Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Grant v Commissioner of Patents [2005] FCA 1100 INTELLECTUAL PROPERTY – patents – whether a method for structuring a financial transaction designed to protect an individual's assets against the lawful claims of the individual's creditors is capable of being the subject of a patent – principles which govern the application of s 6 of the Statute of Monopolies.
Patents Act 1990 (Cth) s 18(1A) Advanced Building Systems Pty Limited v Ramset Fasteners (Aust) Pty Limited (1998) 194 CLR 171 referred to Attorney‑General of the Commonwealth of Australia v The Adelaide Steamship Company Limited [1913] AC 781 referred to International Business Machines Corporation v Commissioner of Patents (1991) 33 FCR 218 cited National Research Development Corporation v Commissioner of Patents (1959) 102 CLR 252 applied Re Innovation Patent No 2004100848 in the name of Peter Szabo and Associates Pty Ltd [2005] APO 24 referred to Welcome Real‑Time SA v Catuity Inc (2001) 51 IPR 327 cited STEVEN JOHN GRANT v COMMISSIONER OF PATENTS NSD 930 of 2004 BRANSON J 12 AUGUST 2005 SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY NSD 930 of 2004
BETWEEN: STEVEN JOHN GRANT
APPLICANT
AND: COMMISSIONER OF PATENTS
RESPONDENT
JUDGE: BRANSON J
DATE OF ORDER: 12 AUGUST 2005
WHERE MADE: SYDNEY
THE COURT ORDERS THAT: 1. The appeal from the decision of the respondent revoking the Patent be dismissed. 2. The applicant pay the respondent's costs.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY NSD 930 of 2004
BETWEEN: STEVEN JOHN GRANT
APPLICANT
AND: COMMISSIONER OF PATENTS
RESPONDENT
JUDGE: BRANSON J
DATE: 12 AUGUST 2005
PLACE: SYDNEY
REASONS FOR JUDGMENT
INTRODUCTION 1 The issue to be determined on this appeal under s 101F(4) of the Patents Act 1990 (Cth) ('the Act') is whether a method for structuring a financial transaction, the purported effect of which is to protect an individual's assets (presumably against the lawful claims of the individual's creditors), is capable of being the subject of a patent. 2 The applicant has appealed from a decision of the respondent made by her delegate ('the Delegate') that the invention the subject matter of Innovation Patent No 2003100074 as proposed to be amended ('the Patent') is not a 'manner of manufacture within the meaning of section 6 of the Statute of Monopolies' (see s 18(1A)(a) of the Act). Claim 1 of the Patent is as follows: '1. an asset protection method for protecting an asset owned by an owner, the method comprising the steps of: (a) establishing a trust having a trustee, (b) the owner making a gift of a sum of money to the trust, (c) the trustee making a loan of said sum of money from the trust to the owner, and (d) the trustee securing the loan by taking a charge for said sum of money over the asset.' 3 This appeal was argued on the basis that if claim 1 is not the proper subject of a patent, claims 2‑5 will similarly not be proper subjects of a patent. 4 For the reasons set out below I have concluded that the decision of the Delegate is correct and the appeal should be dismissed.
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