mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Meyers Taylor Pty Ltd v Vicarr Industries Ltd [1977] HCA 19 ; (1977) 137 CLR 228
Outcome: applied
Meyers Taylor Pty Ltd v Vicarr Industries Ltd [1977] HCA 19 ; (1977) 137 CLR 228 at 235, Aickin J said: The basic test for anticipation or want of novelty is the same as that for infringement and generally one can properly ask oneself whether the alleged anticipation would, if the patent were valid, constitute an infringement (see, e.g., Harwood v. Great Northern Railway Co. [(1865) [1865] EngR 708 ; 11 H.L.C. 654 , at p. 681 [1865] EngR 708 ; [11 E.R. 1488 , at pp. 1498-1499]). Here no prior object and no object according to a prior document involved or incorporated all the integers of any one of the claims and could therefore possibly constitute an infringement. Accordingly I am satisfied that the objection of want of novelty has not been made out. This test is applicable to the circumstance where the alleged anticipation resides in a prior apparatus that would, if it contained all of the necessary integers, fall within the scope of the claims. Therefore, this test would directly apply to the alleged anticipation constituted in the present case by the HECLA heater.
Case: Minnesota Mining and Manufacturing Company v Beiersdorf (Australia) Ltd [1980] HCA 9 ; (1980) 144 CLR 253
Outcome: applied
case advanced by Garth Living and Hotpoint in support of the proposition that the relevant claims in the Patent lacked novelty was rather loosely put in the sense that, as I understood it, it was impermissibly founded upon selectively aggregating individual items of information in order to present a mosaic or an entire picture favourable to those parties' case for revocation. This type of approach was rejected by the High Court in Minnesota Mining and Manufacturing Company v Beiersdorf (Australia) Ltd [1980] HCA 9 ; (1980) 144 CLR 253 at 292 293. Bitech submitted that: ... Neither the HECLA heater nor the apparatus described in any of the three prior patent specifications incorporates the feature of "screen means" which is capable of both diffusely transmitting light from a flame effect means and reflecting light from a fuel means so that simulated flames appear to emanate between the fuel means and an image of the latter means reflected on the screen means. This being an essential integer of Claim 1, upon which the other relevant claims are dependant, it is not necessary to go further. That submission was made good by my inspection of the HECLA heater and by a careful consideration of the prior patent specifications. The HECLA heater contains a very primitive attempt to simulate flames and fuel and plainly goes nowhere near the essential integers of the Patent referred to in Bitech's submission. The prior patent specifications do not provide clear and unmistakeable directions to construct an apparatus which incorporates the feature of the screen means which was the subject of Bitech's submission extracted at [126] above. Garth Living and Hotpoint were unable to present a coherent and persuasive submission which identified such clear and unmistakable directions. The evidence of Professors Nugent and Monro did not assist in that endeavour. Further, the generalised assertions made by Professors Nugent and Monro to the effect that the existence of the HECLA heater and Australian Patent Application No 3567/66 was part of the common general knowledge before the priority date of the Patent are not persuasive. The knowledge must be available to all in the relevant trade and must be treated as part of a general body of knowledge in that trade (see Minnesota Mining and Manufacturing Company 144 CLR at 292). Patent specifications do not become part of the common general knowledge merely by reason of their publication: Minnesota Mining and Manufacturing Company 144 CLR at 294 295.
