Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Daiichi Sankyo Company, Limited v Alethia Biotherapeutics Inc. [2016] FCA 1540 File number: NSD 1177 of 2015
Judge: BURLEY J
Date of judgment: 19 December 2016
Catchwords: PATENTS – appeal under s 60(4) of the Patents Act 1990 (Cth) – where opponent has effectively withdrawn and Commissioner of Patents is not taking active part in proceedings – no evidence to support grounds of opposition – appeal allowed
Legislation: Patents Act 1990 (Cth) ss 59, 60 Federal Court Rules 2011 (Cth) r 34.23
Cases cited: Cadbury Schweppes Plc v Effem Foods Pty Ltd [2006] FCA 1267; (2006) 69 IPR 584 Delnorth Pty Ltd v Dura-Post (Aust) Pty Ltd (Administrator Appointed) [2010] FCA 465; (2010) 85 IPR 642 Scott v Icon Plastics Pty Ltd [2012] FCA 428
Date of hearing: Determined on the papers
Date of last submissions: 21 November 2016
Registry: New South Wales
Division: General Division
National Practice Area: Intellectual Property
Sub-area: Patents and associated Statutes
Category: Catchwords
Number of paragraphs: 9
ORDERS NSD 1177 of 2015
BETWEEN: DAIICHI SANKYO COMPANY, LIMITED Appellant
AND: ALETHIA BIOTHERAPEUTICS INC. First Respondent
COMMISSIONER OF PATENTS Second Respondent
JUDGE: BURLEY J DATE OF ORDER: 5 DECEMBER 2016
BY CONSENT, THE COURT ORDERS THAT: 1. Pursuant to r 34.23 of the Federal Court Rules, the Commissioner of Patents (Commissioner) be joined as the second respondent. 2. The appeal be allowed. 3. The decision of the delegate of the Commissioner made on 9 September 2015 concerning opposed Australian Patent Application 2008311698 ([2015] APO 59) be set aside. 4. Alethia Biotherapeutics Inc's opposition to Australian Patent Application 2008311698 is dismissed. 5. Australian Patent Application 2008311698 proceed to grant. 6. There be no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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