Kaiser Aluminum & Chemical Corp v Reynolds Metal Co [1969] HCA 7

High Court of Australia Kitto J. Kaiser Aluminum & Chemical Corp v Reynolds Metal Co [1969] HCA 7

ORDER Appeal dismissed. Order that Deputy Commissioner's dismissal of opposition and direction that application proceed to grant be set aside; that opposition be remitted to Commissioner; that appellant pay respondent's costs of appeal. Deputy Commissioner's award of costs against opponent to stand.

Cur. adv. vult.

March 14 Kitto J. delivered the following written judgment:—

This is an appeal under s. 60 (5) of the Patents Act 1952-1966 Cth against a decision of a Deputy Commissioner of Patents dismissing an opposition to an application for a patent and directing that the application proceed to grant. The patent applied for was for an invention relating to refractory linings for electrolytic cells used for the reduction of alumina in the production of aluminum.

The opposition was initiated by a notice dated 2nd November 1966 containing seven grounds of opposition followed by a statement in these terms:—

Our interest is based upon the following facts:

We are manufacturers of refractories and we believe that the grant of letters patent in respect of the instant application will be detrimental to our future interests in the Commonwealth of Australia.

No other facts were stated from which it might be concluded that the opponent had an interest entitling it to oppose the application. Each party lodged declarations in support of its case. The opponent notified the Deputy Commissioner that it was not desirous of being heard and the Deputy Commissioner heard the matter of the opposition in the presence only of a representative of the applicant. The material relevant to the question of locus standi consisted only of the statement in the notice of opposition, for the declarations dealt only with the substance of the opponent's case. The applicant's representative took the point that the opponent had not shown a locus standi, there being nothing to show that the opponent was manufacturing refractories in Australia or had exported any of its goods to Australia or had any definite intention of manufacturing or selling them in Australia.