The end of the “appeal” road for Dura-Post
Dura-Post (Aust) Pty Ltd’s application for special leave to appeal from the Full Federal Court’s decision was refused by the High Court of Australia on 11 December 2009. As reported earlier here, the Full Court of the Federal Court upheld the decision of Justice Gyles including his findings on innovative step.
In reaching its decision, the Full Court confirmed that when considering whether the invention claimed is in respect of an ‘innovative step’, the Court must compare the invention as claimed with each prior art disclosure and identify whether any variations between the invention and the prior disclosure make a substantial contribution to the working of the invention.
The High Court’s decision to refuse special leave not only confirms the approach taken by Justice Gyles and the Full Court in assessing whether an invention involves an innovative step, but it also reinforces the value of innovation patent system for those inventions that would not otherwise be protectable by reason that they do not involve an inventive step.