In two separate decisions, IP Australia has taken the stance
that the grace period can be used to remove from consideration for
novelty a patent application published after the
filing date of the application under consideration, despite the
patent application having an earlier priority date. However, this
stance does not sit well with the wording of the relevant
legislation and has not yet been confirmed as correct by an
Australian court.
Rozenberg & Co Pty Ltd. v Velin-Pharma A/S [2017]
APO 61
The patent application under consideration, Australian Patent
Application No. 2010294197 owned by Velin-Pharma A/S ("the
'197 application"), had a filing date of 10 September 2010
and a priority date of 10 September 2009. The commonly owned cited
patent application published as WO 2010/118979 A1 ("D13")
designated Australia and is considered to represent an Australian
application. D13 had an earliest priority date of 7 April 2009, a
filing date of 7 April 2010 and a
