Genetics Institute, Inc v Kirin-Amgen Inc (No. 4) [1998] FCA 889

Genetics Institute, Inc v Kirin-Amgen Inc (No. 4) [1998] FCA 889

The Court declined to vary the orders, finding that the discretion under Federal Court Rules O 35 r 7(1) should not be exercised in the present case because the application amounted to a substitute for appeal, and the order was inextricably linked to judicial findings regarding claim 39, thus finality should be maintained.

Jurisdiction
Australia
Judgment Date
23 July 1998
Procedural Posture
Application for Variation of Orders / Post Final Judgment; Prior to Entry of Orders
Outcome
application for variation of orders dismissed
Legal Topics
['variation of Orders' 'finality of Judgment' 'federal Court Rules O 35 R 7(1)']
['practice and Procedure' 'patents'] ['variation of Orders' 'finality of Judgment' 'federal Court Rules O 35 R 7(1)']

Case Brief

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Procedural Posture

Application for Variation of Orders / Post Final Judgment; Prior to Entry of Orders

Legal Issues

  1. 1 ['Whether the Court should vary a final judgment order prior to its entry under Federal Court Rules O 35 r 7(1)' 'Whether deletion of a part of patent specification should be reconsidered']

Ratio Decidendi

The Court declined to vary the orders, finding that the discretion under Federal Court Rules O 35 r 7(1) should not be exercised in the present case because the application amounted to a substitute for appeal, and the order was inextricably linked to judicial findings regarding claim 39, thus finality should be maintained.

Court Disposition

application for variation of orders dismissed

Orders

  • ['The application for variation of orders be dismissed.' 'The time for filing and serving notice of any appeal or application for leave to appeal be extended until 20 August 1998.' "The respondent pay the applicant's costs of the day."]