Say it isn't so: Incorporations by reference and priority claims

Multigate Medical Devices Pty Ltd v B Braun Melsungen AG [2016] FCAFC 21 (3 March 2016)

Executive Summary

• For priority claim purposes, the invention in a divisional application need only be disclosed, rather than be described, in the priority application or parent application(s).
• A reference to figures of an earlier filed application in a divisional application was sufficient to incorporate the description of those figures into the divisional application and thus provide support for the priority claim.
• Applicants should ensure that the disclosure in any divisional application includes the disclosure of any parent or ancestor applications by using an explicit incorporation by reference.