Tagged: Case Note

Co-patentees jump the gun in appealing to the AAT

Case note by Peter Heerey AM, QC, Tom Cordiner & Alan Nash: correspondents for South Australia, Victoria and Western Australia
Stylis and Commissioner of Patents [2014] AATA 796 28 October 2014
The Administrative Appeals Tribunal has refused an application to review a particular decision of the Commissioner of Patents on the basis that the AAT lacks jurisdiction to review it.

Appeal against leave to amend statement of claim in group proceeding

The Victorian Court of Appeal has refused an application for leave to appeal against a decision of a trial judge to allow a plaintiff to amend his statement of claim in a group proceeding. The amended pleading relates to the interpretation of section 729 of the Corporations Act 2001 (claim for loss and damage arising from misleading or deceptive statements in a disclosure document).

Informed Cooperation Fuels Consumer Harm?

ACCC v Informed Sources (Australia) Pty Ltd & Ors VID450/2014 – In August this year the ACCC launched Federal Court proceedings against retail petrol suppliers. The case is an important test of the application of Australia’s competition laws to ‘tacit collusion’. The ACCC has to date had minimal success in this area.

Attempted challenge by a financial services provider to a determination by the Financial Ombudsman Service under its terms of reference

The decision of the Victorian Court of Appeal in favour of the Financial Ombudsman Service Ltd (FOS) highlights the difficulties for financial services providers in trying to challenge decisions of FOS and the dispute resolution process under the terms of reference (TOR). The TOR operate as a binding contract with a finality clause in favour of FOS’ decisions and determinations.

10 years means 10 years – s. 134 of the Building Act clarified

The Victorian Court of Appeal has held that the 10 year limitation for commencing a building action in s. 134 of the Building Act 1993 (“Building Act”) is not confined to negligence claims, but also applies to actions founded in contract. The Court of Appeal also held that, on the facts of the case, no duty of care was owed by the building surveyor to the owner to prevent the type of loss suffered by the owner.

Non compliance of terms of settlement by a borrower in relation to repossession proceedings commenced by a lender

Co-authored by Kieran Hickie and Andrew Kirby. The decision of the Victorian Court of Appeal in favour of the NAB highlights some difficulties that might arise between lenders and recalcitrant borrowers in relation to terms of settlement for the compromise of repossession proceedings. The Court of Appeal’s decision demonstrates that borrowers who enter terms of settlement must comply with the conditions of the terms of settlement.

A costly exercise – s 19(2) of the Patents Act

Alphapharm submitted that, although AstraZeneca had succeeded, it had no need to litigate at all because Alphapharm had made it clear that it would desist from conduct of the kind that was alleged to be in infringement of patents, until such time as the result of the appeal in Ranbaxy was known. Nevertheless AstraZeneca commenced proceedings against Alphapharm. AstraZeneca submitted that not only was it entitled to its costs in the normal course, but also that those costs should be taxed on the special basis for which section 19(2) of the Patents Act provides.

Do you hear what I hear – musical patent less than clear as a bell

Lisica v Commissioner of Patents [2014] FCA 433 7 May 2014 – On appeal to the Court, the applicant did not seek to lead any expert evidence, which might have explained the area of the useful arts to which his invention would make a contribution or at least assist in understanding the language of the specification and the claims. Justice Jessup concluded that in those circumstances, the claim was neither clear nor succinct as required by s 40(3) of the Act: “As a statement marking out the area of the public monopoly which the applicant seeks, the claim falls well short of the standard of clarity required.” His Honour echoed the view expressed by the delegate that the applicant’s attempt to draft the specification and claims without professional assistance, had not helped him.

Telstra continues to see red over competitors’ use of yellow for phone directories

Telstra and, more recently, Sensis have published the well known Yellow Pages phone directories since 1975, and also used the “Walking Fingers” logo since shortly after that date. The applicants’ more recent online directories and mobile applications similarly have featured a yellow theme. Yellow has been a strong theme in the applicants’ marketing from an early date. Telstra and Sensis brought claims of misleading and deceptive conduct and passing off against three publishers of print and online phone directories (the PDC respondents). The relevant publications had yellow covers and yellow pages in the case of the print publications, and yellow icons, background and other visual elements in the case of online directories and mobile applications.