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Canva Pty Ltd [ 2021] APO 35  (17 September 2021)

Last Updated: 17 September 2021

IP AUSTRALIA

AUSTRALIAN PATENT OFFICE

Canva Pty Ltd  [2021] APO 35 

Patent Application: 2020202729

Title: Systems and methods of generating a website

Patent Applicant: Canva Pty Ltd

Delegate: Dr S. J. Smith

Decision Date: 17 September 2021

Hearing Date: Written submissions filed on 15 March 2021

Catchwords: PATENTS – section 223 – application for extension of time to rely on the grace period prescribed in regulation 2.2C(3) – full and frank disclosure – discretionary considerations – application for extension of time to be advertised for opposition purposes

Representation: Patent attorney for the applicant: FPA Patent Attorneys

IP AUSTRALIA

AUSTRALIAN PATENT OFFICE

Patent Application: 2020202729

Title: Systems and methods of generating a website

Patent Applicant: Canva Pty Ltd

Date of Decision: 17 September 2021

DECISION
Pursuant to section 223(4) the application for an extension of time under section 223(2)(a) to file a complete application within the period prescribed under section 24(1) and regulation 2.2C(3) will be advertised in the Official Journal. If no opposition is filed, the extension of time will be allowed.

REASONS FOR DECISION

Background
1. Patent application 2020202729 (the application) in the name of Canva Pty Ltd (Canva) was filed on 23 April 2020 claiming priority from US 16/393860 (the US application) which was filed on 24 April 2019. At filing, Canva sought an extension of time of 12 months for “filing a complete application within the period prescribed under section 24(1)”.^[1] That is, while the application was filed in time to claim priority from the US application, Canva sought an extension of time of 12 months (to 1 May 2020), to file a complete application within the grace period.

2. Following a series of requests for further information, the delegate was not satisfied that the extension was justified by the material provided in support and informed the applicant that they intended to refuse the request. Canva requested a hearing on 12 February 2021 and the matter was heard by way of written submissions that were filed on 15 March 2021.

The law

3. The request is to extend the time to file the application within the grace period. The relevant grace period provisions are set out in section 24(1) of the Patents Act 1990 (the Act):

“(1) For the purpose of deciding whether an invention is novel or involves an inventive step or an innovative step, the person making the decision must disregard:

(a) any information made publicly available in the prescribed circumstances, by or with the consent of the nominated person or patentee, or the predecessor in title of the nominated person or patentee; and

(b) any information made publicly available without the consent of the nominated person or patentee, through any publication or use of the invention by another person who derived the information from the nominated person or patentee or from the predecessor in title of the nominated person or patentee;

but only if a complete application for the invention is made within the prescribed period.”

4. Regulation 2.2C relates to the present circumstances and pursuant to regulation 2.2C(3) the prescribed period is 12 months from the day the information was made publicly available.

5. Section 223 of the Act provides that:

“(2) Where, because of:

(a) an error or omission by the person concerned or by his or her agent or attorney; or

(b) ...

a relevant act that is required to be done within a certain time is not, or cannot be, done within that time, the Commissioner may, on application made by the person concerned in accordance with the regulations, extend the time for doing the act.”

6. The meaning of the term “relevant act” is defined by section 223(11) and regulation 22.11(4). The Deputy Commissioner recently considered the applicability of section 223 to the grace period provisions:

“The meaning of a relevant act is defined by section 223(11) and regulation 22.11(4)(a). The applicability of section 223 to the grace period provisions was considered in Ashmont v American Home Products.^[2] In that decision the Deputy Commissioner rejected submissions that section 223 could not be enlivened in respect of section 24(1) since it requires that information may be disregarded ‘only if a patent application for the invention is made within the prescribed period.’ She considered that this did not alter the fact that there is a clear reference in section 24(1) to a prescribed period, and that there was no clear indication in the legislation to exclude section 24 from the provisions of section 223. I have no submissions or any other material before me that would lead me to depart from that approach.”^[3]

Similarly, I will proceed on the basis that the period prescribed in regulation 2.2C(3) is amenable to extension under section 223.

