Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Genetics Institute Inc v Kirin-Amgen Inc [1999] FCA 742 PATENTS – whether an application for leave to appeal to the Full Federal Court under subs 158(2) of the Patents Act 1990 (Cth) should be allowed – the principles to be applied in determining applications for leave to appeal under subs 158(2) – whether the terms "leave to appeal" and "special leave to appeal" in s 158 are generic terms or whether they denote different tests for the granting of leave by a court – whether issue estoppel principles can be relied on in a revocation proceeding to prevent the court from redetermining issues of fact already determined in a pre-grant opposition - whether the applicant had established a case of clear prima facie error in the decision from which leave to appeal was sought such that the likely effect of that decision would be to allow an invalid patent to proceed to grant. WORDS AND PHRASES – "leave to appeal", "special leave to appeal"
Patents Act 1952 (Cth) s 40, s 59, subs 60(5) Patents Act 1990 (Cth) subs 60(4), subs 158(2), subs 158(3) Decor Corporation v Dart Industries (1991) 23 IPR 1 considered Genetics Institute Inc v Kirin-Amgen Inc (No 2) (1997) 149 ALR 247 considered Imperial Chemical Industries Limited (Haggis') Application [1975] RPC 403 considered Morris v The Queen (1987) 163 CLR 454 considered
GENETICS INSTITUTE INC v KIRIN-AMGEN INC VG 404 OF 1998 JUDGES: BLACK CJ, MERKEL & GOLDBERG JJ DATE: 7 JUNE 1999 PLACE: MELBOURNE
GENERAL DISTRIBUTION
IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG 404 OF 1998
BETWEEN: GENETICS INSTITUTE INC
APPLICANT AND: KIRIN-AMGEN INC
RESPONDENT
JUDGES: BLACK CJ, MERKEL & GOLDBERG JJ DATE OF ORDER: 7 JUNE 1999 WHERE MADE: MELBOURNE
THE COURT ORDERS THAT: 1. The application for leave to appeal be dismissed. 2. The applicant pay the respondent's costs of the application, including any reserved costs.
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