Atlantis Corporation Pty Ltd & Anor v Schindler, Peter & Ors [1997] FCA 455

Atlantis Corporation Pty Ltd & Anor v Schindler, Peter & Ors [1997] FCA 455

The stay was appropriate because the appeal was not suggested to be vexatious, determination was likely within months, and maintaining the status quo avoided possible difficulties in reinstating the patent on the register and possible prejudice to public reliance on the register. The appellants' proposed undertakings were appropriate, and security for the undertaking was unnecessary because the respondents indicated they would continue trading.

Jurisdiction
Australia
Judgment Date
27 May 1997
Procedural Posture
Application Under Section 29 of the Federal Court of Australia Act 1976 (cth) for a Stay of Orders Revoking Patent Claims / Stay Application Pending Determination of Appeal
Outcome
Stay granted; costs of the stay application to be costs in the appeal.
Legal Topics
['stay Pending Appeal' 'patent Revocation' 'register Status Quo' 'undertakings as to Damages' 'security for Undertaking' 'infringement Proceedings']
['practice and Procedure' 'patent Law'] ['stay Pending Appeal' 'patent Revocation' 'register Status Quo' 'undertakings as to Damages' 'security for Undertaking' 'infringement Proceedings']

Case Brief

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Procedural Posture

Application Under Section 29 of the Federal Court of Australia Act 1976 (cth) for a Stay of Orders Revoking Patent Claims / Stay Application Pending Determination of Appeal

Legal Issues

  1. 1 ['Whether the operation of the Supreme Court of New South Wales order revoking parts of Australian Patent No. 593085 should be stayed pending appeal.' 'Whether undertakings proposed by the appellants were appropriate conditions for a stay.' "Whether security should be ordered for any compensation payable under the appellants' undertaking."]

Ratio Decidendi

The stay was appropriate because the appeal was not suggested to be vexatious, determination was likely within months, and maintaining the status quo avoided possible difficulties in reinstating the patent on the register and possible prejudice to public reliance on the register. The appellants' proposed undertakings were appropriate, and security for the undertaking was unnecessary because the respondents indicated they would continue trading.

Court Disposition

Stay granted; costs of the stay application to be costs in the appeal.

Orders

  • ['The operation of Order 1 made by the Chief Judge in Equity in the Supreme Court of New South Wales on 27 March 1997 be suspended pending determination of the Appeal or until earlier further order.' 'The costs of the application for a stay be costs in the Appeal.' 'Liberty is granted to apply including in relation...