No Evidence, No Opposition: The v2food Lesson for Patent Opponents

In January 2026, plant-based food company v2food lost its patent application in comprehensive fashion. IP Australia's delegate upheld an opposition and found every claim lacked an inventive step. Three months later, v2food's patent was heading to grant, without the company having to prove anything at all. The Federal Court's decision in v2food Pty Ltd v Provectus Algae Pty Ltd [2026] FCA 436 is a judgment with a big message for anyone on either side of a patent opposition, that the fight runs on evidence, and it isn't over until the appeal window closes.

The dispute

V2food, the Australian venture known for its plant-based meat products, applied for a patent for "Food colouring agents" (AU 2021247417). According to commentary on the underlying dispute, the technology involves an algae-derived pigment that gives meat alternatives a raw-red appearance which changes colour on cooking, mimicking the real thing.

Algae biotechnology company Provectus Algae opposed the grant. Before the delegate, it succeeded on a single ground: lack of inventive step, based on the evidence Provectus itself had filed. All claims fell, and the application was refused.

The appeal: a fresh start, not a review

v2food appealed to the Federal Court under s 60(4) of the Patents Act 1990. Here is the feature of Australian patent procedure that decided the case and that many patent owners and opponents underappreciate. As Justice Perram explained, such an appeal "is an exercise of the Court's original jurisdiction and proceeds as a hearing de novo. The Court determines the matter afresh on the evidence before it" (cf. par. [4]).

In other words: the delegate's decision, the delegate's reasoning, and the evidence filed at the Patent Office count for nothing unless re-established before the Court. And the burden of doing so falls on the opponent.

Provectus, evidently unwilling to fund a second round, filed a submitting notice (agreeing to abide by the Court's decision, save as to costs) and filed no evidence. The Commissioner of Patents also declined to be heard.

The result followed inevitably. "Where the Court hears an appeal under s 60(4) and there is no evidence before the Court capable of supporting any ground of opposition, the Court cannot uphold the opposition" (at [6]). The appeal was allowed, the opposition dismissed, and the application ordered to proceed to grant. The Court didn't even need to consider v2food's criticisms of the delegate's reasoning: "The appeal succeeds because the respondent has not discharged its onus" (cf. par. [12]).

But wait — didn't another case say the applicant still has work to do?

In recent case law might recall CSIRO v Urrbrae Foods [2025] FCA 1591, an applicant appealing an opposition loss was encouraged to file evidence even though the opponent wasn't participating. Justice Perram distinguished it neatly. In CSIRO, the adverse finding (lack of support) stemmed from a gap in the applicant's own case, a gap that remained on appeal regardless of the opponent's absence. In v2food's case, the delegate's finding rested entirely on the opponent's evidence: "Without that evidence being before the Court, there is no avenue by which the opponent's opposition to the grant may be upheld" (cf. par. [11]).

Therefore, if you lost at the Office because of a hole in your evidence, walking into a de novo appeal empty-handed won't save you. If you lose because of an opposition’s evidence, their withdrawal is decisive.

What this means for your business

1. If you're a patent applicant facing (or having lost) an opposition:

An adverse APO decision may not be the final verdict. The de novo appeal gives you a complete re-run before a judge, and the opponent must rebuild its case from scratch.

Before conceding, assess your opponent's appetite: an opponent that won on paper-thin margins, or that has limited litigation budget, may not front up for round two.

1. If you're considering opposing a competitor's patent application:

Budget for the whole journey, not just the Office proceedings. A win before the delegate can be undone by a well-resourced applicant's appeal — and if you can't fund evidence in the Federal Court, your Office victory may prove temporary.

Avoid entering into an opposition on submissions alone. Expert evidence is more important than ever.

1. For both sides:

Grant is not immunity. As the Court noted, allowing an application to proceed to grant leaves validity open to full challenge in revocation proceedings. An opponent who retreats from the appeal keeps its powder dry for another day — with a full trial process, discovery and better evidence.

The bottom line

v2food's patent survived not because the Court decided the invention was inventive, but because no one was left in the room to prove it wasn't. That's the procedural reality of Australian patent oppositions. The onus never leaves the opponent, and the evidence never carries over. Whichever side of an opposition you're on, your strategy needs to account for the possibility of appeal.