Commonwealth Consolidated Regulations

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FEDERAL COURT RULES 2011 - RULE 34.46

Dispute of validity of patent--particulars of invalidity

  (1)   A party who disputes the validity of a patent under the Patents Act must include in the pleading or other document in which the party disputes the validity, particulars of the grounds of invalidity on which the party relies.

  (2)   If a ground mentioned in subrule (1) is that the invention is not a patentable invention because of information about the invention in a document or through the doing of an act or thing, the particulars must specify:

  (a)   for a document--the time when, and the place where, the document is alleged to have become publicly available; and

  (b)   for an act or thing:

  (i)   the name of the person alleged to have done the act; and

  (ii)   the period within which, and the place where, the act is alleged to have been done publicly; and

  (iii)   a description that is sufficient to identify the act; and

  (iv)   if the act relates to apparatus or machinery--whether the apparatus or machinery exists and, if so, where it can be inspected.

  (3)   If a ground mentioned in subrule (1) is that the invention, to the extent that is alleged in the complete specification of the patent, is not useful, and it is intended for that ground to rely on the fact that an example of the invention that is the subject of the claim cannot be made to work at all or as described in the specification, the particulars must:

  (a)   identify each claim; and

  (b)   state that fact; and

  (c)   include particulars of each such example, specifying the respect in which it is alleged that it does not work at all or as described.

  (4)   A party is not entitled to tender any evidence in, or make any submissions in support of, a ground for revocation or rectification not stated in the application.


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