Case: Populin v HB Nominees Pty Ltd [1982] FCA 45 ; (1982) 59 FLR 37 , (1982) 41 ALR 471
Outcome: applied
deciding whether a patent has been infringed, the Court is obliged to adopt a common sense construction of the claims in the patent, having regard to the prior knowledge as at the priority date, and, having done so, to determine whether the alleged infringer has taken all of the essential features or integers of the patentee's claims as determined by that construction ( Populin v HB Nominees Pty Ltd [1982] FCA 45 ; (1982) 59 FLR 37 at 40 41 [1982] FCA 45 ; , (1982) 41 ALR 471 at 475). The Patent is for an invention entitled "Apparatus for Simulating Flames". It was granted on 20 July 1992 on an application filed on 9 February 1990 as a Convention Application pursuant to Pt XVI of the 1952 Act. It claims priority from the filing of two basic applications in the United Kingdom on 10 February 1989 and on 15 September 1989 respectively. The Description The specification commences with a description of the nature of the invention and some relevant background. The first two paragraphs of that description, which appear between lines 3 and 16 on p 1a of the Patent, are in the following terms: This invention relates to apparatus for simulating flames. The apparatus may be part of, or embodied in a heating appliance (such as an electric or gas fire) in order to create the impression of flames due to combusting fuel. Many attempts have been made in the past to simulate combusting fuel. The prior art devices often included some means intended to represent flickering flames but they lacked realism. Moreover, when an appliance having such an effect is seen from day to day, it becomes less convincing with the passage of time. In many prior art devices, dust and dirt can also build up on various surfaces so that any initially pleasing effect is spoilt thereby detracting from any realism. At least the preferred embodiments of the invention seek to solve these problems.
Case: Ranbaxy Australia Pty Ltd v Warner-Lambert Co LLC (No 2) [2006] FCA 1787 ; (2006) 71 IPR 46
Outcome: applied
Ranbaxy Australia Pty Ltd v Warner-Lambert Co LLC (No 2) [2006] FCA 1787 ; (2006) 71 IPR 46 at [62] [64] (pp 61 62), Young J distilled from a number of authorities a set of principles which his Honour held should ordinarily guide the construction of patents. The observations which his Honour made in that case are reminiscent of the statements made by the Full Court in Jupiters [2005] FCAFC 90 ; 222 ALR 155 , 65 IPR 86 , AIPC 92-098 and need not be set out in full here. However, I am content to adopt and apply what his Honour said, which, to some extent, helpfully adds to the statements of principle made by the Full Court in Jupiters [2005] FCAFC 90 ; 222 ALR 155 , 65 IPR 86 , AIPC 92-098.
Case: Rehm Pty Ltd v Websters Security Systems (International) Pty Ltd (1988) 81 ALR 79
Outcome: cited
submitted, and I accept, that the scope of the claims made in a patent may, and almost always does, extend beyond a description of the preferred embodiment. In Rehm Pty Ltd v Websters Security Systems (International) Pty Ltd (1988) 81 ALR 79 at 95, Gummow J said: The circumstance that something is a requirement for the best method of performing an invention does not make it necessarily a requirement for all claims; likewise, the circumstance that material is part of the description of the invention does not mean that it must be included as an integer of each claim. Rather, the question is whether there is a real and reasonably clear disclosure in the body of the specification of what is then claimed, so that the alleged invention as claimed is broadly, that is to say in a general sense, described in the body of the specification.
Case: A J Burr Ltd v Blenheim Borough Council (1980) 2 NZLR 1
Outcome: referred to
Some cases advocate a position somewhere between the two poles. A J Burr Ltd v Blenheim Borough Council [1980] 2 NZLR 1 at 4 is an example. There, Cooke J said that other than in cases which involve "flagrant invalidity" an administrative decision is generally to be taken to be operative until set aside by judicial determination. 43 Likewise, the error in Bhardwaj might be characterised as "flagrantly invalid" to use the language of Cooke J in Blenheim . In their joint judgment, Gaudron and Gummow JJ referred to the decision as one which "clearly involved a failure to exercise jurisdiction". Hayne J said that it was not seriously disputed in the Courts below or in the High Court that due to an oversight, the Tribunal had not given the respondent the opportunity to appear and give evidence and present arguments which s 360(1)(a) of the Migration Act 1958 (Cth) required he be given before the Tribunal made the September decision. This was the jurisdictional error involved.
