Australian IP Litigation: A Primer on the Federal Court’s Intellectual Property Practice Note (IP-1)

For international IP lawyers accustomed to the litigation cultures of the United States, Europe, or Asia, the Australian approach to intellectual property disputes has a distinctive mix of judicial case management, targeted evidence gathering, and procedural flexibility.

The Intellectual Property Practice Note (IP-1), issued by the Federal Court of Australia on 7 February 2025, sits within the Court’s National Court Framework (NCF) and is the principal procedural guide for IP cases. It is fair to say that the lion's share of trade mark, passing off, patent and copyright litigation, takes place in the Federal Court. Occasionally, the states' Supreme Courts are also an option as they are charged with jurisdiction over certain types of IP disputes.

IP-1 is intended to be read alongside:

•	Central Practice Note (CPN-1) – the overarching guide for case management in the Federal Court - as well as General Practice Notes regarding Expert Evidence and Survey Evidence•	Federal Court of Australia Act 1976 (Cth)•	Federal Court Rules 2011 (Cth) – particularly Division 34.3, which governs intellectual property proceedings
For foreign practitioners, understanding IP-1 is essential to tailoring strategies that align with Australian litigation culture, judicial expectations, and procedural norms. 1. Scope and Application

IP-1 applies to all intellectual property proceedings in the Federal Court, including:

•	Patents (standard, innovation, and supplementary protection certificates)•	Trade marks•	Copyright•	Registered designs•	Circuit layouts•	Plant breeders’ rights•	Geographical indications•	Related common law or statutory actions (e.g., passing off, misleading or deceptive conduct under the Australian Consumer Law)

The Practice Note applies immediately to all new cases filed after 7 February 2025, and to existing cases where practicable. 2. Case Commencement and Early Obligations
2.1 Filing Requirements
Applicants must provide key documents with the originating application and statement of claim, typically including:
•	Copies of relevant registrations, applications, and certification documents•	The decision under appeal (if an appeal from the Commissioner of Patents/Trade Marks)•	Any material supporting a request for urgent or expedited relief
These must be filed and served at least 7 days before the first case management hearing.
2.2 Fast Track Options
Where speed is essential—such as in product launches or imminent market disruptions—parties can request:
•	Fast Track procedures (often leading to trial within 6–9 months)•	Concise statements in place of traditional pleadings
Foreign counsel should note that this requires early, clear articulation of key issues. 3. Case Management: The Australian Style
3.1 First Case Management Hearing
At this initial stage, the Court expects the parties to address:
•	Identification of issues in dispute and potential narrowing of claims•	Whether a technical primer (tutorial for the judge) will be provided•	Management of expert evidence – timing, joint reports, and possible concurrent testimony (“hot tubbing”)•	In trade mark matters, whether survey evidence will be relied upon•	In copyright matters, whether subsistence and ownership will be contested
This early focus on efficiency reflects a hands-on judicial approach, contrasting with the more party-driven processes of some jurisdictions. 4. Discovery and Evidence Handling
4.1 Discovery
IP-1 aligns with the Central Practice Note in restricting discovery. The Court prefers:

•	No discovery unless necessary for the just resolution of the case•	Targeted, issue-specific disclosure rather than broad “category” discovery
This can be a cultural adjustment for counsel from jurisdictions with wide-ranging pre-trial discovery.
4.2 Expert Evidence
Australian IP trials often involve:
•	Concurrent expert evidence – experts from both sides give evidence together before the judge, discussing points of agreement and disagreement in real time•	Joint expert reports – narrowing the issues before trialForeign practitioners should prepare experts for a less adversarial, more discursive courtroom setting. 5. Procedural Evolution and Context
The 2025 IP-1 update builds upon:
•	1 July 2010 – Initial specialist patent procedures introduced•	2016 NCF reforms – Consolidation of practice notes, greater judicial case management, and focus on early resolution
The current version further codifies efficiency measures and modern litigation tools, reflecting the Court’s push toward cost-effective justice. 6. Strategic Takeaways for Foreign Counsel
•	Front-load preparation – key evidence and expert strategies must be ready before the first hearing•	Expect active judicial involvement – case management is judge-led, with timetables tailored to each matter•	Be concise and focused – pleadings and submissions should avoid unnecessary complexity•	Train your experts – expert evidence can be key Comment
For foreign IP lawyers, mastering IP-1 is less about memorising every clause and more about adapting to a system that prizes early clarity, limited discovery, and cooperative evidence handling. The 2025 version cements the Federal Court’s role as a proactive manager of IP litigation, delivering outcomes that are both timely and proportionate to the commercial stakes involved.