Commissioner of Patents v Sherman

(2008) 172 FCR 394; [2008] FCAFC 182

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Catchwords

1. Patents
2. › Opposition to grant of patent
3. › Appeal under s 60(4) of Patents Act 1990 (Cth)
4. › Nature of appeal as hearing de novo in original jurisdiction
5. › Admissibility of evidence on appeal
6. › Whether Evidence Act 1995 (Cth) applies
7. › Whether s 160(a) of Patents Act displaces rules of evidence
8. › Whether O 58 r 8 of Federal Court Rules makes material before Commissioner admissible
9. › Patents Act 1990 (Cth), ss 60(4), 160(a)
1. Evidence
2. › Admissibility
3. › Relevance
4. › Opinion evidence
5. › Whether opinion of expert administrative decision-maker relevant on appeal by way of rehearing
6. › Whether delegate's decision admissible as jurisdictional fact and expert opinion
7. › Evidence Act 1995 (Cth), ss 56(2), 76, 77, 79
1. Evidence
2. › Hearsay
3. › Exception for evidence relevant for non-hearsay purpose
4. › Prior art citation and declaratory evidence tendered as bases for expert opinion
5. › Whether s 60 of Evidence Act overcomes hearsay rule in s 59
6. › Evidence Act 1995 (Cth), ss 59, 60
1. Practice and Procedure
2. › Leave to appeal
3. › Evidentiary ruling at trial
4. › Whether matter of public importance
5. › Federal Court of Australia Act 1976 (Cth), s 24(1A)

Quick Take

While the Evidence Act applies to patent opposition appeals, the Commissioner's delegate's decision and underlying materials are admissible as expert opinion evidence under ss 77/79 and the hearsay exception in s 60 of the Evidence Act, but must be properly tendered.

Case Details

Citation[2008] FCAFC 182

Reported(2008) 172 FCR 394

CourtFCAFC

JurisdictionCommonwealth

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2025Commonwealth Scientific and Industrial Research Organisation v Urrbrae Foods Pty LtdFCA 1591
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2024Caporaso Pty Ltd v Mercato Centrale Australia Pty LtdFCA 138
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