Cytec Industries Inc. v Nalco Company (No 3) [2021] FCA 1332

Federal Court of Australia

Cytec Industries Inc. v Nalco Company (No 3) [2021] FCA 1332 File number(s): NSD 130 of 2019

Judgment of: BURLEY J

Date of judgment: 1 November 2021

Catchwords: COSTS – where appellant succeeded in its opposition to the grant of patent application – where not all grounds of appeal successful – where grace period argument raised late – respondent to pay 70% of appellant's costs

Legislation: Federal Court of Australia Act 1976 (Cth) ss 37M and 37N Patents Act 1990 (Cth) ss 7, 24(1)(a) and 40(2)(aa)

Cases cited: Cytec Industries Inc. v Nalco Company [2021] FCA 970 Idenix Pharmaceuticals LLC v Gilead Sciences Pty Ltd (No 2) [2018] FCAFC 7 Meat & Livestock Australia Ltd v Cargill (No 2) [2019] FCA 33; 139 IPR 47

Division: General Division

Registry: New South Wales

National Practice Area: Intellectual Property

Sub-area: Patents and associated Statutes

Number of paragraphs: 17

Date of last submission/s: 12 October 2021

Counsel for the Appellant: Mr C Dimitriadis SC

Solicitor for the Appellant: Allens

Counsel for the Respondent: Mr J S Cooke with Ms M Evetts

Solicitor for the Respondent: Shelston Lawyers

ORDERS NSD 130 of 2019

BETWEEN: CYTEC INDUSTRIES INC Appellant

AND: NALCO COMPANY Respondent

AND BETWEEN: NALCO COMPANY Cross-Appellant

AND: CYTEC INDUSTRIES INC Cross-Respondent

order made by: BURLEY J DATE OF ORDER: 1 NOVEMBER 2021

THE COURT ORDERS THAT:

1. The Respondent/Cross-Appellant pay 70% of the Appellant's/Cross-Respondent's costs of the proceedings, including costs reserved by order 3 of the orders made on 27 August 2020. 2. Any disputed assessment of the quantum of the costs in order 1 be determined by a Registrar of the Court, such determination to be deferred until the conclusion of the proceedings. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.