Abloy Oy v Australian Lock Company Pty Ltd - [2006] APO 23

ABSTRACTS OF DECISIONS
DECISION OF A DELEGATE OF THE COMMISSIONER OF PATENTS
Application : No. 748186 in the name of Abloy Oy

Title: Cylinder Lock-Key Combination

Action: Opposition under section 59 by Australian Lock Company Pty Ltd

Decision: Issued 9 June 2006
Abstract

The invention relates to a cylinder lock and key combination. It includes independent claims to the combination, the key blank and the key.
The opponent opposed the application on the grounds of novelty, inventive step, clarity, fair basis and manner of manufacture.
The opposition fails on all the grounds. Costs were awarded against the opponent.

PATENTS ACT 1990
DECISION OF A DELEGATE OF THE COMMISSIONER OF PATENTS
Re: Patent Application No. 748186 by Abloy Oy and Opposition under section 59 by Australian Lock Company Pty Ltd
BACKGROUND

Patent application 748186 was filed as a complete application on 21 September 1999 by Abloy Oy and claims priority from application No 982066 filed in Finland on 25 September 1998. The application was examined and advertised as accepted on 30 May 2002.
Australian Lock Company Pty Ltd filed a notice of opposition under section 59 on 30 August 2002. A statement of Grounds and Particulars was filed on 29 November 2002. The service of evidence in support, evidence in answer and evidence in reply was completed on 27 July 2005.
On 7 June 2004 the applicant filed a request to amend the application. These amendments were opposed by the opponent under Section 104. On 20 December 2005, the applicant formally withdrew the amendments, thereby ending the section 104 opposition proceedings. As a consequence the application under consideration in the present section 59 opposition is the same as that originally accepted.
A hearing to deal with the substantive opposition was held in Canberra on 29 March 2006. The applicant was represented by Mr Barry Hess (Senior Counsel) instructed by Mr Jeffrey Winch, Patent Attorney of Callinan Lawrie, Kew. The opponent was represented by Mr Peter Franke, Patent Attorney and Mr Simon Ellis, both from Watermark, Sydney.
GROUNDS OF OPPOSITION
Australian Lock Company Pty Ltd has opposed the application on the grounds of novelty, inventive step, manner of manufacture and clarity in their Statement of Grounds and Particulars. In addition at the hearing the opponent also raised the grounds of fair basis based on issues arising from the evidence provided by the applicant’s declarants.
EVIDENCE
Evidence in support provided by the opponent consists of a declaration by Mr Mark Wilson dated 17 September 2003. Mr Wilson is a Head Teacher of Locksmithing with the Sydney Institute and has over 27 years experience in the trade.
Evidence in answer provided by the applicant consists of declarations made by
- Mr Peter Anthony Mahoney dated 19 August 2004. Mr Mahoney is a retired Master Locksmith, who has worked in the Department of Foreign Affairs and Trade for 31 years.
- Mr Aulius Valdemar Gustafsson dated 16 July 2004. Mr Gustafsson is a registered European patent attorney who works for AWEK Industrial Patents Ltd OY which is partly owned by the applicant. As he has had extensive involvement with various patents of the applicant relating to cylinder lock technology over a number of years, he has acquired extensive knowledge of cylinder lock technology. Mr Gustafsson was personally responsible for drafting the specification of the opposed application.
Evidence in reply from the opponent consists of a further declaration from Mr Mark Wilson dated 21 July 2005.
SPECIFICATION
The invention relates to a cylinder lock and key combination. The specification in its preamble states that there is a growing market for selected lock mechanisms to have a large number of opening combinations and for new additional key profiles which are different from earlier key profiles and which can be utilised to keep the different lock groups separated from each other. The specification then states that an aim of the invention is to provide a novel cylinder lock-key combination; new keys intended therefor as well as blanks for the keys, adaptable specifically for locks provided with rotatable locking discs and which makes it possible to provide new key profiles which are operationally independent of prior known key profiles. A further aim which is mentioned is to provide versatility so that locks can be easily adapted to operate in one or two turning directions.
This is achieved by providing at least one locking disc of the cylinder lock with a key opening having at least two separate counter surfaces one of which cooperates with the corresponding combination surface of the key to turn the locking disc into the opening position of the lock, wherein for at least one of the counter surfaces at least two different combination values can be selected for the corresponding combination surface of the key.
A second aspect of the invention is directed to a key blank for the cylinder lock-key combination, the key blank having a shank with a substantially rectangular cross-section with at least one of its corners replaced by a bevel surface which forms a combination surface.