7. The following principles for applying the provisions of section 223 are derived from decided cases:

(i) The statutory provision to extend time is beneficial in nature and should be applied beneficially.^[4]

(ii) While the applicant has the burden of placing before the tribunal the circumstances it claims will justify the grant of an extension of time, that does not amount to a burden of proof and it is not appropriate that it be so described.^[5]

(iii) For section 223(2)(a) to be enlivened, it must be shown that an error or omission had contributed to cause the failure to perform the relevant act, i.e. there must be a causal connection between the error or omission and the relevant act that is required to be done within the stipulated time.^[6]

(iv) The applicants for an extension of time must demonstrate that they had an intention to do the relevant act within the time prescribed, and that an error or omission on their, or their agent’s, behalf reasonably could be said to have frustrated that intention.^[7] However, there will be exceptional circumstances where the relevant error precluded the formation of a specific intention. In such cases the required causal connection is satisfied if the error contributed to the failure to form the intention to perform the relevant act.^[8]

(v) “In order to make out the ‘proper case ... justifying an extension’ ... an applicant would ... have to go beyond a disclosure of the processes by which an agent’s errors came to be committed and would have to expose frankly, inter alia, all the conduct, knowledge, beliefs and mental processes of the applicant ... relevant to an understanding of the way the failure to do the act or take the step occurred, or relevant to an evaluation of the reasonableness of that conduct.”^[9]

8. The term “error or omission” in section 223 encompasses accidental slips, inadvertences and errors caused by faulty reflection;^[10] an unexpected failure to exercise due diligence and/or a flaw in mental function in carrying out an intention;^[11] and a breakdown in procedure in effecting an intention.^[12] Accordingly, the phrase “error or omission” has a broad scope.

9. However, the failure to perform the relevant act cannot itself be the “error or omission” by which the failure occurred^[13] and an error or omission does not include a deliberate policy or decision that leads to the failure to perform the relevant act,^[14] a change of mind with the benefit of hindsight,^[15] or misapprehension or ignorance of the law by itself.^[16]

The evidence

10. The basis for the extension of time is set out in the following declarations:

11. Relevant details regarding Mr Gonczi’s, Mr Lao’s and Mr Simmons’ roles within Canva are as follows:

• Mr Gonczi, formerly a Legal Counsel of Canva, had responsibility for managing the patent matters of Canva over the period from September 2018 to June 2019.^[17] Mr Gonczi reported to Mr Simmons in relation to these matters.^[18]
• Mr Lao, Legal Counsel of Canva, assumed responsibility for various patent matters, including the present matter, following Mr Gonczi’s departure from Canva in June 2019.^[19]
• Mr Simmons, Head of Legal at Canva since June 2017, was reported to by Mr Gonczi in relation to patent matters, including the present matter.^[20]

12. The applicant helpfully provided a timeline of events, which I have adapted below:

13. I understand that during the period from prior to 3 September 2018 to 31 May 2019 Canva instructed Toler Law Group, PC (Toler) in relation to filing patent applications for the invention the subject of the present application. Canva did not directly instruct any Australian patent attorney during that period.^[21]

14. Annexure A to Lao is an email dated 3 September 2018 from Mr Gonczi to Aakash Parekh of Toler, which reads:

“Wanted to flag a possible functional patent that we are looking to make an application for. The functionality is already in market for Canva but is going to become more ubiquitous as more and more of our users switch over to E2, so there will be benefit to moving quickly to get a filing in the US and Aus before the grace period expires.

Are you able to please take a look at this Google Doc and let me know what other technical info/guidance you would need from the engineers. If you are able to prepare a list of questions I can pass them on to Matt from the Showsquad team, or we could arrange for a call so you can discuss it with him directly.”

15. Mr Simmons indicated that the Showsquad functionality was released by Canva in May 2018: “[i]n particular at around that time the functionality was added to and accessible by Canva’s users via its website”.^[22]

16. Mr Gonczi explained that:

“Canva’s approach at the time was to file a patent application for an invention before public disclosure, if possible. In the event of a prior public disclosure, Canva would still file a patent application for an invention by taking advantage of the grace periods available in the United States and Australia.

By the statement ‘so there will be benefit to moving quickly to get a filing in the US and Aus before the grace period expires’ in the email of Annexure A,^[23] I intended that Toler Law Group attend to a patent filing strategy of filing patent applications in both the United States and Australia, within their respective grace periods.”^[24]

17. Accordingly, despite the somewhat tentative wording in the email with respect to a “possible functional patent”, I consider the totality of the evidence indicates that Canva had intended to file patent applications in Australia and the United States relating to the Showsquad functionality.^[25]

18. Mr Gonczi went on to state that he did not recall any change in that intention, and that he believed that the failure to file an Australian patent application within the grace period was an error.^[26] He elaborated as follows:

“I was asked by FPA Patent Attorneys Pty Ltd to elaborate on paragraph 8 of my first declaration, including what arrangements were in place for monitoring deadlines that were applicable to filing the Australian patent application for the Showsquad invention within the grace period.

