Federal Court of Australia

v2food Pty Ltd v Provectus Algae Pty Ltd [2026] FCA 436

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The decision of the delegate of the Commissioner of Patents made on 23 January 2026 be set aside.

3.    The respondent’s opposition to Australian Patent Application No. 2021247417 be dismissed.

4.    Australian Patent Application No. 2021247417 proceed to grant.

5.    There be no order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PERRAM J:

1    This is an appeal under s 60(4) of the Patents Act 1990 (Cth) (the ‘Act’) from a decision of a delegate of the Commissioner of Patents (the ‘Commissioner’) made on 23 January 2026. The delegate upheld an opposition by the respondent and refused to allow Australian Patent Application No. 2021247417 to proceed to grant. The appeal should be allowed.

2    The appellant, v2food Pty Ltd, is the applicant for Australian Patent Application No. 2021247417 entitled ‘Food colouring agents’. The respondent, Provectus Algae Pty Ltd, opposed the grant of the patent under ss 59 and 60(1) of the Act. The only ground on which the opposition succeeded before the delegate was lack of inventive step. It was on that basis that all claims were found to fail.

3    On 5‍ March‍ 2026, the respondent filed a submitting notice, save as to costs. On 11‍ March‍ 2026, the Commissioner informed the appellant that he did not wish to be heard or otherwise take an active role in the appeal.

4    An appeal under s 60(4) of the Act is an exercise of the Court’s original jurisdiction and proceeds as a hearing de novo. The Court determines the matter afresh on the evidence before it: European Community v Commissioner of Patents [2006] FCA 706; 68 IPR 539 at [9] per Young J (‘European Community’); Meat & Livestock Australia Limited v Cargill, Inc [2018] FCA 51; 129 IPR 278 at [6] per Beach J.

5    In this case, neither the opponent nor the Commissioner has actively participated in the appeal. Before filing its submitting notice the respondent had not filed any evidence in the proceeding. That circumstance is significant. The respondent was the opponent to the grant of the patent and it bears the onus of establishing the grounds of opposition relied upon.

6    Where the Court hears an appeal under s 60(4) and there is no evidence before the Court capable of supporting any ground of opposition, the Court cannot uphold the opposition. In that situation, the appropriate course is to allow the appeal and permit the patent application to proceed to grant. That conclusion does not foreclose any later challenge to the validity of the patent: s 20 of the Act; European Community at [15]-[19]; Cadbury Schweppes Plc v Effem Foods Pty Ltd [2006] FCA 1267; 69 IPR 584 at [12]-[20] per Lindgren J.

7    That approach has been followed consistently: see, for example, Delnorth Pty Ltd v Dura-Post (Aust) Pty Ltd (Administrator Appointed) [2010] FCA 465; 85 IPR 642 at [13]-[16] per Foster‍ J; Daiichi Sankyo Company, Limited v Alethia Biotherapeutics Inc [2016] FCA 1540 at [7] per Burley J; Novartis AG v Arrow Pharmaceuticals Pty Ltd (No 2) [2020] FCA 1475 at [6]-[7] per Burley J.

8    The circumstances here fall squarely within that line of authority. The respondent bears the onus of establishing a lack of inventive step or other ground of opposition. It has filed no evidence. There is therefore no material before the Court capable of supporting any ground of opposition.

9    The appellant drew attention to Commonwealth Scientific and Industrial Research Organisation v Urrbrae Foods Pty Ltd [2025] FCA 1591 (‘CSIRO’), in which Beach J encouraged the filing of evidence by an appellant notwithstanding the absence of participation by the opponent or the Commissioner (at [8]).

10    The appellant is correct that CSIRO does not require a different approach to be taken here to European Community or the other cases referred to above. In CSIRO, the delegate’s conclusion turned on an alleged lack of support discerned from the patent specification. As Beach J noted at [29]-[31], there was no evidence before the delegate that a person skilled in the art equipped with the common general knowledge would have been able to make the claimed grain in a range of genetic backgrounds including, relevantly, the EGA Hume genetic line. It was the absence of evidence of that kind which had led the delegate to conclude that the patent was invalid for a lack of support. The delegate’s conclusion that the patent was invalid therefore flowed from a lacuna in the patent applicant’s evidence rather than an acceptance of anything in the opponent’s evidence. In that circumstance, the lacuna remained on appeal to this Court even though neither the opponent nor the Commissioner took part. It was in that circumstance that Beach J had invited the appellant to put on evidence.

11    Such are not the facts of this case. Here the invalidity found by the delegate arose from the opponent’s evidence on the topic of inventive step. Without that evidence being before the Court, there is no avenue by which the opponent’s opposition to the grant may be upheld.

12    The appellant’s notice of appeal advanced a number of criticisms of the delegate’s reasoning on inventive step. In the absence of any response or evidentiary support for the opposition, it is neither necessary nor appropriate to descend into the merits of those criticisms. The appeal succeeds because the respondent has not discharged its onus.

13    The appeal should be allowed. The decision of the delegate made on 23 January 2026 will be set aside, the opposition dismissed, and Australian Patent Application No. 2021247417 permitted to proceed to grant. There will be no order as to costs, consistent with the orders proposed by the appellant.

Associate:

Dated:    15 April 2026