Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
G S Technology Pty Limited v Commissioner of Patents [2004] FCA 1017 INTELLECTUAL PROPERTY – PATENTS – appeal from decision of Administrative Appeals Tribunal decision to affirm a decision to refuse an application for extension of time to pay a continuation fee– failure of applicant to pay continuation fee on or before due date – consequential lapse of patent – evidence of applicant's ongoing intention to maintain the patent – immediate lodging of fee on realisation of error – erroneous advice as to due date given in letter from patent attorneys – failure of applicant's agent to put in place a proper diary or reminder system – whether the 'type of omission' is relevant – whether the discretion miscarried Administrative Appeals Tribunal Act 1975 (Cth) s 44 Patents Act 1990 (Cth) ss 142, 223 Patents Act 1952 (Cth) s 160 Patents Regulations 1991 regs 5.10(2), 13.3 Kimberly-Clark Ltd v Commissioner of Patents (1988) 84 ALR 685 considered House v The King (1936) 55 CLR 499 cited Waterford v The Commonwealth of Australia (1986-1987) 163 CLR 54 referred to Minister for Aboriginal Affairs v Peko-Wallsend Limited (1985-1986) 162 CLR 24 referred to Danby Pty Ltd v Commissioner of Patents (1988) 82 ALR 491 referred to Plant Genetic Systems NV v Paladin Hybrids Inc [1999] APO 24 referred to Toyo Seikan Kaisha Ltd v Nordson Corporation (1985) 5 IPR 388 cited Scaniainventor v Commissioner of Patents (1981) 36 ALR 101 referred to Lehtovaara v Acting Deputy Commissioner of Patents (1981) 39 ALR 103 referred to Husky Injection Moulding Systems Limited v Commissioner of Patents (1990) 98 ALR 133 referred to Sanyo Electric Co Ltd v Commissioner of Patents (1996) AIPC 91-283 considered Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1 cited Gageler "The Legitimate Scope of Judicial Review" (2001) 21 Australian Bar Review 279 G S TECHNOLOGY PTY LIMITED v COMMISSIONER OF PATENTS and G S A INDUSTRIES (AUST) PTY LTD No Q 69 of 2003 SPENDER J BRISBANE 9 AUGUST 2004
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