At that time at Canva Pty Ltd (‘Canva’) we did not maintain our own systems for monitoring patent deadlines. According to our usual process for patent applications filed in the United States and Australia around the time the Showsquad invention was being considered, we would notify our external patent attorney of Canva’s decision to file a patent application, following which we were reliant on our external patent attorney to manage and comply with all relevant deadlines. Under that process, if a filing deadline were coming up for Australia or the United States and further action was required by Canva to meet the deadline, I expected to be and was notified of the matter by our external patent attorney and I would act responsive to that notification to ensure the deadline was met, including instructing the external patent attorney to take the appropriate action.

In relation to the Showsquad invention it is my recollection that I followed the process as outlined in paragraph 3 of this declaration. I informed Canva’s external patent attorney of Canva’s decision to file a patent application in Australia for the Showsquad invention within the grace period, in at least the email copied and attached as Annexure A to my first declaration. My expectation was that the external patent attorney would ensure that the deadline was met, including providing me with notification of the deadline as it approached if anything further was required from me to meet the deadline. The error I referred to in paragraph 8 of my first declaration is therefore a failure in this process.

Had I received such a notification from the external patent attorney prior to the deadline to file a patent application in Australia for the Showsquad invention within the grace period, I would have instructed the external patent attorney to proceed with the Australian filing.”^[27]

19. Other than the initial email reproduced in part above, no further communications between the US patent attorney and Canva regarding a possible Australian application have been provided, with the evidence indicating that no such communications were located in Canva’s records.^[28] Two emails are annexed to Simmons identifying US 16/393,860 as relating to the Showsquad functionality.

20. On 31 March 2020, Mr Lao advised an Australian patent attorney of Canva’s intention to file the application claiming priority from US 16/393,860. He subsequently became aware of the expiration of the grace period, having not been previously aware of a need to rely on the grace period, and instructed the filing of the application together with an application for an extension of time.^[29]

Was there a relevant error or omission?

21. In the correspondence advising of the intention to refuse the application for an extension of time, the delegate expressed a view that an intention to file an application in time to claim the benefit of the grace period had been established. I agree. The delegate’s concern was with the respect to the identification of an error; accordingly, the applicant’s submissions have focussed on this point.

The applicant’s submissions

22. The applicant submitted that there is evidence of both intent and a usual chain of events followed by the applicant to file an application in Australia, which was, due to an error, not completed. The applicant distinguished this from a situation in which the applicant says in retrospect that an action should have been taken. Specifically, the applicant identified a four step usual chain of events at the relevant time, which may be summarised as follows:

1. Canva would decide to file a patent application – prior to public disclosure if possible, and if not, taking advantage of the grace period available in Australia.

2. Canva would instruct its US patent attorney to attend to the filing of the Australian patent application (and a US patent application), which involved the US patent attorney attending to the monitoring of the relevant deadline.

3. Canva would act on any communications from the US patent attorney, such as reminders, to enable the application to be filed.

4. The US patent attorney was responsible for timely instructing an Australian patent attorney to file the application.

23. In the applicant’s submission, the applicant successfully attended to items 1 and 2, and partially step 3, “but there was an error in not following through with the process by completing step 4.” The applicant submitted that this was the relevant error for the purpose of section 223: “[t]he failure to complete step 4, contrary to the usual process of and for Canva, is clearly causative of the failure to timely file the Australian patent application.”

24. The applicant characterised the error as appearing to be “a lapsing of memory or an accidental slip” by the US attorney:

“Whether it was a lapsing of memory or an accidental slip in not putting in correct processes for monitoring the Australian filing deadline is not known. This may never be known for events that occurred years ago and involved an attorney who is no longer with the relevant attorney firm and has shifted into private practice. Section 223 does not require that the applicant prove the cause of an error or omission, it only requires that the applicant satisfy the Commissioner that there was an error or omission. To require more would be to act contrary to the plain meaning of the legislation and contrary to the remedial nature of the section that should be applied unless there is some clear indication to the contrary.”

