Notice to the Profession
Intellectual Property Practice Note – Standard Directions for Australian Patent Proceedings (IP-2)
8 August 2025
This notice provides background to the Intellectual Property Practice Note – Standard Directions for Australian Patent Proceedings (IP-2) published on 8 August 2025.
The Federal Court is implementing a national initiative to standardise the management of patent litigation through the use of standard directions and procedures. These directions will generally be made at the first return date, shortly after the filing of initial pleadings, and are designed to promote early issue resolution, strict adherence to timelines, and efficient management of complex matters.
Parties will be expected to raise key procedural matters, such as proposed amendments or reliance on experimental evidence, at the first return date. Any proposed variations to the standard directions should be agreed between the parties and submitted for the Court’s consideration in advance.
The Court anticipates that this approach will support the setting of a provisional trial date within 18 months of commencement and reinforce compliance with the overarching purpose set out in s 37M of the Federal Court of Australia Act 1976 (Cth).
Expert evidence
The initiative prescribes a consistent approach to expert evidence, with particular emphasis on streamlining expert conclaves. It sets clear parameters for the form of questions and minimises practitioner involvement, recognising the potential for delays and inefficiencies where this process is mismanaged.
Summary costs procedure
Following consultation with practitioners and consideration of feedback from members of the judiciary and legal profession in the United Kingdom (UK), the Court also intends to trial a summary costs procedure. In England and Wales, a summary assessment process has operated for over 25 years, having been introduced in 1999 following the Woolfe Report into Access to Justice: Final Report to the Lord Chancellor on the Civil Justice System in England and Wales.
The procedure is outlined in Annexure D to the Practice Note, and applicable to certain patent matters. This procedure will not apply to interlocutory applications for urgent injunctive relief at the commencement of proceedings.
The aim of the initiative is to encourage parties to carefully consider the filing of interlocutory applications. While the right to bring such applications remains an important part to court processes, they often involve significant time and cost and place a considerable burden on the court resources. Interlocutory proceedings frequently add to judicial workload and can extend the time to trial.
The summary assessment procedure being trialled in Australia will not replicate the UK model in full. The UK approach applies broadly to interlocutory and some final hearings, and is supported by specific rules, guidelines, and long-standing experience. By contrast, the Australian trial procedure will be limited to the costs of interlocutory applications and will be conducted in accordance with existing Federal Court practices concerning costs
Feedback and review
The Court invites feedback on the summary assessment procedure during the first 12 months of implementation, at which time it will be formally reviewed. The procedure will remain subject to ongoing review throughout the trial period.
Consultation on the effectiveness of the standard directions is also ongoing. Practitioners who wish to provide feedback are invited to contact the chambers of National Judicial Registrar Sussan O’Connor at Assistant.OConnorR@fedcourt.gov.au.
All comments will be anonymised before being referred to the Intellectual Property National Coordinating Judges for consideration.
Go to Intellectual Property Practice Note - IP-2 »
D S Mortimer
Chief Justice
Date: 8 August 2025
