Henry Berry and Company Pty Ltd v Potter [1924] HCA 43

Henry Berry and Company Pty Ltd v Potter [1924] HCA 43

By majority (Isaacs A.C.J. and Gavan Duffy J.), the applicants' process was not clearly a mere analogous use of known substances and processes, and as such involved sufficient inventive step and novelty for patent grant at this procedural stage. The opposition failed as patentability was not plainly disproved on the available evidence; the matter was deemed not so clear as to warrant interception of the application at this stage.

Parties
Opponent: Henry Berry and Company Proprietary Limited; Applicant: Allen Percy Potter; Applicant: Harry Wood Shmith
Jurisdiction
Australia
Judgment Date
06 November 1924
Procedural Posture
Patent Opposition Appeal / Appeal From Commissioner of Patents to High Court
Outcome
appeal dismissed
Legal Topics
Patents, Novelty, Subject Matter, Invention, Opposition Proceedings
Intellectual Property Law Patents Novelty Subject Matter Invention Opposition Proceedings

Case Brief

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Parties

Henry Berry and Company Proprietary Limited

Opponent

Allen Percy Potter

Applicant

Harry Wood Shmith

Applicant

Procedural Posture

Patent Opposition Appeal / Appeal From Commissioner of Patents to High Court

Legal Issues

  1. 1 Whether the respondents' process for seasoning sausage-meat using emulsified essential oils is novel and patentable subject matter; Whether the method claimed is a mere application of a known process or product without inventive step; Whether the use of emulsified essential oils for flavouring in this context lacks novelty due to prior art or public use.

Ratio Decidendi

By majority (Isaacs A.C.J. and Gavan Duffy J.), the applicants' process was not clearly a mere analogous use of known substances and processes, and as such involved sufficient inventive step and novelty for patent grant at this procedural stage. The opposition failed as patentability was not plainly disproved on the available evidence; the matter was deemed not so clear as to warrant interception of the application at this stage.

Court Disposition

appeal dismissed

Orders

  • opposition dismissed
  • patent to be granted to the applicants