25. In support of this proposition, the applicant referred to G S Technology Pty Limited v Commissioner of Patents,^[30] stating:

“...the Court cited with approval the Danby decision (Danby Pty Ltd v Commissioner of Patents [1988] FCA 43; (1988) 82 ALR 491) in which, like here,

‘...what happened was that instructions to oppose were firmly given but, through an error, not carried out. The error was not precisely identified, but one thing that went wrong was that no watch was instituted.’

...

As indicated by the statement that the ‘error was not precisely identified’, the identification of an error sufficient to enliven the extension of time provisions was not hampered by remaining doubt as to whether there was a failure to tell someone to instigate a watch or a failure to carry out those instructions...”

Consideration

26. As the applicant concedes, the reason why no steps to timely file an Australian application were taken, despite that intention being communicated to the US patent attorney, is not clear. I accept that it could be due to a misunderstanding or misremembering of the law on the part of the US attorney, an accidental slip in recording the relevant date, or perhaps a failure to properly understand or follow up on Canva’s (somewhat equivocal) instructions. It is not apparent that any action on the part of Canva, for example, the failure to follow up on the Australian application, should be characterised as an error, given the process set out above wherein Canva relied on communications from the US attorney.

27. The absence of evidence from the relevant US attorney at Toler (who is no longer with that firm^[31]), which would be expected to speak directly to the circumstances surrounding the nature of the error, is regrettable, as is the lack of any contemporaneous documents that might illuminate any considerations around the filing of an Australian application. Clearly, evidence from a person with direct knowledge of the circumstances surrounding an error or omission is highly preferable and avoids the requirement for the Commissioner to draw inferences.

28. In the absence of direct evidence, or evidence from anyone at the US attorney firm,^[32] I must consider whether, on balance, it is a reasonable inference that there was an error or omission by the US attorney that led to the failure to file an Australian application in time to rely on the grace period. The absence of direct evidence leaves alternative inferences available, but, having regard to the totality of the evidence provided, I consider these less likely than that presented by the applicant. For example, there is no evidence to suggest that this is a situation like that in KGK Synergize Inc.,^[33] where there was a failure to have a properly maintained docketing system such that the failure to file the application would be an inevitable outcome of the use of an inadequate system, rather than an error enlivening the provisions of section 223. To the contrary, the US application was timely filed by the US patent attorney. There is also no evidence to suggest that there was a change in instructions, or that there was a deliberate decision by the US patent attorney not to file an Australian application within time to rely on the grace period for any other reason – the filing of the US application on 24 April 2019 indicates that they were still acting for Canva at or around the relevant time. Moreover, Mr Gonczi’s evidence is that he does not recall any decision not to file a patent application for the Showsquad invention in Australia and cannot think of any reason why he would have changed the filing strategy subsequent to the email of 3 September 2018, and the evidence of Mr Simmons is that he did not decide not to proceed with the Australian application, or “authorise any other person, including Mr Gonczi or Toler Law Group, to not proceed with or abandon the Australian Showsquad patent application.”^[34] Notably, Canva did proceed with the application in Australia, claiming priority from the US application. However, in the context of Mr Gonczi’s email to the US patent attorney and stated intention to rely on the grace period, I am prepared to take Mr Simmons’ evidence to mean that he did not instruct Mr Gonczi not to proceed in accordance with his intended filing strategy.

29. I note that given Mr Gonczi’s evidence that, at least at the time by which an application needed to be filed to rely on the grace period, a) Canva did not maintain their own systems for monitoring patent deadlines^[35] and b) the US attorney managed filing of patent applications in Australia,^[36] it is not clear what prompted Mr Lao to contact an Australian attorney directly in March 2020 or how Mr Lao became aware on or about 9 April 2020 of the grace period expiration. However, while evidence in this regard would be useful to establish a fuller understanding of the circumstances surrounding the eventual filing of the application within time to claim priority from the US application, I have no reason to conclude that any subsequent changes to Canva’s processes regarding its patent management are material to the failure to file the application within time to rely on the grace period.

30. On balance, I am satisfied that the evidence before me is sufficient to establish that there was an intention to file the application within time to rely on the grace period, and that in this case it is a reasonable inference that there was an error or omission by the US attorney which led to a breakdown in the procedure in place for filing of Canva patent applications, albeit of an unidentified nature. It has generally been accepted that a breakdown in a procedure effecting a party’s intention can be characterised as an error for the purpose of section 223.^[37] It is self-evident that this error is causal of the failure to file an Australian application within the applicable grace period.

