v2food Pty Ltd v Provectus Algae Pty Ltd

This case arose from an opposition to an Australian patent application owned by v2food Pty Ltd. The application was Australian Patent Application No. 2021247417 and was titled 'Food colouring agents'. Provectus Algae Pty Ltd opposed the grant of the patent under the Patents Act 1990 (Cth).

At the Patent Office stage, a delegate of the Commissioner of Patents upheld the opposition on one ground only: lack of inventive step. That was enough for the delegate to conclude that all claims failed, and the application was refused on 23 January 2026.

v2food then appealed to the Federal Court under s 60(4). What makes the case notable is that the appeal did not become a conventional contested hearing about the science or technical patent merits. Instead, the respondent filed a submitting notice, save as to costs, and the Commissioner said he did not wish to take an active role. The matter was determined on the papers.

That left the Court with a narrower but commercially important question. If an opponent had succeeded below, but then did not actively pursue the opposition in the Federal Court and had filed no evidence in the Court proceeding, could the opposition still be upheld? The answer turned on the nature of a patent appeal, the burden of proof, and the source of the earlier invalidity finding.

The central issue was procedural but significant. Perram J had to decide what the Court should do in an appeal under s 60(4) where the only successful opposition ground below was lack of inventive step, yet there was no evidence before the Court capable of supporting that ground.

The judgment confirms that an appeal under s 60(4) is an exercise of the Court's original jurisdiction and proceeds as a hearing de novo. In practical terms, that means the Court determines the matter afresh on the evidence before it. It is not simply checking whether the delegate made an error on the material that had been before the Patent Office.

That point mattered because Provectus, the opponent, bore the onus of establishing the grounds of opposition it relied on. The Court recorded that before filing its submitting notice, the respondent had not filed any evidence in the proceeding. Neither the opponent nor the Commissioner actively participated in the appeal.

Once those facts were established, the Court's reasoning was direct. Where 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.

Perram J allowed the appeal. The Court set aside the delegate's decision made on 23 January 2026, dismissed Provectus Algae's opposition, and ordered that Australian Patent Application No. 2021247417 proceed to grant. There was no order as to costs.

The Court did not decide the detailed merits of the inventive step criticisms that v2food had raised in its notice of appeal. The reasons explain that, in the absence of any response or evidentiary support for the opposition, it was neither necessary nor appropriate to descend into those merits arguments. The appeal succeeded because the respondent had not discharged its onus.

The Court also made an important qualification for business readers. Allowing the application to proceed to grant did not foreclose any later challenge to the validity of the patent. So while the appeal outcome was commercially favourable to the applicant, it was not the same thing as a final judicial endorsement of validity against all future attacks.

The judgment specifically addressed Commonwealth Scientific and Industrial Research Organisation v Urrbrae Foods Pty Ltd [2025] FCA 1591. That earlier case might appear, at first glance, to point in a different direction because Beach J had encouraged the filing of evidence by an appellant even though the opponent and the Commissioner were not actively participating.

Perram J explained why there was no inconsistency. In CSIRO, the delegate's conclusion turned on an alleged lack of support discerned from the patent specification. The problem there was not that the opponent had proved invalidity through its own evidence and then failed to maintain that proof on appeal. Instead, the delegate's conclusion flowed from a lacuna in the patent applicant's own evidentiary position. As the judgment summarised, there had been no evidence before the delegate that a skilled person equipped with the common general knowledge would have been able to make the claimed grain in a range of genetic backgrounds, including the EGA Hume genetic line. Because the defect was a gap in the applicant's own case, that gap remained on appeal unless the applicant filled it.

v2food was different. Here, the invalidity finding below arose from the opponent's evidence on inventive step. That distinction was decisive. Once the matter reached the Federal Court without that evidence before it, there was no avenue by which the opposition could be upheld.

For businesses, this is the most useful doctrinal point in the case. You cannot assume that an opponent's silence on appeal always solves the problem. First ask what caused the refusal below. If the refusal was driven by a weakness in your own evidence or by a deficiency apparent from your own material, you may still need to put on evidence in the Court. But if the refusal depended on the opponent proving a ground and that proof is absent on appeal, the position is very different.

This decision is a practical reminder that patent disputes are not only about novelty, inventive step and expert science. They are also about litigation structure. The party with the onus must prove its case in the forum that is deciding the dispute. In a de novo appeal, that means the Federal Court needs evidence before it capable of supporting the opposition.

For patent applicants, the case shows that an adverse opposition decision is not always the end of the road. If the earlier refusal depended on the opponent's evidence and the opponent does not maintain that evidentiary case on appeal, the application may still proceed to grant. But applicants should not overread the decision. It does not mean every unopposed appeal will succeed. The Court's discussion of CSIRO shows that some refusals may rest on gaps in the applicant's own case, and those gaps may still need to be addressed.

For opponents, the case is a warning about disengaging from the Court process. A decision to file a submitting notice or otherwise step back may save immediate legal spend, but it can also remove the evidentiary basis needed to preserve the opposition. If the opposition ground depends on proof that only the opponent has put forward, failing to place that material before the Court can be fatal.

For founders and in-house teams, the commercial consequences can be broader than the litigation itself. Patent grant status can affect investor messaging, licensing discussions, product launch confidence and competitive positioning. This case shows that procedural decisions in an appeal can materially alter those commercial outcomes.

The judgment records a short but useful timeline. The delegate's refusal decision was made on 23 January 2026. Provectus filed a submitting notice, save as to costs, on 5 March 2026. On 11 March 2026, the Commissioner informed v2food that he did not wish to be heard or otherwise take an active role in the appeal. The matter was determined on the papers, with last submissions dated 2 April 2026. Judgment and orders were delivered on 15 April 2026.

That timeline helps explain why the case is so focused on procedure. By the time the Court came to decide the appeal, there was no active evidentiary contest before it. The Court therefore dealt with the legal consequences of that absence rather than conducting a full technical reassessment of inventive step.

Does this case mean a patent is safe once the Court orders it to proceed to grant? No. The Court expressly said the result does not foreclose later validity challenges.

Can an appeal succeed even if the applicant does not prove the invention is valid on the merits? Yes, in a case like this one, where the opponent bears the onus on the opposition ground and there is no evidence before the Court capable of supporting that ground.

Should an applicant always file fresh evidence on appeal? Not necessarily. The answer depends on why the delegate ruled against the application. The Court's comparison with CSIRO shows that if the problem below was a gap in the applicant's own case, evidence may still be needed. If the problem depended on the opponent's evidence and that evidence is absent on appeal, the analysis may be different.

What is the practical lesson for an opponent? If you want to preserve an opposition on appeal, do not assume the earlier Patent Office success will speak for itself. Consider carefully whether the Court will have evidence before it capable of supporting the grounds you rely on.