Fanca Technologies Pty Ltd v CFH Airtechnic Australia Pty Ltd

This case came before the Federal Court in an existing patent infringement proceeding about specialised dust-removal machinery used in tunnelling projects. The applicants were Fanca Technologies Pty Ltd, as patent owner, and Grydale Solutions Pty Ltd, as exclusive licensee. They alleged that the respondents, a group of CFH entities, were manufacturing and or supplying large dust-removal machines to Australian customers in a way that infringed their patent.

The patent was said to cover a particular machine configuration: a dust removing machine with a fan assembly mounted on a single frame and a drive mechanism on tracks or wheels. The parties called that configuration the impugned product. Two machines had been identified on Sydney infrastructure projects, one at Arncliffe on the M6 Stage 1 project and another at Five Dock on the Sydney Metro West Project.

The commercial difficulty was that the machines were modular. They could be supplied or configured in different ways depending on project requirements. A machine might have a fan assembly on a single frame or on a separate frame. It might be mounted on skids, tracks or wheels. Because of that, the applicants could not always tell from the machine as seen on site whether the respondents had supplied it in the allegedly infringing form or whether the customer had assembled that form later by adding components.

That uncertainty mattered because the legal theory changes depending on who did the assembly. If the respondents supplied the final impugned product, the case is one of direct infringement. If the customer assembled the final configuration after purchase, the applicants needed alternative theories such as authorisation, joint tortfeasor liability or supply-based infringement under s 117 of the Patents Act.

This was an interlocutory decision. The Court was not deciding whether the patent was valid, whether the respondents had in fact infringed it, or what damages or other relief might ultimately be available. The immediate issue was procedural: should the applicants be given leave to amend their amended originating application and amended statement of claim?

The respondents consented to some amendments but objected to others. Their objections focused on four areas. First, they said one part of the pleading defined impugned products too broadly and included hypothetical products. Secondly, they challenged the authorisation case. Thirdly, they challenged the joint tortfeasor case. Fourthly, they challenged parts of the s 117 case, especially whether the particulars were capable of supporting the pleaded inferences.

At this stage, the Court's task was to decide whether the proposed pleading gave fair notice of the case and raised triable issues of fact. That is a lower and different question from whether the applicants would ultimately prove infringement at trial. The judgment is therefore best read as a decision about pleading sufficiency and litigation structure, not as a final ruling on patent liability.

The applicants pleaded two broad classes of infringement case. The first class was direct infringement. In that version of events, the respondents themselves supplied the impugned products, meaning machines already configured with a fan assembly on a single frame and a drive mechanism on tracks or wheels.

The second class covered three alternative cases for the possibility that the customer, not the respondents, assembled the final configuration after purchase. Those alternatives were:

First, authorisation. The applicants alleged that the respondents authorised their Australian customers to assemble and use the machines in the allegedly infringing configuration. The judgment notes that the right to authorise exploitation of a patented invention is part of the patentee's monopoly under s 13 of the Patents Act, so authorising another person to infringe can itself amount to infringement.

Secondly, joint tortfeasor liability. The applicants alleged that the respondents and their Australian customers were parties to a common design to infringe the patent claims.

Thirdly, supply-based infringement under s 117 of the Patents Act. The applicants advanced separate cases under s 117(2)(a), (b) and (c). The judgment explains that the s 117 pleading was directed at four categories of products, ranging from the dust removing machine alone through to the full impugned product.

Each indirect infringement case was pleaded further or in the alternative. That mattered because the applicants were not saying every machine followed the same pathway. Their case allowed for the possibility that one machine may have been supplied in infringing form by the respondents while another may have been assembled by the customer after supply.

The respondents argued that the authorisation case should fail because the applicants had not identified any specific instance of an Australian customer buying one of the respondents' machines and then fitting it with the necessary components to create the impugned product. Perram J rejected that argument.

The judge reasoned that, because the authorisation case was pleaded in the alternative to the direct infringement case, the logic of the accepted dichotomy answered the point. If the respondents did not supply the machines in the infringing configuration, then on the applicants' alternative case it was the customer who assembled them. In that context, the primary infringement said to have been authorised was pleaded with sufficient clarity.

The respondents also argued that the applicants had pleaded no authorising conduct beyond mere supply of the machines. The Court again rejected that submission at the pleading stage. The applicants relied on two manuals. One was a manual by the third respondent for assembly, start-up, operation, servicing, maintenance, disassembly and disposal of a dust collection system. The other was a manual by the first respondent providing information and instructions for operation of a deduster track system.

The Court held that these manuals made it a triable issue whether the respondents provided their dust removing machines in a way that allowed customers to fit them with accessories, including fan systems, frames and tracks, and use them in an allegedly infringing manner. The judge noted that the manuals included instructions for use and depictions of the impugned products. One manual described important components, including the fan and track system, as optional. The other appeared to depict an impugned product using tracks manufactured by a named third party.

The respondents argued that this was still far from showing a kit-of-parts or LEGO-type approach. The judge accepted that the submission had some force, but said it sat uneasily with the respondents' acceptance that the impugned products were either assembled by the respondents or by their Australian customers. At the pleading stage, available inferences had to be drawn in the applicants' favour.

The same challenges were made to the joint tortfeasor case, and the Court rejected them for the same reasons. So both the authorisation and joint tortfeasor allegations were allowed to proceed.

The s 117 part of the case was more detailed. The judgment explains that the applicants defined four categories of Section 117 Products: the dust removing machine alone, the machine fitted with a fan assembly, the machine fitted with a fan assembly on a single track, and the full impugned product.

