Iluka Midwest Ltd v Technological Resources Pty Limited [2002] FCA 49

FEDERAL COURT OF AUSTRALIA

Iluka Midwest Ltd v Technological Resources Pty Limited [2002] FCA 49

PATENTS – opposition proceedings – interim decision of a Delegate of the Commissioner of Patents upholding opposition but granting leave to amend the specification to cure deficiencies in the specification – final decision to grant the patent – after the final decision opponent appeals against interim and final decision – whether appeal against interim decision out of time – whether opponent is entitled to rely on grounds of appeal that relate to matters decided by the interim decision – whether leave to appeal out of time should be granted

Patents Act 1990 (Cth) ss 59, 60 and 61 Federal Court Rules O 58 r 4

R v Smith (Commissioner of Patents); Ex parte Mole Engineering Pty Ltd (1981) 147 CLR 340 - considered F Hoffman La-Roche AG v New England Biolabs Inc (2000) 99 FCR 56 – cited Kaiser Aluminum & Chemical Corporation v The Reynolds Metal Company (1969) 120 CLR 136 - cited Broken Hill Pty Co Ltd v American Can Co [1980] VR 143 – applied Acushnet Co v Spalding Australia Pty Ltd (1990) 18 IPR 364 - cited L. Oertling Ltd. And Anr.'s Application for a Patent [1959] R.P.C.148 - considered Rose Bros. (Gainsborough) Ltd.'s Application (Amendment) [1960] R.P.C. 247 - considered Ratnam v Cumarasamy [1965] 1 WLR 8 - cited Gallo v Dawson (1990) 93 ALR 479 - cited Jackamarra v Krakouer (1998) 195 CLR 516 - cited Kabushiki Kaisha Universal v Aristocrat Leisure Industries Pty Ltd [1998] AIPC 91-396 - cited ILUKA MIDWEST LTD (formerly known as RGC MINERAL SANDS LIMITED) v TECHNOLOGICAL RESOURCES PTY LIMITED V 1056 OF 2001 JUDGE: MERKEL J DATE: 6 FEBRUARY 2002 PLACE: MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V1056 OF 2001

BETWEEN: ILUKA MIDWEST LTD (formerly known as RGC MINERAL SANDS LIMITED)