Case: Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1
Outcome: cited
It says, correctly, that when the jurisdiction of the Court to challenge an administrative decision is invoked whether under s16 of the ADJR Act or under s 39B of the Judiciary Act , the Court is confined to exercising judicial power. Since it is not permissible for the Court to exercise administrative power, it cannot conduct a merit review of the decision, that is, an inquiry to determine the correct or most appropriate outcome. Its role is limited to determining whether the administrative decision is within the power conferred on the official and whether the decision-making process, in so far as the decision-maker was bound to comply with a particular process, has been followed. The Court has no jurisdiction simply to cure administrative injustice or error. The merits of the administrative action as distinct from its legality are not a matter for the Court: Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 40-41; Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 35-36.
Case: Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336 
Outcome: cited
It is fundamental to the Authority's case that invalidity be established in respect of each approval and registration. It is necessary to establish that the decisions to approve and to register were actually induced or affected by fraud on the balance of probabilities and having due regard to Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336. This is sometimes referred to as operative fraud. It is not enough to prove a "real suspicion" or a "real possibility": Wati v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 103 at 112-113. Wati on this point was referred to with apparent approval by the High Court in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 ; (2007) 237 ALR 64 at [25] . The alleged fraud must affect the decision-making process: Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 171 ; (2008) 245 ALR 501 at [33] .
Case: Comptroller General of Customs v Kawasaki Motors Pty Ltd [1991] FCA 518 ; (1991) 103 ALR 661 
Outcome: referred to
Invalidity, in a particular case, may be demonstrated by consensus. In Comptroller General of Customs v Kawasaki Motors Pty Ltd [1991] FCA 518 ; (1991) 103 ALR 661 the Full Court concluded that an administrative order made under the provisions of Pt XVa of the Customs Act 1901 (Cth) could be revoked by agreement of the parties without the necessity for a judicial determination.
Case: Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 
Outcome: cited
The Authority has asked this Court to resolve the mixed questions of fact and law upon its core legal contention that the approvals and registrations variously were invalid because they were affected by fraud. The AAT has no jurisdiction to determine such a question of law: Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163. In treating the several approvals and registrations as invalid and of no effect the Authority did not exercise a regulatory power under the legislative scheme and has not made a decision reviewable under s 167(1)(f) of the Code or otherwise. 90 For the above reasons the application, to the extent that it seeks declarations that the 9 approvals and 52 registrations are of no legal effect, will be dismissed. Their removal from the Record and the Register was unlawful. The relevant approvals and registrations ought be restored to the Record and the Register, each effective from the respective dates of their original approval and registration. There will be declarations that the variation of the relevant particulars to 47 of the 52 registrations is, in each case, of no legal effect. This, as I have said, does not affect the validity of the prior registrations to which the variations relate. There ought, in respect to the first respondent, be declarations and prerogative relief, as sought by the applicant, subject to questions of unnecessary overlap. I will invite the parties to bring in a minute of consent orders. There will be liberty to the parties to apply in the event that such agreement cannot be reached. I will also hear the parties on the question of costs. I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate: Dated: 12 September 2008 Counsel for the Applicant: Mr J D Allanson SC Solicitor for the Applicant: Clayton Utz Counsel for the Second Respondent: Mr M McCusker QC with Mr K De Kerloy Solicitor for the Second Respondent: Freehills Date of Hearing: 23 July 2008 Date of Judgment: 12 September 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1393.html
Case: Forbes v New South Wales Trotting Club Ltd [1979] HCA 27 ; (1979) 143 CLR 242
Outcome: referred to
The relative invalidity school argues that invalidity is required to be established by judicial, not administrative, determination and any decision tainted by jurisdictional error is valid and effective in law until such a determination is made. Examples are to be found in Forbes v New South Wales Trotting Club Ltd [1979] HCA 27 ; (1979) 143 CLR 242 at 277 per Aikin J; Ousley v R per Gummow J at 130-131; R v Balfour; ex parte Parkes Rural Distributors Pty Ltd (1987) 17 FCR 26 at 33. It too has support amongst commentators: M Taggart, "Rival Theories of Invalidity" in M Taggart (ed), Judicial Review of Administrative Action in the 1980s Problems and Prospects (Oxford University Press and the Legal Research Foundation Inc, 1988) at p 70; Aronson and Dyer in Judicial Review of Administrative Action (2 nd ed, LBC, 2000) conclude on this issue at p 499: The truth is that there is no such thing as a complete nullity; it always takes a court decision to say so. Kirby J cites other strong support both judicial and from legal commentators in Minister for Immigration &amp; Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [103]-[104].
