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Nufarm Australia Limited v Corteva Agriscience

Nufarm Australia Limited v Corteva Agriscience

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Case Copied 6 July 2022 60 min read

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IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Nufarm Australia Limited v Corteva Agriscience [2022] APO 46

Patent Application: 2017261483

Title:Compounds derived from herbicidal carboxylic acids and tetraalkylammonium or (arylalkyl) trialkylammonium hydroxides

Patent Applicant:                   Corteva Agriscience LLC
Opponent:  Nufarm Australia Limited
Delegate:  K. Wagg
Decision Date:  6 July 2022
Hearing Date:  19 May 2021

Catchwords: PATENTS – section 59 opposition to the grant of a patent – opposition successful on ground of novelty and inventive step – use of choline hydroxide in D2 – costs awarded against the Applicant.

Representation: Counsel for the Applicant: Craig Smith
Patent attorney for the Applicant: FPA Patent Attorneys
Counsel for the Opponent: Benjamin Fitzpatrick
Patent attorneys for the Opponent: Arcadia Intellectual Property

IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Patent Application: 2017261483

Title:Compounds derived from herbicidal carboxylic acids and tetraalkylammonium or (arylalkyl) trialkylammonium hydroxides

Patent Applicant: Corteva Agriscience LLC
Date of Decision: 6 July 2022
DECISION
The Opposition is successful on the ground of novelty and inventive step. All other grounds fail.
Costs awarded against the Applicant.
Subject to appeal, the Applicant is provided 2 months to file suitable amendments.
REASONS FOR DECISION
Background

Patent application number 2017261483 (the Opposed application or the Specification) was filed on 14 November 2017 by Dow AgroSciences LLC who recorded a change of name to Corteva Agriscience LLC on 20 November 2021 (the applicant).The application is a divisional application that ultimately claims a priority date of 26 February 2007. The Parent is 2016202508, the grand parent is 2015200368; the great grandparent is 2013203406 and the great great grandparent is 2008219657. The great great grandparent, 2008219657, was withdrawn and the parent, 2016202508, was the subject of a hearing along with sibling case 2016203677, see Nufarm Australia Limited v Dow Agrosciences, LLC [2020] APO 10 (the parent opposition).
As a result of the filing date and subsequent later request for examination, the substantive amendments of the Patents Act 1990 brought about by the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 (Raising the Bar) apply to the present application. This includes the amendment to subsection 60 (3A) that allows the Commissioner to refuse a patent application if satisfied on the balance of probabilities that a ground of opposition exists. Any subsequent references to sections of the Patents Act relate to the Patents Act 1990 as amended by the Raising the Bar Act. A similar qualification applies to references to the Patents Regulations 1991.
The application was examined and advertised as accepted by the Commissioner on 25 July 2019. Nufarm Australia Limited (the opponent) filed a notice of opposition to grant on 25 October 2019 under section 59 of the Act. This decision concerns the opposition to grant under section 59 (this opposition).
The Grounds of Opposition
The Amended Statement of Grounds and Particulars filed on 21 January 2021 identified all of the available grounds of opposition. At hearing the following grounds were pressed:
·That the application does not comply with s 40(2) and s…

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: [2022] APO 46
Decision Date: 6 July 2022

CaseChat Overview and Summary

Nufarm Australia Limited contested Corteva Agriscience's patent application concerning a composition used in agriculture. The dispute was adjudicated in the Federal Court of Australia. The central issue was whether Corteva's patent was valid, specifically focusing on the novelty and inventive step required under Australian patent law. Nufarm argued that the patent did not meet the necessary criteria, and the court had to determine if this was the case.

The court assessed whether the claimed invention was novel and involved an inventive step in light of prior art. It found that the use of choline hydroxide in the composition, as claimed by Corteva, was not novel due to existing prior art, and the claimed invention did not sufficiently demonstrate an inventive step over what was already known. The opposition was thus upheld, and the court ruled that the patent grant should be opposed on these grounds. Additionally, the court considered the costs associated with the opposition and decided to award costs against Corteva.

In conclusion, the court's decision was that Corteva's patent application did not meet the legal requirements for novelty and inventive step. The patent grant was successfully opposed, and costs were awarded against Corteva, as per the findings of the court.

Orders