Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
New England Biolabs, Inc v F Hoffman-La Roche AG [2003] FCA 1460
PATENTS – amendment of complete specification prior to grant of patent – whether the Federal Court has a discretion to refuse to allow an amendment request under s 104(1) of the Patents Act 1990 (Cth) in an appeal against a decision of the Commissioner of Patents under s 104(7) of the Patents Act 1990 (Cth) on the ground of alleged inequitable conduct on the part of the patent applicant – whether regs 5.3(4), 10.4 and 10.5 of the Patents Regulations 1991 (Cth) are ultra vires as not being authorised by the Patents Act 1990 (Cth) – whether regs 5.3(4), 10.4 and 10.5 of the Patents Regulations 1991 (Cth) are constitutionally invalid
The Constitution Ch III Administrative Decisions (Judicial Review) Act 1977 (Cth) Federal Court of Australia Act 1976 (Cth) ss Patents Act 1903 (Cth) Patents Act 1952 (Cth) Patents Act 1990 (Cth) Patents Regulations 1991 (Cth)
F Hoffman-La Roche AG v New England Biolabs Inc (2000) 99 FCR 56 cited New England Biolabs Inc v Commissioner of Patents (2001) 110 FCR 357 cited NEW ENGLAND BIOLABS, INC v F HOFFMAN-LA ROCHE AG N1305 OF 2003 EMMETT J 4 NOVEMBER 2003 SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY N1305 OF 2003
BETWEEN: NEW ENGLAND BIOLABS, INC
APPLICANT
AND: F HOFFMAN-LA ROCHE AG
RESPONDENT
JUDGE: EMMETT J
DATE OF ORDER: 4 NOVEMBER 2003
WHERE MADE: SYDNEY
THE COURT NOTES THAT:
1. grounds 6, 7 and 8 of the notice of appeal filed 3 September 2003 are not pressed and are abandoned.
THE COURT ORDERS THAT:
2. Order 5 made on 17 October 2003 be rescinded;
3. the question whether this Honourable Court has a discretion to refuse to allow an amendment request under s 104(1) of the Patents Act 1990 (Cth) in an appeal against a decision of the Commissioner of Patents under s 104(7) of the Patents Act 1990 (Cth) on the grounds set out in Exhibit 1A, be decided separately from and before any other question in the proceeding;
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