National Starch & Chemical Company v Commissioner of Patents [2001] FCA 33

FEDERAL COURT OF AUSTRALIA

National Starch & Chemical Company v Commissioner of Patents [2001] FCA 33 PATENTS – review of decision of delegate of Commissioner of Patents – opposition proceedings – refusal of application for an extension of time for filing evidence – whether improper exercise of power – whether failure to take relevant considerations into account – whether delegate required explanation for delay in filing evidence as precondition to granting extension of time – whether failure to give proper, genuine and realistic consideration to public interest in determining serious opposition on its merits – whether failure to give proper, genuine and realistic consideration to nature and significance of evidence for which extension of time sought – whether error of law – whether delegate applied test of determining whether opposition would be rendered untenable if extension of time was not allowed. Administrative Decisions (Judicial Review) Act 1977 (Cth): ss 18, 40, 59 Patents Act 1990 (Cth): ss 40(2), 40(3) Patents Regulations 1991 (Cth): rr 5.8, 5.10(2), 5.10(5)(c) Ferocem Pty Ltd v Commissioner of Patents (1994) 49 FCR 205 considered A Goninan & Co Ltd v Commissioner of Patents (1997) 75 FCR 2000 applied Hindi v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 1 referred to Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 referred to Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39 applied F Hoffman‑La Roche AG v New England Biolabs Inc (2000) 99 FCR 56 referred to NATIONAL STARCH AND CHEMICAL COMPANY v COMMISSIONER OF PATENTS & ORS V 415 of 2000 GOLDBERG J 2 FEBRUARY 2001 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 415 of 2000

BETWEEN: NATIONAL STARCH AND CHEMICAL COMPANY