In the decision of the Full Federal Court of Australia in IGT (Australia) Pty Ltd v Aristocrat Technologies Australia Ltd [2008] FCAFC 131 Justice Gyles has thrown doubt on the correctness of the approach adopted by the Commissioner and the Federal Court on appeal under section 60(4) with respect to the Opponent’s onus in pre-grant oppositions. For a number of years the authorities have drawn a distinction between opposition and revocation proceedings. The judge at first instance summarized the distinction as follows (Aristocrat Technologies (2007) 239 ALR 181, (2007) 71 IPR 259 at [11]):
“whether it can be concluded clearly or as a matter of practical certainty that the opposition is well made and that the patent, if granted, would be bad, … the issue for resolution by the court is not whether the matters grounding the opposition (here want of novelty and obviousness) have been made out in the manner required in revocation proceedings.” (Original emphasis.)

This entry was posted by Phillips Ormonde Fitzpatrick on Tuesday, July 22nd, 2008 at 11:00 am and is filed under Australian Patents. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.