The respondents argued that the s 117 cases relating to the impugned products were redundant because they overlapped with the direct infringement case. The Court rejected that submission because the s 117 cases were pleaded in the alternative. Overlap did not make them impermissible at this stage.

The respondents challenged only the cases under s 117(2)(b) and (c), not the case under s 117(2)(a). For the s 117(2)(b) case, the applicants alleged that the respondents had reason to believe Australian customers would use the machines with a fan assembly on a single frame and with a drive mechanism on wheels or tracks in an infringing manner.

To support that allegation, the applicants relied in part on requests for tender produced in discovery and tendered at the hearing. These included requests for tender for dust scrubbers or air scrubbers for Sydney and Victorian tunnel projects. The documents referred to mobile dust removing machines equipped with fans, and in one case equipment mounted on a skid or on tracks for mobility. The Court said it could be inferred from these documents that customers wanted dust removing machines with fans and a drive mechanism. The position on the single frame was less clear, but the judge was still satisfied that there was a triable issue on whether the requests for tender could support an inference that the respondents had reason to believe their machines would be purchased and then assembled with other components in a way that infringed the patent.

The Court also accepted that the same manuals relied on for authorisation could support the s 117 case. However, the Court was not prepared to draw the same inference from all website materials relied on by the applicants. The judge said those materials showed the scope of the respondents' product and service offerings in Australia and supported the proposition that dust removing machines and fans were sold separately, but did not support the broader proposition that the respondents therefore had reason to believe Australian customers would assemble and use the impugned products after purchasing the pleaded Section 117 Products. That particular was therefore only permitted in a limited way.

For the s 117(2)(c) case, the respondents argued that the particulars could not support an allegation that they instructed or induced Australian customers to use the Section 117 Products to infringe. The Court rejected that submission in part. Particular (i), which repeated the s 117(2)(b) particulars, was allowed to the same extent as above. But proposed particular (ii) to paragraph 23 was not allowed. The judge said the cross-referenced matters did not appear to support an allegation that the respondents induced or instructed customers to assemble an impugned product from parts sold by the respondents and other manufacturers.

One of the respondents' main objections concerned the way the applicants described some of the impugned products. The pleading referred not only to the machines at Arncliffe and Five Dock, but also to a broader class of machines shown in photographs and publications. Some of those photographed machines met the criteria for an impugned product and some did not.

The applicants' position was that the photographs were being used to define a class of potentially infringing products. In other words, they were not saying every photographed machine already infringed. They were saying that any of the respondents' dust removing machines depicted there could form part of the impugned class if fitted with a fan assembly on a single frame and a drive mechanism on tracks or wheels.

The Court accepted that this was the intended meaning of the pleading and held that it was tolerably clear. Perram J rejected the argument that the pleading was ambiguous, embarrassing or concerned merely hypothetical configurations. Given the information asymmetry between the parties, it was enough at the pleading stage that the applicants had identified an allegedly infringing configuration, pleaded two specific examples of that configuration, and relied on additional materials to show that other products meeting that configuration were sold.

The judge also observed that interrogatories could provide a practical way to identify all dust removing machines supplied with the relevant configuration and to clarify whether the respondents supplied the machines at Five Dock and Arncliffe. The Court did not require that level of detail immediately, but indicated that after discovery the applicants should be required to particularise each impugned product they allege infringes, or explain why that should not yet be required.

The first point is to keep the decision in its proper lane. This was a pleadings ruling. It does not establish that the respondents infringed the patent. It establishes that most of the applicants' proposed allegations were sufficiently pleaded to go forward.

The second point is that modularity can widen the factual and legal inquiry in a patent dispute. A supplier may think the critical question is whether it delivered a complete machine in the final form. This case shows that the analysis may also extend to whether the supplier enabled, contemplated, authorised or had reason to believe that customers would add components and use the product in a patented combination.

The third point is that documents and conduct around the sale can matter. The Court treated manuals, optional component references, depictions of product configurations and project tender documents as capable of supporting pleaded inferences. That means businesses should think carefully about what their manuals show, what options are described as available, how accessories are marketed, and what project-specific requirements are known at the time of supply.

The fourth point is record-keeping. The judgment highlights the information gap that can exist between a patent owner and a supplier. Good records about product variants, optional extras, customer-specific configurations, installation responsibility and post-sale assembly can help narrow disputes early. They may also help a business show what it did and did not supply.

The fifth point is organisational structure. The respondents were a group of related companies. In practice, patent disputes often involve overseas manufacturers, local subsidiaries, distributors and end customers. Businesses should be clear internally about who manufactures, who supplies, who provides manuals, who responds to tenders and who supports installation or commissioning in Australia.

The judgment was delivered by Perram J on 15 August 2025 in the Federal Court of Australia. The hearing took place on 28 March 2025. The orders granted the applicants leave to amend their amended originating application and most of their amended statement of claim, except for proposed particular (ii) to paragraph 23.

The applicants were ordered to pay the respondents' costs thrown away, if any, in respect of the amended pleadings, with other costs to be costs in the cause. Because this was an interlocutory ruling, the broader patent proceeding continued after this decision.

The source is the Federal Court of Australia decision in Fanca Technologies Pty Ltd v CFH Airtechnic Australia Pty Ltd [2025] FCA 953. The judgment is a procedural ruling on leave to amend pleadings in a patent case. It should be used as guidance on pleading sufficiency, alternative infringement theories and the kinds of materials that may support a triable case at an early stage.

It should not be read as a final determination that infringement occurred, that the patent is valid, or that any particular remedy will be awarded. Those issues, if contested, would need to be determined later in the proceeding.