In Federal Court cases decided in 2011 and 2012, SNF (Australia) Pty Ltd sought to revoke five innovation patents owned by Ciba Specialty Chemicals Water Treatments Limited, and to obtain relief for unjustifiable threats of infringement proceedings. Ciba cross-claimed for infringement. At first instance, the patent claims were held to be valid and infringed. As reported in an earlier briefing, SNF then unsuccessfully appealed to the Full Federal Court, which upheld the primary judge's findings in relation to validity (SNF did not challenge the infringement ruling). One of the main issues in each case was the interpretation of the claims, and in particular the meaning of the term "rigidification" in relation to mine tailings.
Having lost in the Full Federal Court, the only avenue of appeal left for SNF was to seek special leave to appeal to the High Court of Australia. The nature of SNF's application is not yet known. It will be interesting to see whether the appeal relates to the lower Courts' findings in relation to innovative step as well as in relation to the claim interpretation issues. Either way, if special leave is granted, it will be the first time that the validity of an innovation patent has been considered by the High Court.
The special leave application will be heard in Melbourne on 15 March 2013. We will keep you updated as to the status of the case.