Patent Gesellschaft Ag v Saudi Livestock Transport Co

Patent Gesellschaft Ag (the applicant) sought leave to appeal from a decision of the Full Federal Court which had dismissed its appeal from a judgment of the Federal Court. The dispute concerned the validity of a patent for a method of transporting livestock by sea, which the respondent, Saudi Livestock Transport Co, alleged was invalid and had infringed. The applicant sought to rely on a prior publication as evidence of invalidity.

The central legal issue before the High Court was whether the prior publication, a German patent application, constituted a "publication" for the purposes of the Patents Act 1990 (Cth) at the relevant time. Specifically, the Court had to determine whether the German application, which had been made available to the public in Germany but not in Australia, was sufficient to anticipate the Australian patent.

The High Court, by majority, held that the German patent application was not a publication in Australia at the relevant time. Brennan CJ and Dawson J reasoned that for a document to be a publication in Australia, it must be made available to the public in Australia. Kirby J, dissenting, considered that the availability of the German application in Germany was sufficient to constitute publication for the purposes of the Act, given the international nature of patent law and the accessibility of information. The majority applied the principle that publication requires dissemination within the jurisdiction.

The High Court dismissed the application for leave to appeal.