Post Trial Prior Art
In Delnorth Pty Ltd v Dura-Post (Aust) Pty Ltd [2008] FCA 875, handed down on 5 June 2008, Gyles J granted leave to Dura-Post to re-open its case seeking to revoke various innovations patents in the name Delnorth.
Following the close of the hearing of the matter, a prior published US patent came to the attention of Dura-Post, who brought an application to be allowed to amend the particulars of invalidity to rely upon the prior publication under the grounds of novelty and lack of innovative step, and tender the patent in evidence.
Gyles J, being satisfied that there was sufficient explanation as to the delay in raising the point, that the prior publication was of apparent relevance to the issues in the case and that any prejudice to Delnorth could be cured by appropriate orders as to costs, granted leave as sought. The court also noted that: “it is relevant to take into account that a patent revocation suit has some of the characteristics of an action in rem. It does affect the public and I must bear in mind that anybody else could come along and seek to revoke using this very piece of art.”
The decision is here.