Case: Klewer v Dutch [2000] FCA 509 ; (2000) 99 FCR 217
Outcome: cited
Further, the applicant seeks a writ of certiorari against the AAT, quashing its decision to issue the stay orders commensurate with the ancillary or accrued jurisdiction of the Court to issue a writ of prohibition sought under s 39B(1) of the Judiciary Act : Klewer v Dutch [2000] FCA 509 ; (2000) 99 FCR 217 at 230 [53] - [54] per Hill J. 12 The Code is part of a legislative scheme including the Agricultural and Veterinary Chemicals Code Act 1994 (Cth), the Agricultural and Veterinary Chemicals (Administration) Act 1992 (Cth), and the Agricultural and Veterinary Chemicals Act 1994 (Cth). 13 The second reading speech in respect of the Agricultural and Veterinary Chemicals Code Bill contained the following: Through this mechanism, evaluation, registration and control of agricultural and veterinary chemical products and related matters will be administered uniformly across Australia by the National Registration Authority for Agricultural and Veterinary Chemicals. The control measures apply up to the point of retail sale with the states and territories remaining responsible for control of use matters. ... The agvet code focuses on the registration of chemical products, approval of active constituents, and approval of labels. The overriding criteria to be addressed by the NRA are public health, occupational health and safety, the environment, product performance, and trade and commerce. The public will be invited to comment in respect of each chemical product containing a new active constituent prior to determination of an application. The NRA will also be able to reconsider an existing registered chemical product to ensure it continues to meet contemporary safety and performance standards.
Case: Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24
Outcome: cited
It says, correctly, that when the jurisdiction of the Court to challenge an administrative decision is invoked whether under s16 of the ADJR Act or under s 39B of the Judiciary Act , the Court is confined to exercising judicial power. Since it is not permissible for the Court to exercise administrative power, it cannot conduct a merit review of the decision, that is, an inquiry to determine the correct or most appropriate outcome. Its role is limited to determining whether the administrative decision is within the power conferred on the official and whether the decision-making process, in so far as the decision-maker was bound to comply with a particular process, has been followed. The Court has no jurisdiction simply to cure administrative injustice or error. The merits of the administrative action as distinct from its legality are not a matter for the Court: Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 40-41; Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 35-36.
Case: Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 171 ; (2008) 245 ALR 501
Outcome: cited
It is fundamental to the Authority's case that invalidity be established in respect of each approval and registration. It is necessary to establish that the decisions to approve and to register were actually induced or affected by fraud on the balance of probabilities and having due regard to Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336. This is sometimes referred to as operative fraud. It is not enough to prove a "real suspicion" or a "real possibility": Wati v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 103 at 112-113. Wati on this point was referred to with apparent approval by the High Court in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 ; (2007) 237 ALR 64 at [25] . The alleged fraud must affect the decision-making process: Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 171 ; (2008) 245 ALR 501 at [33] .
