Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Ajinomoto Co Inc v NutraSweet Australia Pty Ltd [2008] FCAFC 34
PATENTS ‑ validity ‑ inventive step ‑ whether invention obvious to a person skilled in the art in light of the common general knowledge at the priority date ‑ proper construction of ss 7(2) and 7(3) of the Patents Act 1990 (Cth) ‑ prior art information made publicly available ‑ information that skilled person would be reasonably expected to have ascertained, understood and regarded as relevant to work in the relevant art in the patent area ‑ evidence of work in Australia ‑ work in closely related areas ‑ blending ‑ artificial sweeteners ‑ whether evidence supported conclusion that it had been shown to be obvious
Held: The appellant's patent does not satisfy the test for inventive step pursuant to s 18 of the Patents Act 1990 (Cth). Evidence of work in Australia need only be closely related to the relevant art in the patent area.
Patents Act 1990 (Cth) ss 7(2) and (3), 18
Acme Bedstead Co Ltd v Newlands Brothers Ltd (1937) 58 CLR 689, cited Allina Pty Ltd v Federal Commissioner of Taxation (1991) 28 FCR 203, cited and considered Cape Brandy Syndicate v Inland Revenue Commissioners [1921] 2 KB 403, cited Catnic Components Ltd v Hill and Smith Ltd [1982] RPC 183, cited CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, cited Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, cited Gambro Pty Ltd v Fresenius Medical Care South East Asia Pty Ltd (2004) 61 IPR 442, cited and considered Grain Elevators Board (Vic) v Dunmunkle Corporation (1946) 73 CLR 70, cited and considered Harris v Repatriation Commission (2000) 62 ALD 161, cited Hepples v Federal Commissioner of Taxation (1991) 173 CLR 492, cited Hooker v Gilling (2007) 48 MVR 136, cited HPM Industries Pty Ltd v Gerard Industries Ltd (1957) 98 CLR 424, cited Hunter Resources Ltd v Melville (1988) 164 CLR 234, cited and considered Interlego AG v Croner Trading Pty Ltd (1992) 39 FCR 348, cited Lockwood Security Products Pty Ltd v Doric Products Pty Ltd (No 2) (2007) 235 ALR 202, cited, considered and distinguished Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565, cited Minnesota Mining and Manufacturing Company v Beiersdorf (Australia) Ltd (1980) 144 CLR 253, cited and considered Mullard Radio Valve Co Ltd v Philco Radio and Television Corp of Great Britain Ltd (1936) 53 RPC 323, cited NSI Dental Pty Ltd v University of Melbourne (2006) 69 IPR 542, cited and considered NutraSweet Australia Pty Ltd v Ajinomoto Co Inc (No 3) [2007] FCA 966 NutraSweet Australia Pty Ltd v Ajinomoto Co Inc (2005) 224 ALR 200 Ormond Investment Co v Betts [1928] AC 143, cited and considered Sun World Inc v Registrar, Plant Variety Rights (1997) 75 FCR 528, cited Vickers, Sons & Co Ltd v Siddell (1890) 7 RPC 292, cited
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