Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Mont Adventure Equipment Pty Ltd v Phoenix Leisure Group Pty Ltd [2009] FCAFC 84
INTELLECTUAL PROPERTY – patents – divisional application –r 2.2(1A) Patents Regulations 1991 (Cth) – whether "prescribed circumstances" satisfied – statutory interpretation – meaning of "the filing date of the complete application" in r 2.2(1A) of the Patents Regulations Held: appeal allowed Acts Interpretation Act 1901 (Cth), s 15AB Patents Act 1990 (Cth), ss 7, 18, 23, 24, 29, 40, 43, 65, 67, 68, 79B, 79C Patents Regulations 1991 (Cth) rr 2.2, 2.3, 3.12, 6.3 ICI Chemicals & Polymers Ltd v The Lubrizol Corporation Inc 106 FCR 214; [2000] FCA 1349 referred to Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 referred to Nominal Defendant v GLG Australia Pty Limited (2006) 228 CLR 529; [2006] HCA 11 referred to Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 applied Secretary, Department of Health & Ageing v Nguyen (2002) 124 FCR 425; [2002] FCAFC 416 referred to R v Young (1999) 46 NSWLR 681; [1999] NSWCCA 166 referred to
MONT ADVENTURE EQUIPMENT PTY LTD ACN 001 305 291 v PHOENIX LEISURE GROUP PTY LTD ACN 073 884 983
NSD 1685 of 2008
EMMETT, BENNETT AND JAGOT JJ
7 JULY 2009
SYDNEY IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
General Division NSD 1685 of 2008
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN: MONT ADVENTURE EQUIPMENT PTY LTD
ACN 001 305 291
Appellant
AND: PHOENIX LEISURE GROUP PTY LTD
ACN 073 884 983
Respondent
JUDGES: EMMETT, BENNETT AND JAGOT JJ
DATE OF ORDER: 7 JULY 2009
WHERE MADE: SYDNEY
THE COURT:
1. Orders that the appeal be allowed. 2. Orders that the orders of the Court made on 2 October 2008, 18 November 2008 and 19 November 2008 be set aside. 3. Declares that, for the purpose of determining the validity of Australian Innovation Patent Number 2006100978, the filing date of the complete application, within the meaning of r 2.2(1A) of the Patents Regulations 1991 (Cth), is 13 May 2005. 4. Orders that the respondent pay the appellant's costs of the appeal, other than any additional costs incurred by reason of the intervention of the Institute of Patent and Trade Mark Attorneys of Australia (IPTA). 5. Orders that IPTA pay any additional costs incurred by reason of its intervention. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA
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