Case: Ouslow v R [1997] HCA 49 ; (1997) 192 CLR 69 
Outcome: referred to
There has been much controversy as to whether invalid administrative decisions may simply be ignored by the decision-maker without judicial determination. The debate between the absolute and relative invalidity schools of thought is far from resolved. There is a very useful discussion of these in a paper presented by Robert Orr and Robyn Briese at an AIAL Forum in October 2002: Don't Think Twice? Can Administrative Decision Making Change Their Mind? Absolute invalidity means that a decision-maker, and those affected by the invalid decision may just ignore it as if it had never been made. There is no requirement for judicial review to achieve this result. It does not constitute a decision. Support for it is found in Ouslow v R [1997] HCA 49 ; (1997) 192 CLR 69 per McHugh J and by some commentators: Sykes, Lanham, Tracey and Esser, General Principles of Administrative Law (4 th ed, Butterworths, 1997) at 447
Case: Posner v Collector for Inter-State Destitute Persons (Vict) (1946) 74 CLR 461
Outcome: referred to
Hayne J attached significance to whether the earlier decision would be set aside by the Federal Court or the High Court under s 75(v) of the Constitution at [147], concluding that where a decision would be set aside the power has not been exercised: [142], [155], [157]. It might seem that the practical application of such a test by a decision-maker raises its own self-evident difficulties, absent clear authority on all fours, with the circumstances of the case in question. However I do not take his Honour to have been referring to circumstances other than where there is a clear error involved as in his citation at [152] of Dixon J in Posner v Collector for Inter-State Destitute Persons (Vict) (1946) 74 CLR 461 at 483 suggests. 41 How is invalidity to be determined? In the present case, alleged fraud amounting to jurisdictional error is involved. However the facts other than in respect to the variation of relevant particulars in respect of 47 existing valid registrations are in contest. Accordingly, it cannot be assumed that a Court would set aside the decisions of the Authority. Even in respect to the variations to the particulars, I do not think that it could be assumed that the provision of false particulars would lead a Court to declare the underlying valid registrations as thereby invalid. Posited in that way, it might be said that the necessary precondition to the right to ignore a decision, earlier made, has not been established and necessarily requires judicial determination of both fact and law on the question of validity.
Case: Queensland Medical Laboratory v Blewett (1988) 84 ALR 615
Outcome: cited
Founded on that original jurisdiction, the applicant also seeks declarations pursuant to s 21(1) of the Federal Court of Australia Act 1976 (Cth) in the Court's accrued jurisdiction: Queensland Medical Laboratory v Blewett (1988) 84 ALR 615 at 637 per Gummow J. Those declarations are to the effect that the approval of the active constituents and registration of the chemical products are of no legal effect because they were affected, procured, or induced by fraud.
Case: R v Balfour; ex parte Parkes Rural Distributors Pty Ltd (1987) 17 FCR 26 
Outcome: referred to
The relative invalidity school argues that invalidity is required to be established by judicial, not administrative, determination and any decision tainted by jurisdictional error is valid and effective in law until such a determination is made. Examples are to be found in Forbes v New South Wales Trotting Club Ltd [1979] HCA 27 ; (1979) 143 CLR 242 at 277 per Aikin J; Ousley v R per Gummow J at 130-131; R v Balfour; ex parte Parkes Rural Distributors Pty Ltd (1987) 17 FCR 26 at 33. It too has support amongst commentators: M Taggart, "Rival Theories of Invalidity" in M Taggart (ed), Judicial Review of Administrative Action in the 1980s Problems and Prospects (Oxford University Press and the Legal Research Foundation Inc, 1988) at p 70; Aronson and Dyer in Judicial Review of Administrative Action (2 nd ed, LBC, 2000) conclude on this issue at p 499: The truth is that there is no such thing as a complete nullity; it always takes a court decision to say so. Kirby J cites other strong support both judicial and from legal commentators in Minister for Immigration &amp; Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [103]-[104].
Case: R v Wicks [1997] UKHL 21 ; [1998] AC 92
Outcome: referred to
The concept of invalidity involves questions of mixed fact and law. There may be evidentiary considerations. In Leung, Finkelstein J, drawing on observations by Lord Hoffman in R v Wicks [1997] UKHL 21 ; [1998] AC 92 at 115, said at 413: In other words the presumption of the validity of an administrative decision, to the extent that the presumption is to be made in a particular case, is no more than a rule of evidence pursuant to which a certain assumption will be made by a judge unless there is evidence which contradicts that assumption. As Kirby J said in Ousley at 1594 the presumption is merely a tool in the process of reasoning to a decision. See also Wigmore on Evidence (1981) vol 9, par 2491.