Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
European Community v Commissioner of Patents [2006] FCA 706
PATENTS – appeal from decision of Patent Commissioner – opposition to patent application – where respondent granted leave to withdraw appearance – where no appearance on behalf of the Commissioner – whether it is appropriate to allow patent to proceed to grant – relevant legal principles – whether necessary to consider merits of patent application – opposition dismissed – patent allowed to proceed to grant
Patents Act 1990 (Cth) s 60 Titan Mining & Engineering Pty Ltd v Arnall's Engineering Pty Ltd (1988) 12 NSWLR 73 followed Kaiser Aluminum & Chemical Corporation v Reynolds Metal Company (1969) 120 CLR 136 cited RD Werner Co Inc v Bailey Aluminium Products Pty Ltd (1987) 8 IPR 339 cited Hoffman-La Roche AG v New England Biolabs Inc (2000) 99 FCR 56 discussed Caroma Sales Pty Ltd v Philmac Pty Ltd (1972) 46 ALJR 324 followed Brickwood Holdings Pty Ltd v ACI Operations Pty Ltd [1983] 2 VR 587 followed
THE EUROPEAN COMMUNITY v COMMISSIONER OF PATENTS
VID 31 of 2003
YOUNG J
16 MAY 2006
MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY VID 31 OF 2003
BETWEEN: THE EUROPEAN COMMUNITY
APPLICANT
AND: COMMISSIONER OF PATENTS RESPONDENT
JUDGE: YOUNG J
DATE OF ORDER: 16 MAY 2006
WHERE MADE: MELBOURNE
THE COURT ORDERS THAT:
1. The appeal be allowed and the decision of the Delegate of the Commissioner of Patents given on 12 December 2002 allowing the opposition, be reversed.
2. The opposition to Australian patent application number 713629 be dismissed in its entirety and the said patent application proceed to grant.
3. The costs order in the opposition hearing below be vacated.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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