Fisher & Paykel Healthcare Limited v ResMed Limited [2017] FCA 977

Fisher & Paykel Healthcare Limited v ResMed Limited [2017] FCA 977

The cross-appeal should be allowed and the Delegate's decision set aside regarding claims 1-4, 6-12, and 14-20, since the opposing party had discontinued its appeal and did not oppose orders in the cross-appeal, and the Commissioner did not seek to be heard.

Jurisdiction
Australia
Judgment Date
21 August 2017
Procedural Posture
Appeal and Cross Appeal From Decision of Delegate of Commissioner of Patents / Final Orders Following Discontinuance of Appeal and Hearing of Cross Appeal
Outcome
Cross-appeal allowed; Delegate's decision set aside in respect of contested claims; opposition dismissed; patent application to proceed to grant; appellant to pay respondent's costs of cross-appeal up to and including 8 August 2017; dates for final hearing vacated; no order as to costs of the day.
Legal Topics
['patents' 'inventive Step' 'opposition Proceedings']
['intellectual Property'] ['patents' 'inventive Step' 'opposition Proceedings']

Case Brief

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Procedural Posture

Appeal and Cross Appeal From Decision of Delegate of Commissioner of Patents / Final Orders Following Discontinuance of Appeal and Hearing of Cross Appeal

Legal Issues

  1. 1 ['Whether the Delegate of the Commissioner of Patents erred in finding claims 1-4, 6-12 and 14-20 invalid for lack of inventive step' "Whether Fisher & Paykel's opposition to Australian Patent Application No 2009221630 should be dismissed" 'Whether the patent application should proceed to grant']

Ratio Decidendi

The cross-appeal should be allowed and the Delegate's decision set aside regarding claims 1-4, 6-12, and 14-20, since the opposing party had discontinued its appeal and did not oppose orders in the cross-appeal, and the Commissioner did not seek to be heard.

Court Disposition

Cross-appeal allowed; Delegate's decision set aside in respect of contested claims; opposition dismissed; patent application to proceed to grant; appellant to pay respondent's costs of cross-appeal up to and including 8 August 2017; dates for final hearing vacated; no order as to costs of the day.

Orders

  • ['The Commissioner of Patents be joined as the Second Respondent.' 'The cross-appeal be allowed.' "The Appellant pay the Respondent's costs of the cross-appeal up to and including 8 August 2017." 'The decision of the Delegate of the Commissioner of Patents given on 15 July 2016 insofar as it concerns claims 1, 2, 3,...