Bradken Resources Pty Ltd v Lynx Engineering Consultants Pty Ltd [2012] FCA 944

Bradken Resources Pty Ltd v Lynx Engineering Consultants Pty Ltd [2012] FCA 944

Gilpin does not anticipate the Lynx Complete Specification as a combination patent; the inventive combination claimed is not disclosed in the prior art. There is a modicum of inventiveness required and the inventive features are not routine or obvious. The priority date is deferred to 30 March 1999 but the use of prototypes before that date was for trial or experiment only and does not constitute secret use. Therefore, Bradken failed on all grounds except the priority date, and the patent is not invalidated on the grounds of lack of novelty, lack of inventive step, or secret use.

Jurisdiction
Australia
Judgment Date
31 August 2012
Procedural Posture
Appeal and Cross Appeal From Delegate of Commissioner of Patents / Judgment Following Hearing De Novo
Outcome
Bradken succeeded only on priority date (deferred to 30 March 1999); did not succeed on any other ground.
Legal Topics
['novelty' 'inventive Step' 'priority Date' 'secret Use' 'combination Patent' 'patent Construction' 'expert Evidence Admissibility']
['patents' 'intellectual Property'] ['novelty' 'inventive Step' 'priority Date' 'secret Use' 'combination Patent' 'patent Construction' 'expert Evidence Admissibility']

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Procedural Posture

Appeal and Cross Appeal From Delegate of Commissioner of Patents / Judgment Following Hearing De Novo

Legal Issues

  1. 1 ['Does the Lynx Complete Specification lack novelty?' 'Was there a lack of inventive step (obviousness)?' 'What is the correct priority date?' 'Was there secret use before the deferred priority date?']

Ratio Decidendi

Gilpin does not anticipate the Lynx Complete Specification as a combination patent; the inventive combination claimed is not disclosed in the prior art. There is a modicum of inventiveness required and the inventive features are not routine or obvious. The priority date is deferred to 30 March 1999 but the use of prototypes before that date was for trial or experiment only and does not constitute secret use. Therefore, Bradken failed on all grounds except the priority date, and the patent is not invalidated on the grounds of lack of novelty, lack of inventive step, or secret use.

Court Disposition

Bradken succeeded only on priority date (deferred to 30 March 1999); did not succeed on any other ground.

Orders

  • ['The respondent/cross-appellant file any submissions as to the appropriate disposition of the appeal/cross-appeal and costs within 21 days.' 'The applicant/cross-respondent file any submissions in response within a further 21 days.' 'The respondent/cross-appellant file any submissions in reply within 7 days.' 'Any...