Should the discretion be exercised?

31. I have found that an error prevented Canva from filing an application within the grace period prescribed by regulation 2.2C(3). However, the power provided by section 223(2) is discretionary – “the Commissioner may ... extend the time for doing the act” – and it remains to be considered whether the balance of relevant factors justifies the exercise of the Commissioner’s discretion in favour of Canva. Relevant factors to be considered include:^[38]

(i) whether the Commissioner is satisfied that a proper case has been made out justifying an extension;

(ii) whether there has been undue delay in seeking an extension of time;

(iii) the applicant’s interests; and

(iv) the public interest.

32. In balancing these factors, it is “more important to consider the consequences of extending or refusing to extend time than to debate the reasons why the act was not done in time”.^[39]

Has a proper case been made out?

33. As alluded to previously, it is well established that a full and frank disclosure of the circumstances surrounding an error is required:

“In order to make out the ‘proper case ... justifying an extension’ ... an applicant would ... have to go beyond a disclosure of the processes by which an agent’s errors came to be committed and would have to expose frankly, inter alia, all the conduct, knowledge, beliefs and mental processes of the applicant ... relevant to an understanding of the way the failure to do the act or take the step occurred, or relevant to an evaluation of the reasonableness of that conduct.”^[40]

34. Here, the ultimately presented case is the product of multiple requests by delegates of the Commissioner for further information. While it is preferable that all relevant evidence in support of an extension be provided at the earliest opportunity, there is no evidence to suggest that this is not a fulsome account of the information regarding the failure to file an application within the grace period which is at the disposal of the applicant, or that the applicant was deliberately withholding information.

35. As mentioned above, it is unfortunate that the applicant has not furnished any direct evidence from the US attorney, leaving a situation where it is possible to infer that an error did occur inasmuch as something has gone wrong, but precisely what that is remains obscured.

36. Nevertheless, I accept that the applicant has provided an account of its own actions and understanding based on the information within its control.

Has there been undue delay in seeking the extension of time?

37. Canva became aware of the expired grace period on 9 April 2020 and instructed filing of the Australian application and extension of time on 20 April 2020. There has been no undue delay in this regard.

38. To the extent that the declarations in support of the extension have been provided in response to multiple requests from the Commissioner over a period of some months, and finally together with written submissions filed in respect of this decision, the declarations have generally been provided promptly following the Commissioner’s requests. I do not consider that there has been delay in this regard which would weigh against the granting of an extension.

The applicant’s interests

39. Clearly, the applicant’s interests lie in the granting of the extension, such that its own earlier disclosure does not defeat the application.

The public interest

40. Given the potential impact of the grant of this extension on the novelty and inventiveness of the claimed invention, there are serious consequences to the public. That is, grant of the extension may ultimately lead to the granting of an exclusive right which would otherwise not be granted, which could be viewed as running counter to the public interest. However, there is a broad public interest in promoting innovation (that is, by rewarding it with a monopoly) and in the proper operation of the various provisions of the Act. I consider the public interest to be a neutral consideration.

41. Ultimately, I am mindful both of the beneficial nature of section 223 and of the comments of Spender J (albeit in relation to actions related to the maintenance of an application) in G S Technology Pty Limited v Commissioner of Patents:

“Most errors and omissions which lead to a failure to do an act or take a step are the result of negligence or incompetence. Where such errors and omissions are made against a clearly demonstrated desire to maintain the application (and thus not have it lapse), and where attempts are made to remedy the error or omission as soon at its consequences are discovered and the existence of the error or omission learnt, as is the case here, the considerations in favour of an extension seem to me to be quite persuasive.”^[41]

42. Having regard to the factors set out above, on balance I am satisfied that it is appropriate to exercise the discretion in this case.

Conclusion

43. On the evidence before me I am satisfied that Canva’s failure to file the application within the period prescribed by regulation 2.2C(3) was the result of an error or omission enlivening the provisions of section 223(2)(a). As the application is for an extension of time of greater than 3 months, pursuant to section 223(4) the Commissioner must now advertise the application in the Official Journal. If no opposition is filed, the extension of time will be allowed.

