Has the Bar been Raised? Standard of Proof in Patent Opposition Proceedings

摘要

Subsection 60(3A) of the Patents Act 1990 (Cth) (Act) specifies the standard of proof to be applied in an opposition brought to the grant of a standard patent. It provides that an application for a standard patent may be refused if the Commissioner (usually by her Delegate) or the Court, in an appeal under s.60(4), is satisfied, on the balance of probabilities, that a ground of opposition to the grant of the standard patent exists. Subsection 60(3A) was introduced by the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 (Raising the Bar). Before those amendments, s.60 did not specify the applicable standard of proof, although the court had determined that in refusing an application for a standard patent, the Commissioner, and the court on appeal, had to be "practically certain" (or "clearly satisfied") that a patent granted on the application would be invalid.