Case: Olin Corporation v Super Cartridge Co Pty Ltd [1977] HCA 23 ; (1977) 180 CLR 236
Outcome: followed
The University's case on infringement does not depend on any principles of purposive construction. Instead, the University claims that each of the integers of Claim 7 are literally present, in combination, in each of the NSI Products. The question of infringement is largely determined by reference to the proper construction of the claim: see Olin Corporation v Super Cartridge Co Pty Ltd [1977] HCA 23 ; (1977) 180 CLR 236 at 246 per Gibbs J. 73 NSI says that, if the University's construction of Claim 7 is correct, the NSI Products do not infringe the claim because there is no evidence that they include the relevant form of amorphous calcium phosphate, namely, stable, soluble and alkaline calcium phosphate. On the other hand, NSI says that, if its construction of Claim 7 is correct, the NSI Products do not infringe the claim because the complexes are not formed by using phosphopeptides deliberately extracted, isolated and purified. Further, to the extent that the phosphopeptides are created after formation of a complex of casein, calcium and phosphate, they are not formed by the phosphopeptide stabilising amorphous calcium phosphate as required by Claim 7. 74 It is therefore necessary to consider the evidence. 91 This test calls for consideration of whether the prior disclosure incorporates all of the integers of any of the claims: see Fresenius Medical Care Australia Pty Ltd v Gambro Pty Ltd [2005] FCAFC 220 at [128] - [152] . That is, the prior disclosure must reveal the totality of the invention and the antecedent information and must be such that a person of ordinary knowledge of the subject would perceive, understand and be able to practically apply the invention without needing to do experiments or obtain further information before the invention can be made useful: see Hill v Evans (1862) 4 De GF &amp; J 288 per Lord Westbury LC; Olin Corporation v Super Cartridge &amp; Co Pty Ltd [1977] HCA 23 ; (1977) 180 CLR 236 at 261 per Stephen and Mason JJ. In other words, the principal issue is whether the content and effect of the claimed anticipation is sufficient to destroy the element of novelty in the invention: see Pfizer-Overseas Pharmaceuticals v Eli Lilly &amp; Co [2005] FCAFC 224 at [311] - [324] . 209 Section 40 of the Act requires that a complete specification must be clear, succinct and fairly based on the matter described in the specification. NSI submits that the Complex Patent specification does not comply with these requirements. In Lockwood Security Products Pty Ltd v Doric Products Pty Ltd [2004] HCA 58 ; (2004) 217 CLR 274 at [69] , the High Court formulated the relevant question as being whether there has been a real and reasonably clear disclosure in the body of the specification of what is then claimed so that the invention is broadly or in a general sense described in the body of the specification. Another way that the question can be posed is to ask whether the claim travels beyond the disclosure in the specification: Olin Corporation v Super Cartridge Co Pty Ltd [1977] HCA 23 ; (1977) 180 CLR 236 at 240 per Barwick CJ.