High Court refuses special leave in innovation patent case

In an update to our earlier post, the High Court has refused an application by Dura-Post for special leave to appeal from a decision of the Full Federal Court.

Dura-Post argued that the test for innovative step, laid out in section 7(4) of the Patents Act 1990, necessitated a need to assess the substance of the invention and required more than a simple functional comparison of the invention as claimed in the patent and the prior art.

Justices Gummow and Hayne refused leave stating that an appeal based on this argument would fail.

A copy of the transcript can be found here.

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About the Author

James EllsmoreJames is a senior associate with King & Wood Mallesons' Intellectual Property team in Sydney. James assists clients to resolve intellectual property disputes, with a particular focus on patents, pharmaceuticals and the life sciences. He has acted for a variety of clients in matters concerning patent infringement and revocation proceedings in the Federal Court of Australia, patent opposition proceedings before the Commissioner of Patents, and matters arising from patent licence and technology agreements. James also has experience in the preparation of commercial, R&D and IP agreements for leading universities, research organisations and pharmaceutical companies. He also advises clients on regulatory issues affecting clients in the industrials, consumer and health sectors.View all posts by James Ellsmore

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