Bradken Resources Pty Ltd (ACN 098 300 988) v Lynx Engineering Consultants Pty Ltd (ACN 059 949 469) [2010] FCA 662

Bradken Resources Pty Ltd (ACN 098 300 988) v Lynx Engineering Consultants Pty Ltd (ACN 059 949 469) [2010] FCA 662

Neither party's legal position is sufficiently certain to warrant striking out or dismissal of any part of the Second Appeal or Second Cross-Appeal. The appeal is a hearing de novo limited to the subject matter before the Commissioner, and both parties may present new evidence relevant to that subject matter. Orders will be made to allow both parties to advance their arguments, with provision to re-ventilate legal arguments as more material becomes available.

Jurisdiction
Australia
Judgment Date
24 June 2010
Procedural Posture
Appeal and Cross Appeal From Delegate of the Commissioner of Patents / Interlocutory Determination Concerning Notice of Motion and Objection to Competency, Prior to Directions Hearing
Outcome
Notice of Motion answered, Second Appeal not struck out; directions hearing ordered; costs reserved.
Legal Topics
['patent Opposition' 'patent Amendments' 'appeal From Commissioner' 'competency of Appeal' 'prior Art Evidence' 'hearing De Novo']
['intellectual Property' 'patents'] ['patent Opposition' 'patent Amendments' 'appeal From Commissioner' 'competency of Appeal' 'prior Art Evidence' 'hearing De Novo']

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Procedural Posture

Appeal and Cross Appeal From Delegate of the Commissioner of Patents / Interlocutory Determination Concerning Notice of Motion and Objection to Competency, Prior to Directions Hearing

Legal Issues

  1. 1 ['Whether arguments raised in the initial appeal may be raised in appeal from final determination if no appeal from amendment decision was lodged' 'Whether additional evidence of prior art/new grounds may be raised on appeal' 'Whether the Second Appeal is incompetent due to lack of appeal from the Second Decision' 'Whether appeals should be consolidated']

Ratio Decidendi

Neither party's legal position is sufficiently certain to warrant striking out or dismissal of any part of the Second Appeal or Second Cross-Appeal. The appeal is a hearing de novo limited to the subject matter before the Commissioner, and both parties may present new evidence relevant to that subject matter. Orders will be made to allow both parties to advance their arguments, with provision to re-ventilate legal arguments as more material becomes available.

Court Disposition

Notice of Motion answered, Second Appeal not struck out; directions hearing ordered; costs reserved.

Orders

  • ['The answer to Question 1 in the Notice of Motion filed by the applicant is (c).' 'The answer to Question 2 is no.' 'The matter be re-listed for a directions hearing on 1 July 2010 at 9.45 am.' 'Liberty to either party to apply in relation to these orders within 7 days.' 'Costs of the Notice of Motion and of the...