of degree and for that reason any distinction that is precise must be but an arbitrary restriction on the inherent variability of the feature…”

On the question of infringement, the appeal was also dismissed. The Court held that the Austal 94 hull did not fall within the scope of claim 1 because that claim required that the width of the hull continually decrease in the forward direction, whereas the width of the Austal 94 hull actually increased slightly over the first 10% of its length. Curiously however the Court held that the Austal 94 hull did fall within the scope of claim 7, which was dependent on claim 1, but further required that the width of the hull be substantially constant in the sternward quarter of the vessel. Despite claim 1 being incorporated by reference into claim 7, the Court considered that the two requirements as to width were “true alternatives” stating 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.

In 2003, Edwards had obtained registration, in his own name, of two trade marks used by his then employer (who subsequently assigned its intellectual property rights to Liquid Engineering).

Liquid Engineering’s application for removal under section 92, alleging that Edwards did not intend, and had not used the trade marks in good faith, was allowed by the delegate of the Registrar of Trade Marks. Edwards appeal that decision.

Gordon J, minded to allow the appeal “on the basis that “good faith” for the purposes of s 92(4) requires no more than genuine intent to use a mark for commercial purposes; it does not involve any element of honesty or subjective good intentions” nevertheless delayed giving judgement in the appeal to allow Liquid Engineering to bring an application before the Court under section 88 on the basis that Edwards was not the owner of the trade marks, which her Honour, having heard the evidence, apprehended was the more appropriate means of dealing with the dispute.

Ultimately, it was determined that the trade marks were held by Edwards on trust for Liquid Engineering and Gordon J directed that the register of trade marks be amended to record Liquid Engineering as the true owner. However, despite Liquid Engineering’s argument that the initial section 92 action before the Trade Marks Office was appropriate as a lower cost alternative to Court proceedings, her Honour ordered that Liquid Engineering pay Edwards costs of the appeal, stating that:

“Parties should not be encouraged to bring inapposite claims on the grounds that they are cheaper; such a strategy may, as this case shows, backfire and if that occurs, it will result in more costs being incurred than if the best claim was brought in the first place.”