Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Cadbury Schweppes Plc v Effem Foods Pty Ltd [2006] FCA 1267
PATENTS – appeal under s 60(4) of Patents Act 1990 (Cth) by applicant for patent against decision of Commissioner of Patents upholding opposition to grant – pursuant to leave, opponent withdrew its appearance on the appeal, did not appear on the hearing of the appeal, and submitted no evidence in support of the Commissioner's decision – Commissioner, joined as second respondent, appeared on hearing of appeal, but only to announce that she did not wish to participate actively on the hearing of the appeal or to oppose the allowing of the appeal – procedure to be followed on the hearing of the appeal – Held: appeal could be allowed without applicant's adducing evidence to displace the opposition that had succeeded before the Commissioner Patents Act 1990 (Cth) s 60(4)
F Hoffman-La Roche AG v New England Biolabs Inc (2000) 99 FCR 56 cited Caroma Sales Pty Ltd v Philmac Pty Ltd (1972) 46 ALJR 324 cited Brickwood Holdings Pty Ltd v ACI Operations Pty Ltd [1983] 2 VR 587 cited Titan Mining & Engineering Pty Ltd v Arnall's Engineering Pty Ltd (1988) 12 NSWLR 73 cited European Community v Commissioner of Patents [2006] FCA 706 followed CADBURY SCHWEPPES PLC v EFFEM FOODS PTY LTD (ACN 008 454 313) & ANOR NSD 1108 OF 2002
LINDGREN J
22 SEPTEMBER 2006
SYDNEY IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY NSD 1108 OF 2002
ON APPEAL FROM THE COMMISSIONER OF PATENTS BETWEEN: CADBURY SCHWEPPES PLC
Applicant
AND: EFFEM FOODS PTY LTD (ACN 008 454 313)
First Respondent
COMMISSIONER OF PATENTS
Second Respondent
JUDGE: LINDGREN J
DATE OF ORDER: 28 AUGUST 2006
WHERE MADE: SYDNEY
THE COURT ORDERS THAT: 1. The Commissioner of Patents be joined as second respondent to the appeal. 2. The appeal be allowed. 3. The decision of the Delegate of the Commissioner of Patents given on 30 September 2002 allowing the opposition be reversed. 4. The opposition to Australian Patent Application number 706901 filed by the Respondent in the Australian Patent Office on 1 October 1999 be dismissed in its entirety, and the said patent application proceed to grant. 5. The applicant serve a sealed copy of these Orders upon the Commissioner of Patents within seven (7) days. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA
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