2.9.1 Appeal from an invalidity decision of a court
An appeal from an invalidity decision of a court must be filed within 28 days of the date of the judgment or order unless an extension is granted.146 The appellate court is usually the Full Court of the Federal Court of Australia. The appeal will be heard by three judges of the Federal Court, although, in some cases of particular significance (e.g., where a previous appellate authority is called into question), the appeal may be heard by five judges. Such an appeal is not a hearing de novo but is an appeal by way of rehearing.
The Full Court conducts a review of the trial judge’s reasons and the evidence to determine whether the judge has made an error – legal, factual or discretionary.147 The Full Court may affirm, reverse or vary the judgment appealed from and may give such judgment or make such orders as in all the circumstances it thinks fit. The Full Court may grant relief itself or may remit the proceeding for further hearing and determination.148 The Full Court will consider the evidence that was before the trial judge and may draw inferences of fact from such evidence. In special and limited circumstances, the Full Court may, in its discretion, receive further evidence. The Full Court will similarly not usually allow a party to raise a ground or an issue that was not raised at first instance.
If an error of fact is found to have been made, the Full Court will substitute its own findings of fact. In fact-finding circumstances involving the credibility of witnesses, the Full Court will generally not interfere with a trial judge’s finding of fact unless it is demonstrated to be wrong by “incontrovertible facts or uncontested testimony,” “glaringly improbable” or “contrary to compelling inferences.”149 This recognizes the special advantages of a trial judge. Where matters of impression or evaluative judgment are concerned, the Full Court will accord proper weight to the views and advantages of the trial judge.
The filing of an appeal does not itself operate to stay the first-instance decision. Therefore, a stay of the whole or part of the orders is often sought pending the determination of the appeal. In deciding whether to grant a stay, the court will consider whether an arguable ground has been raised on the appeal and whether the balance of convenience favors the granting of a stay. A stay will be granted where there is a likelihood that a successful appeal will be rendered nugatory. For this reason, an order revoking a patent is usually stayed, as there is some uncertainty as to the ability of the court on appeal to reinstate a patent once revoked.150