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8.7.5 Claims are Fairly Based

Date Published

The statutory requirement of fair basis first occurred with the commencement of the 1952 Act. The High Court has made clear in a number of cases (Olin Corporation v Super Cartridge Co Pty Ltd (1977) 180 CLR 236 at 240, Kimberly-Clark  v Arico (2001) 207 CLR 1 and Lockwood v Doric [2004] HCA 58) that authorities decided before the enactment of the 1952 Act should now be treated as being of very limited assistance in the construction of s40(3).

The High Court has also stated that United Kingdom decisions after the repeal of the UK 1949 Act in 1977 do not provide any precedent for the interpretation of fair basis in Australian law.

Consequently, cases like Mullard Radio Valve Co Ltd v Philco Radio and Television Corporation of Great Britain Ltd (1936) 53 RPC 323 and Biogen Inc v Medeva plc [1997] RPC 1 (HL), do not provide relevant precedent in Australia.

Amended Reasons

Amended Reason Date Amended
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