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Ajinomoto v NutraSweet [2008] FCAFC 34 - Australia: a resting ground for bad patents?
Richard Hamer, Partner, Josh Budin, Lawyer, and Harry Evans, Articled Clerk of Allens Arthur Robinson review Ajinomoto v NutraSweet [2008] FCAFC 34. According to Allens Arthur Robinson, the decision has been described by the judges involved as ‘making Australia a resting ground for bad patents’ and as ‘parochial and unwise’. For patent owners, however, it offers greater confidence in the validity of many Australian patents. Although information about these developments is available in Australia, in many fields there is no actual research being carried out in Australia. In these fields, Australian patents filed before 1 April 2002 have a relatively good chance of surviving an obviousness attack.
At first instance, Justice Finkelstein did not consider the requirement for information to be ‘relevant to work in the relevant art in Australia’. However, he commented that information widely circulated in Australia should not be ignored just because there was no work done in the relevant industry in Australia as at the priority date. His Honour said that if such information was ignored, ‘Australia would become a resting ground for bad patents’.
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