Dr S. J. Smith

Delegate of the Commissioner of Patents

^[1] I note that the extension of time application was initially misunderstood as an extension of time to claim Convention status, deemed unnecessary, and the fee refunded. The applicant again applied for an extension of time and paid the applicable fee on 25 May 2020.
^[2] [2002] APO 24.
^[3] Amicus Therapeutics, Inc. [2020] APO 4 at [12].
^[4] Re Sanyo Electric Co Ltd and Commissioner of Patents [1996] AATA 832; (1996) 36 IPR 470 at 479 [16].
^[5] Ibid.
^[6] Kimberly-Clark Ltd v Commissioner of Patents (No 3) [1988] FCA 421; (1988) 13 IPR 569 at 579 [9], 582 [15]; Re Lazer Safe Pty Ltd and Commissioner of Patents [2001] AATA 967 at [11].
^[7] Kimberly-Clark Ltd v Commissioner of Patents (No 3) [1988] FCA 421; (1988) 13 IPR 569 at 579 [9]; Re Lazer Safe Pty Ltd and Commissioner of Patents [2001] AATA 967 at [11].
^[8] Re Apotex Pty Limited and Commissioner of Patents [2008] AATA 226 at [21].
^[9] Kimberly-Clark Ltd v Commissioner of Patents (No 3) [1988] FCA 421; (1988) 13 IPR 569 at 583-584 [17].
^[10] Ibid at 579 [9].
^[11] Total Peripherals Pty Ltd v Commissioner of Patents [1998] AATA 784 at [14].
^[12] Oz Technology, Inc v Boral Energy Ltd [1999] APO 18.
^[13] Kimberly-Clark Ltd v Commissioner of Patents (No 3) [1988] FCA 421; (1988) 13 IPR 569 at 580 [11].
^[14] Re Weir Pumps Ltd and Commissioner of Patents and Stork Pompen BV [1988] AATA 331; (1988) 13 IPR 163 at 166-167 [9].
^[15] Amicus Therapeutics, Inc. [2020] APO 4 at [34].
^[16] Kmart Australia Limited [2011] ADO 2 at [25].
^[17] Gonczi 1 at [1].
^[18] Simmons at [4].
^[19] Lao at [1], [3].
^[20] Simmons at [2], [4].
^[21] Harrap 1 at [2]-[3], Gonczi 1 at [3].
^[22] Simmons at [7].
^[23] I note while Mr Gonczi refers to “Annexure A to this declaration”, no emails are annexed to Gonczi 1, and I understand Mr Gonczi to refer to Annexure A to Lao.
^[24] Gonczi 1 at [4]-[5].
^[25] In particular, Simmons at [6]: “In September 2018, Mr Gonczi was authorised to file patent applications on behalf of Canva in the United States and Australia.”
^[26] Gonczi 1 at [6]-[8].
^[27] Gonczi 2 at [2]-[6].
^[28] Lao at [7].
^[29] Lao at [8]-[9].
^[30] [2004] FCA 1017; (2004) 63 IPR 9.
^[31] Harrap 2 at [2].
^[32] I note that Mr Harrap reviewed documents in relation to the preparation of the patent application for the Showsquad invention provided to him by the McDonnell Boehnen Hulbert & Berghoff LLP, which has records of Toler concerning the Showsquad invention, comprising notes from a disclosure call held 10 October 2018, an email from James Gonczi to Aakesh Parekh dated 19 October 2018 forwarding technical information, emails dated 28 March 2019 and 11 April 2019 attaching draft specifications and figures, and a final draft application, and declared that none of those documents indicated a change in intent by anyone at Canva subsequent to the initial email to the US patent attorney: Harrap 2 at [2]-[5].
^[33] [2013] APO 72.
^[34] Simmons at [11].
^[35] Gonczi 2 at [3].
^[36] Gonczi 1 at [3].
^[37] See, e.g., Oz Technology, Inc. v Boral Energy Ltd [1999] APO 18; Langford and Commissioner of Patents and Clark (Party Joined) [2010] AATA 663 at [23].
^[38] Vangedal-Nielsen v Smith (Commissioner of Patents) [1980] FCA 163; 1A IPR 731 at 736.
^[39] Re Sanyo Electric Co Ltd and Commissioner of Patents [1996] AATA 832; (1996) 36 IPR 470 at 479 [16].
^[40] Kimberly-Clark Ltd v Commissioner of Patents (No 3) [1988] FCA 421; (1988) 13 IPR 569 at 583-584 [17].
^[41] [2004] FCA 1017; (2004) 63 IPR 9 at 24 [65].