Dismissal of opposition

The case of Memcor Australia Pty Ltd v Zenon Environmental Inc. [2008] APO 14 follows on from decision of Delegate McCaffery in Les Laboratoires Servier v Apotex Pty Ltd [2008] APO 11 (11 April 2008).

This case relates to an application by Zenon Environmental Inc. for dismissal of an opposition under section 104 by Memcor Australia Pty Ltd. In this decision Delegate Barker confirms that the new practice of the Australian Patent Office in considering such applications will be that as reflected in section 31A of the Federal Court of Australia Act ie namely whether an opposition has any no reasonable prospect of success as opposed to the previous test which was whether an opposition is obviously or manifestly groundless or untenable.

In addition Delegate Barker reaffirms the longstanding view that decisions of the Commissioner do not give rise to an issue estoppel.

The decision is here.