Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Merck Sharpe & Dohme (Australia) Pty Ltd v Genentech Inc [2016] FCA 324 Appeal from: Merck Sharpe & Dohme (Aust) Pty Ltd v Genentech Inc [2015] APO 19
File number: NSD 639 of 2015
Judge: RARES J
Date of judgment: 1 April 2016
Catchwords: PATENTS – Patents Act 1990 (Cth) – competency of appeal from decision of Commissioner under s 60(4) of Patents Act 1990 (Cth) – opposition proceedings – first decision of Commissioner under s 60(1) upholding opposition that some claims lacked novelty but granting applicant leave to amend the claims to cure deficiencies – applicant conceded before Commissioner that if independent claims not novel dependant claims also failed – opponent did not appeal first decision under s 60(4) – after amendments allowed under s 104(2) – opponent sought to argue new claims lacked novelty – Commissioner refused to allow opponent to argue lack of novelty as first decision was a final decision on all issues of lack of novelty – opponent appealed second decision under s 60(4) – Commissioner contended appeal incompetent as first decision finally determined all questions of lack of novelty Held: appeal dismissed as incompetent
Legislation: Federal Court of Australia Act 1976 (Cth) Federal Court Rules 2011 (Cth) Intellectual Property Laws Amendment (Raising the Bar) Act 2012 (Cth) Judiciary Act 1903 (Cth) Patents Act 1952 (Cth) Patents Act 1990 (Cth) Patents Regulations 1991 (Cth) The Constitution
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