Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
New England Biolabs, Inc v F. Hoffmann-La Roche AG [2004] FCA 1651 INTELLECTUAL PROPERTY – patents – appeal from decision of Commissioner of Patents to allow amendments – Patents Act 1990 (Cth) ss 40, 102, 104 – whether as a result of amendments certain claims would not fall within scope of claims of specification before amendment – no impermissible broadening of claims – no requirement in the Patents Act that the best method disclosed in a specification must actually have been performed by the applicant Patents Act 1990 (Cth), ss 40, 102, 104. F. Hoffmann-La Roche AG v Commissioner of Patents [2000] FCA 1845 cited New England Biolabs Inc v Commissioner of Patents (2001) 110 FCR 357 cited AMP Incorporated v Commissioner of Patents (1974) 3 ALR 283 cited NEW ENGLAND BIOLABS, INC v F. HOFFMANN-LA ROCHE AG N1305 OF 2003 EMMETT J 15 DECEMBER 2004 SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY N1305 OF 2003
ON APPEAL FROM THE COMMISSIONER OF PATENTS
BETWEEN: NEW ENGLAND BIOLABS, INC
APPLICANT
AND: F. HOFFMANN-LA ROCHE AG
RESPONDENT
JUDGE: EMMETT J
DATE OF ORDER: 15 DECEMBER 2004
WHERE MADE: SYDNEY
THE COURT ORDERS THAT: 1. The appeal be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY N1305 OF 2003
ON APPEAL FROM THE COMMISSIONER OF PATENTS
BETWEEN: NEW ENGLAND BIOLABS, INC
APPLICANT
AND: F. HOFFMANN-LA ROCHE AG
RESPONDENT
JUDGE: EMMETT J
DATE: 15 DECEMBER 2004
PLACE: SYDNEY
REASONS FOR JUDGMENT 1 This is another stage in the dispute concerning Patent Application No. 632857 ('the Patent Application'), which relates to a purified thermostable DNA polymerase. This proceeding is an appeal under s 104(7) of the Patents Act 1990 (Cth) ('the Act') from a decision of the Commissioner of Patents allowing amendments at the behest of the respondent, F. Hoffmann-La Roche AG ('Hoffmann'). The amendments were opposed by the applicant, New England Biolabs, Inc ('NEB').
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