Atlantis Corporation Pty Ltd v Schnidler (No3) [2000] FCA 1758

Atlantis Corporation Pty Ltd v Schnidler (No3) [2000] FCA 1758

The Court lacked power to direct amendment because no relevant proceedings were pending as required by s 105(1) of the Patents Act 1990 (Cth), the final orders of 24 October 1997 having disposed of all issues of infringement, revocation, or validity. Even if jurisdiction existed, the proposed amended claim 1 was not fairly based on matter disclosed in the provisional specification as the mandatory integer of at least 40% perforation lacked support in the specification.

Jurisdiction
Australia
Judgment Date
06 December 2000
Procedural Posture
Appeal From Supreme Court of New South Wales / Judgment on Notice of Motion Seeking Amendment of Patent After Appellate Orders
Outcome
Appellants' motion dismissed with costs
Legal Topics
['patent Amendment' 'jurisdiction' 'priority Date' 'amendment Procedures' 'fair Basis']
['intellectual Property' 'patents'] ['patent Amendment' 'jurisdiction' 'priority Date' 'amendment Procedures' 'fair Basis']

Case Brief

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Procedural Posture

Appeal From Supreme Court of New South Wales / Judgment on Notice of Motion Seeking Amendment of Patent After Appellate Orders

Legal Issues

  1. 1 ['Whether the Federal Court retains power under s 105(1) of the Patents Act 1990 (Cth) to direct amendment of a patent where previous orders have finally disposed of appeal and the patent has been ordered revoked' 'Whether the proposed amended claim 1 is fairly based on matter disclosed in the provisional specification']

Ratio Decidendi

The Court lacked power to direct amendment because no relevant proceedings were pending as required by s 105(1) of the Patents Act 1990 (Cth), the final orders of 24 October 1997 having disposed of all issues of infringement, revocation, or validity. Even if jurisdiction existed, the proposed amended claim 1 was not fairly based on matter disclosed in the provisional specification as the mandatory integer of at least 40% perforation lacked support in the specification.

Court Disposition

Appellants' motion dismissed with costs

Orders

  • ["The appellants' motion brought by notice of motion filed on 4 November 1998 be dismissed." "The appellants pay the respondents' costs of the motion."]