Fuchs Lubricants v Quaker [2021] FCAFC 65

Quaker held a patent for detecting injuries caused by  hydraulic fluid under pressure penetrating a worker.  Sued for infringement, Fuchs said the patent was invalid for breaching ‘reasonable trial’ provisions in the legislation9.  One argument Fuchs put meant that regulations would prevail over the Act.

The court (at [166]) said regulations ‘cannot inform or dictate the proper construction of an Act’.  Even where there is a ‘legislative scheme’, regulations cannot expand or rewrite the Act ‘absent clear stipulation in the principal legislation elevating the status of the subordinate instrument’10.  Fuchs failed here, but the patent was invalid on other grounds.

This principle is from Episode 74 of interpretation NOW!


9 s 24(1)(a) Patents Act 1990, reg 2.2(2)(d) Patents Regulations 1991.

10 Plaintiff M47 [2012] HCA 46 (at [56]), Lundbeck [2017] FCA 56 (at [87]).