Atlantis Corporation Pty Ltd v Schnidler (No3) [2000] FCA 1758

FEDERAL COURT OF AUSTRALIA

Atlantis Corporation Pty Ltd v Schindler (No 3) [2000] FCA 1758 PATENTS – jurisdiction of appellate court to direct amendment of patent under subs 105(1) of Patents Act 1990 (Cth) – appellate court had previously made orders disposing of appeal, but reserving liberty to apply – whether proceeding satisfied description of a pending proceeding for infringement or for revocation of the patent or in which the validity of the patent "is" in question for purposes of definition of "relevant proceedings" in Schedule 1 to Patents Act 1990 (Cth) PATENTS – priority date of claim – whether claim fairly based on matter disclosed in provisional specification – claim more limited than anything disclosed in provisional specification – mandatory integer in claim inconsistent with one of the embodiments in provisional specification – held claim not fairly based on matter disclosed in provisional specification Patents Act 1990 (Cth) ss 105(1), 112, Schedule 1 ("relevant proceedings")

Coopers Animal Health Australia Ltd v Western Stock Distributors Pty Ltd (1987) 15 FCR 382 (FC) referred to ATLANTIS CORPORATION PTY LIMITED & ANOR v PETER SCHINDLER & ORS NG 284 of 1997 WILCOX, LINDGREN JJ 6 DECEMBER 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 284 OF 1997

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF NEW SOUTH WALES

BETWEEN: ATLANTIS CORPORATION PTY LIMITED (ACN 003 233 681)

FIRST APPELLANT

HUMBERTO URRIOLA

SECOND APPELLANT

AND: PETER SCHINDLER

FIRST RESPONDENT

INNOVATECH (AUSTRALIA) PTY LIMITED (ACN 002 287 023)

SECOND RESPONDENT

DESINAN SERVICES PTY LIMITED (ACN 057 580 793)