Cadbury Schweppes Plc v Effem Foods Pty Ltd [2006] FCA 1267

Cadbury Schweppes Plc v Effem Foods Pty Ltd [2006] FCA 1267

Where no evidence is adduced in support of opposition at the hearing of an appeal under s 60(4) of the Patents Act 1990 (Cth), and the Commissioner does not contest the appeal, there is no basis for upholding any grounds of opposition and the appeal must be allowed.

Parties
Applicant: Cadbury Schweppes Plc; First Respondent: Effem Foods Pty Ltd (ACN 008 454 313); Second Respondent: Commissioner of Patents
Jurisdiction
Australia
Judgment Date
22 September 2006
Procedural Posture
Appeal Under S 60(4) of the Patents Act 1990 (cth) / Appeal Judgment Following Withdrawal of Opposition and Commissioner Not Opposing
Outcome
Appeal allowed
Legal Topics
Patent Opposition, Appeal Procedure, Obviousness, Novelty, Patent Validity
Intellectual Property Law Patents Patent Opposition Appeal Procedure Obviousness Novelty Patent Validity

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Parties

Cadbury Schweppes Plc

Applicant

Effem Foods Pty Ltd (ACN 008 454 313)

First Respondent

Commissioner of Patents

Second Respondent

Procedural Posture

Appeal Under S 60(4) of the Patents Act 1990 (cth) / Appeal Judgment Following Withdrawal of Opposition and Commissioner Not Opposing

Legal Issues

  1. 1 Whether the applicant is required to adduce evidence on appeal when the opponent has withdrawn and the Commissioner does not contest the appeal
  2. 2 Whether the patent should proceed to grant when no evidence supports opposition after withdrawal

Ratio Decidendi

Where no evidence is adduced in support of opposition at the hearing of an appeal under s 60(4) of the Patents Act 1990 (Cth), and the Commissioner does not contest the appeal, there is no basis for upholding any grounds of opposition and the appeal must be allowed.

Court Disposition

Appeal allowed

Orders

  • The Commissioner of Patents be joined as second respondent to the appeal.
  • The appeal be allowed.