LAWCOMM 785 Patent Practice – eVTOL Patent Challenge Analysis

Background

Your client, VertiDynamics Inc, is a mid-sized Californian aerospace company with an Australian subsidiary in Brisbane. It has developed SkyLynx, a five-seat electric vertical take-off and landing (eVTOL) air taxi with eight electric ducted fans on a tilting wing, battery modules housed in the wing, and a flight controller that redistributes thrust if a fan fails. It plans certification test flights in Queensland in mid-2027 and demonstration flights in Christchurch in 2028.

A UK competitor, EvoLift Technologies Ltd, holds national phase applications in Australia (AU 2020398765) and New Zealand (NZ 794512) from a PCT application claiming priority from a UK filing of 1 December 2019. The Australian application is still under examination (first examination report of 3 April 2026 raised clarity objections only, not yet answered); the New Zealand application was accepted, with acceptance published on 25 September 2026. Claim 1 in Australia covers an eVTOL aircraft with ducted fans on a tiltable wing and a controller that redistributes thrust on fan failure; the New Zealand claim 1 additionally requires battery modules housed within the wing. SkyLynx appears to fall within both claims.

Prior Material Located By The Client

• A March 2017 peer-reviewed journal article describing a tilting wing carrying multiple ducted fans on a hybrid turbine-electric aircraft with fuselage fuel tanks; it does not discuss fan failure.
• A 2016 US patent for a consumer quadcopter drone whose controller redistributes thrust when one rotor fails, stating the technique “may be applied to any multi-rotor vehicle”.
• A 2018 Chinese utility model (in Chinese only) describing a fixed-wing unmanned aircraft with batteries housed in the wing.
• A 14 June 2019 presentation by EvoLift’s then chief engineer at VertiCon 2019 in Munich, uploaded publicly the same day, showing a tilting ducted-fan wing aircraft and its “fan-out” thrust redistribution; EvoLift did not mention this in either application.

The Client’s Own Development And Filings

• Work on tilting ducted-fan configurations since August 2018; wind tunnel tests at a Brisbane university facility in February 2019 under a written confidentiality agreement.
• A September 2019 heads of agreement to lease a hangar near Brisbane and an order for two prototype fan units for 2020 delivery.
• An October 2019 closed investor meeting in San Francisco where slides of an early SkyLynx configuration (including thrust redistribution) were shown to twelve investors; the slides were marked “Confidential” but no confidentiality agreement was signed.
• A US provisional application on 20 March 2020, a PCT application on 19 March 2021 and national phase entry in Australia and New Zealand in September 2022; both applications are pending and unexamined.

Task: Letter Of Advice To The General Counsel

1. The options for challenging the applications in each jurisdiction, including the relevant timeframes, a brief outline of the possible grounds (without discussing their substance in detail) and the pros and cons of each option.
2. What the General Counsel should consider when deciding how to proceed, helping her make a qualitative assessment of the options, and how the strategy should be coordinated across both jurisdictions.
3. A brief assessment of the implications of EvoLift’s applications for VertiDynamics’ own pending Australian and New Zealand applications.
4. Where you need more information to advise fully, and how it might affect your advice.

Assumed Facts And Notes

• The Patents Act 1990 (Cth) applies in Australia and the Patents Act 2013 (NZ) in New Zealand.
• EvoLift is entitled to its 1 December 2019 priority date for every claim, and the UK priority application disclosed everything later shown at VertiCon 2019.
• The informal translation of the Chinese utility model is accurate; the specifications are identical apart from the claim difference noted.
• Procedural detail (such as evidentiary stages) is only needed to compare options; discuss costs qualitatively.
• Write for a commercially experienced in-house lawyer who is not a patent specialist; be practical, make a recommendation, and flag unsettled law or facts open to more than one reading. Do not assume facts beyond those stated.

Experts Answer on Above Law Questions on Patent Practice

In respect to New Zealand, it requires immediate action because the application was accepted on 25th September 2026, but in respect to Australian application, it is still under examination. The analysis of the New Zealand scenario indicates that the opposition window runs for 3 months from publication of acceptance. This implies that the deadline of 25th September 2026 requires evaluation of the exact journal Publication date and any kind of extension theretoo.

Options for challenging EvoLift

The options for challenging in respect to Australia are australia third party notice under section 27, australia opposition, and Australia Court revocation after grant. The possible ground for challenging under Australia third party notice is the lack of novelty along with 2019 VertiCon presentation and other prior acts. For Australia opposition, the possible ground is the patentability, entitlement and specification related grounds. In respect to Australia court revocation after grant, the possible ground is the lack of patentability entitlement and false representation, and specification defects.

In respect to New Zealand, the possible ground against New Zealand opposition is the lack of novelty, specification defect, false suggestion/ misrepresentation and other grounds. New Zealand re examination before grant, the possible ground included in validity including incentive step problems. Finally for the New Zealand revocation after grant, it is the statutory invalidity as the possible ground for challenging EvoLift.
In respect to Australia, IP australia clearly identifies a three month opposition period after the publication of acceptance, and the third party notice is relevant because the Australian application is still being examined. With respect to New Zealand, opposition needs to be filed within 3 months of acceptance Publication and IPONZ also permits re-examination of an accepted application before grant at the request of any person.

Recommended strategy

It is recommended to VertiDynaics to prepare an immediate NZ opposition and an Australian S 27 notice instead of waiting. The New Zealand position is more nuanced and a successful NZ opposition could remove the immediate NZ patent risk before grant.

Effect on VertiDynamics own Australian and New Zealand applications

The earlier priority of EcoLift creates a potential patentability problem for VertiDynamics own Australian and New Zealand applications. It is therefore important for VertiDynamics to review its claim and also perform investigation on investor disclosure because it takes place before EcoLift’s priority date, even though its confidential marking may impact whether it was publicly available.

Information still needed

The missing information that is required is full EcoLift Australian/NZ specification and prosecution history, original presentation and evidence of its public availability, investor meeting and confidentiality arrangements, and NZ acceptance publication date and opposition deadline.

Want Detailed Answers with References?

The analysis of Australia and New Zealand options to challenge EcoLift’s eVTOL patents above indicated important findings in relation to the options to challenge. With professional law assignment experts in New Zealand, get support with your technical assignments by visiting our New Zealand assignment help page. Also get access to solved assignment answers from University of Auckland to determine experts ability in writing assignments.