The fact that the special leave application has been filed has now been published on the Federal Court website.
How Does the Special Leave Process Work?It is important to understand that there is no automatic right to have an appeal heard by the High Court. Any party wishing to appeal must persuade the Court in a preliminary hearing that special reasons exist which justify the appeal being heard. These special leave hearings are brief and potentially brutal. Under Rule 41.11.3 of the High Court Rules 2004 the applicant (in this case, RPL Central) is permitted just 20 minutes to present its case for the grant of leave. The respondent (in this case, the Commissioner of Patents) then also has 20 minutes, typically used to argue that the case is insufficiently exceptional to justify a hearing by the High Court. Finally, the applicant has a further five minutes to reply. The Court then renders its decision on the application on-the-spot.
However, the decision is not made purely on the oral arguments. A special leave hearing is preceded by a series of written submissions. The applicant’s written summary of argument is due 28 days from the date of filing the application for special leave (Rule 41.05). The respondent then has 21 days to file its own summary of argument (Rule 41.06). The summaries of argument must be no more than 10 pages in length (Rule 41.07). Finally, the applicant may file a reply, of no more than five pages in length, within seven days of the respondent’s filing (Rule 41.08).
What Is Required for Special Leave to be Granted?The criteria for granting special leave are set out in section 35A of the Judiciary Act 1903. The High Court has a great deal of discretion, and ‘may have regard to any matters that it considers relevant’. However, the primary factors that the court is required to consider are:
- whether the matter involves a question of law that is of public importance, or where there have been differences of opinion between, or within, the lower courts; and
- whether the interests of the administration of justice require consideration of the matter by the High Court.
This high bar for the grant of special leave is commensurate with the significance of judgments issued by the High Court. Decisions of the Court on appeals are final, and binding on all other courts throughout Australia. The resources available to the High Court are finite, and it necessarily limits its attention to appeals involving questions of particular importance. It should therefore come as no surprise that the vast majority of applications for special leave are unsuccessful.
Will the High Court Be Interested?It is notable that in recent years the High Court has shown some interest in patent cases in general, and the question of subject matter eligibility under the ‘manner of manufacture’ test in particular. In December 2013 the Court confirmed the patent-eligibility of methods of medical treatment, while in 2015 it reviewed the status of naturally-occurring genetic sequences, and ruled Myriad Genetics’ claims directed to the BRCA breast cancer genetic mutation to be ineligible for patent protection.
Whether this recent interest in the topic is a positive or negative sign for RPL Central is unclear. On the one hand, methods of treatment and genetic technologies have both been publicly-contentious subjects when it comes to patent protection. So-called ‘software patents’ have also been controversial, and this could be the High Court’s opportunity to complete its consideration of the triumvirate of contested subject matters (as the US Supreme Court has also done in recent times). On the other hand, the Court may feel that it has already said all that it has to say on the subject of ‘manner of manufacture’, and that there is no need for it to take on yet another appeal on this area of the law.
Personally, I find it difficult to apply what the High Court has said about methods of treatment and genes to the very different technologies and issues involved in computer-implemented inventions. I therefore very much hope that the Court will agree to take on the RPL Central appeal in order to clarify the law. More than this, however, I cannot say at the present time, in view of my own involvement in the matter.