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Inter Aqua Advance A/S v Bent Urup Holding ApS

Inter Aqua Advance A/S v Bent Urup Holding ApS

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Case Copied 4 July 2018 76 min read

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IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
INTER AQUA ADVANCE A/S v Bent Urup Holding ApS [2018] APO 43

Patent Application: 2014267768

Title:Plant for fish farming and its use

Patent Applicant:                   Bent Urup Holding ApS
Opponent:  INTER AQUA ADVANCE A/S
Delegate:  Isaac Tan
Decision Date:  4 July 2018
Hearing Date:  22 March 2018 in Sydney, NSW

Catchwords: PATENTS – fish farming plant based on a recirculated aquaculture system - opposition to the grant of a patent under section 59 – request to consult additional material under regulation 5.23 – ground of manner of manufacture under section 18(1)(a) – ground of inventive step under section 7 – grounds of clarity and support under section 40(3) – ground of enabling disclosure under section 40(2)(a) – the claims define the invention in accordance with section 40(2)(b) – none of the grounds have been made out – opposition unsuccessful – costs awarded against the opponent – application to proceed to grant

Representation:
Applicant:
Katrina Crooks, Counsel for the Applicant

Scott Philp, Patent Attorney of Shelston IP
Natasha Faigenbaum, Solicitor of Shelston IP Lawyers
Opponent:
Jeremy Dobbin, Patent Attorney of FB Rice Pty Ltd

IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Patent Application: 2014267768

Title:Plant for fish farming and its use

Patent Applicant: Bent Urup Holding ApS
Date of Decision: 4 July 2018
DECISION
The Opposition is unsuccessful.
Costs awarded against INTER AQUA ADVANCE A/S
Subject to appeal, I direct that the Application proceed to grant.
REASONS FOR DECISION
Background

Australian patent application 2014267768 was filed on 2 May 2014 in the name of Bent Urup Holding ApS (the “Applicant”) as international application PCT/DK2014/000022 filed under the Patent Cooperation Treaty (“PCT”) with an international filing date of 2 May 2014 and claiming a priority date of 14 May 2013.
On 27 February 2016, a first patent examination report was issued. The application was subsequently accepted on 8 March 2016 and advertised in the Supplement to the Australian Official Journal of Patents on 14 April 2016.
On 14 July 2016, a Notice of Opposition was filed by INTER AQUA ADVANCE A/S (the “Opponent”) followed by the Statement of Grounds and Particulars on 14 October 2016.
A hearing was held in Sydney, NSW on the 22 March 2018, at the office of Shelston IP. The Opponent appeared by written submissions only.
Applicable Law
The application was filed after 15 April 2013 and is governed by the Patents Act 1990 (the “Act”) as amended by the Intellectual Property Laws Amendment (Raising the Bar) Act 2012. Amendments to sections 7, 40 and 49 of the Act apply to the present case as a consequence of Schedule 1, items 55(1)(d) and 55(4)(a), and Schedule 6, item 133(7)(d) of the Raising the Bar Act.
Thus the standard of proof that applies in the present case is the balance of probabilities. Under subsection 60(3A), if I am satisfied, on the balance of probabilities, that a ground of opposition to the grant of a patent exists, I may refuse…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] APO 43
Decision Date: 4 July 2018

CaseChat Overview and Summary

The parties involved in this matter were Inter Aqua Advance A/S, the applicant for a patent, and Bent Urup Holding ApS, the opponent to the grant of the patent. The dispute centred around the applicant's proposed patent for a fish farming plant based on a recirculated aquaculture system. The case was heard in the Federal Court of Australia. The opponent had opposed the grant of the patent on multiple grounds, including manner of manufacture, inventive step, clarity, support, and enabling disclosure.

The primary legal issues before the court were whether the grounds of opposition raised by the opponent were valid and, if so, whether they were made out. Specifically, the court had to determine if the patent application disclosed a manner of manufacture as required by section 18(1)(a) of the relevant legislation, whether it involved an inventive step under section 7, if the claims were clear and supported under section 40(3), and if the disclosure enabled a person skilled in the art to carry out the invention under section 40(2)(a). Additionally, the court considered whether the claims defined the invention in accordance with section 40(2)(b).

After reviewing the evidence and arguments presented, the court found that none of the grounds of opposition had been successfully made out. The patent application was deemed to comply with the statutory requirements for grant, including the definition of the invention, clarity, and enabling disclosure. As a result, the opposition to the grant of the patent was dismissed, and costs were awarded against the opponent. The applicant was granted permission to proceed with the patent application.

Orders