On 25 September 2013, the Commissioner filed an application with the Federal Court for leave to appeal Justice Middleton’s decision (the case is number VID1023/2013 in the Victorian Registry of the court).
As I have pointed out on previous occasions when reporting on this case, I am not an impartial observer, nor am I at liberty to reveal all that I know about the status of the matter, or to express all of my true thoughts and opinions. RPL Central Pty Ltd is a client of my employer, Watermark Intellectual Asset Management. I drafted the patent specification which is under scrutiny in the case. My colleagues within Watermark’s IP Law firm ran – and continue to run – the Federal Court appeal.
Obviously enough, however, I am less than thrilled that our client may once again be compelled to defend its patent before the court. It is some consolation, I suppose, that RPL Central finds itself in esteemed company – the last time a Patent Office appealed a decision overturing a rejection of patent claims on similar grounds was in Canada, where the patent applicant was Amazon.com. In that case, the Commissioner’s appeal was largely unsuccessful, and Amazon’s patent claims were eventually approved.
The situation in Australia is, however, somewhat different from Canada, in that in this country there is no automatic right of appeal from a decision which is itself the result of an appeal from a Patent Office determination. I explained the requirement for ‘leave’ to appeal a decision of this kind when Research Affiliates applied to appeal the adverse decision of Justice Emmett earlier this year, so I will not repeat myself here. In that case, Research Affiliates also sought orders that the leave application be heard before the Full Court, either immediately prior to, or simultaneously with, the appeal itself. The Commissioner consented to this proposal, and in the circumstances of that case the requested orders were granted by the court.
The Commissioner’s leave application has been set down for a ‘directions hearing’ before Chief Justice Allsop, at 9.30am on 17 October 2013. Keen watchers of the Commonwealth Courts Portal will note that the Research Affiliates appeal (case number NSD328/2013 in the NSW Registry), which is scheduled to be heard by Justices Bennett, Middleton and Nicholas on 18 November 2013, has also been set down for directions before the Chief Justice, at the same time and place. This much, at least, is a matter of public record. Beyond that, however, I am unable to comment at this time.
Naturally, I will continue to provide updates as, and when, it becomes possible for me to do so!
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