Federal Court of Australia
Federal Court of Australia
Boehringer Ingelheim Animal Health USA Inc. v Intervet International B.V. [2022] FCAFC 88 Appeal from: Application for leave to appeal: Boehringer Ingelheim Animal Health USA Inc. v Intervet International B.V. [2020] FCA 1333
File number: VID 662 of 2020
Judgment of: PERRAM, NICHOLAS AND BURLEY JJ
Date of judgment: 18 May 2022
Catchwords: PATENTS – where leave to appeal sought against primary judge's decision dismissing appeal from decision of delegate of the Commissioner of Patents rejecting opposition to patent application on ground that the invention as claimed did not involve an inventive step – whether primary judge erred in assessment of expert evidence – whether primary judge misapplied Cripps question – whether primary judge erred in having regard to characteristics or advantages of invention not referred to in the claims – whether in determining whether invention was obvious in light of common general knowledge and a patent specification published before the priority date the primary judge had insufficient regard to the common general knowledge – whether primary judge misunderstood oral evidence of appellant's expert witness in relation to patent specification Held: no relevant error established – application for leave to appeal dismissed
Legislation: Intellectual Property Laws Amendment (Raising the Bar) Act 2012 (Cth) Patents Act 1990 (Cth) ss 7(2), 7(3), 18(1)(b)(ii), 60(4), 158(2)
Cases cited: Aktiebolaget Hässle v Alphapharm Pty Ltd (2002) 212 CLR 411 AstraZeneca AB v Apotex Pty Ltd (2015) 257 CLR 356 Azuko Pty Ltd v Old Digger Pty Ltd (2001) 52 IPR 75 Genetics Institute Inc v Kirin-Amgen Inc (1999) 92 FCR 106 Lockwood Security Products Pty Ltd v Doric Products Pty Ltd (No 2) (2007) 235 CLR 173 Meat and Livestock Australia Limited v Branhaven LLC (2020) 281 FCR 640 Nichia Corporation v Arrow Electronics Australia Pty Ltd [2019] FCAFC 2 Wellcome Foundation Ltd v VR Laboratories (Aust) Pty Ltd (1981) 148 CLR 262
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