A third aspect of the invention is directed to a key for the cylinder lock-key combination made from such a blank, wherein the bevel surface forms one combination surface and the value of other combination surfaces cut on the bevel surface is determined on the basis of the combination of the angle of cut and the length of the cut surface.
The specification then describes the preferred embodiment of the invention. I think it will be useful to briefly discuss the features and operation of the invention and I intend doing this with reference to fig 1, 3 & 4a of the opposed application which are as follows:
A lock body housing 1 has a turnable lock cylinder 3 turnable by means of a key 2 of the lock. The lock cylinder encloses a set of code locking discs 4 which determine the opening combination of the lock and which are separated from each other by intermediate discs 5 which are non-rotatably supported in the cylinder 3. A locking bar 7 is receivable in a slot 8 of the lock cylinder 3 and a corresponding groove 16 in the inner surface of the lock body 1. In the locking position of the lock, the locking bar 7 is located, pressed by the locking discs 4, partly in the slot 8 and partly in the groove 16 in the lock body thereby preventing turning of the lock cylinder 3 relative to the lock body 1. Return bars 10 are used to return the locking discs 4 to their locking positions following opening of the lock mechanism. Each code locking disc 4 includes a key opening 4a having a counter surface 4a11 and a peripheral notch 4b on its outer peripheral surface. The key for operating the lock mechanism includes a combination surface for each code locking disc 4. when the key is inserted into the lock mechanism and turned the combination surfaces in the key contact the corresponding counter surfaces of the locking discs and rotate the discs so that the peripheral notches are brought into alignment forming a uniform channel into which the locking bar 7 can move thereby releasing the lock cylinder 3 for turning relative to the lock body.
All of the above is generic to cylinder or disk locks and both parties confirmed that these features are common general knowledge in the art.
According to the specification the invention of the opposed application has improved upon this prior art by providing two counter surface 4a11, 4a12 in each code locking disc 4. Depending on the length of the cut of the combination surface cut in the key blank, either one of the counter surfaces 4a11, 4a12 is contacted by the corresponding combination surface when the key is inserted into the key opening 4a and turned. Also for each counter surface 4a11, 4a12 more than one combination value 1,2,3,4,5 or 6 can be selected for the corresponding combination surface of the key, at the time of cutting the key, by changing the angle and/or length of the cut to be made on the key blank.
The specification ends with 24 claims with three independent claims directed respectively to the three aspects of the invention. The three independent claims are as follows:
1. A combination of a cylinder lock and a key (2) for the lock, the cylinder lock comprising a lock body (l), a turnable lock cylinder (3) located inside the lock body (1) and having a slot ( 8 ) therein, a set of locking discs (4, 6) located inside the lock cylinder (3) and each provided with
at least one peripheral notch (4b, 6b) determining the opening combination of the lock and with an opening (4a, 6a) for receiving the key, and a locking bar (7) which, in a locking position, prevents turning of the lock cylinder (3) relative to the lock body (1), the key (2) having a combination surface for each locking disc (4, 6), the combination surfaces being arranged so that, on insertion of the key into the lock and turning of the key, the locking discs (4, 6 ) are turnable into positions, in which their peripheral notches (4b, 6b) form a uniform channel at the position of the locking bar (7) and the said slot (8) in the lock cylinder ( 3 ) into which the locking bar (7) can enter
to release the lock cylinder (3) for turning relative to the lock body (1) , whereby at least one of the locking discs (4) has a key opening (4a) which includes at least two separate counter surfaces (4al1, 4a12) which can be arranged, in cooperation with one combination surface of the key ( 2 )
corresponding to said locking disc (4), to turn the locking disc (4) into the opening position of the lock starting from the same initial position of the key ( 2 ), characterised in that said counter surfaces (4al1, 4a12) in the key opening (4a) of said at least one locking disc (4) are so dimensioned and arranged relative to each other that for part of at least one of the counter surfaces (4al1, 4a12) at least two different combination values can be selected for the corresponding combination surface of the key (2) .
9. A key blank of a key for a combination according to any one of the preceding claims, the key blank having a shank (2a), characterised in that the basic form of said shank (2a) in the perpendicular cross-sectional plane of the shank and excluding any possible profile grooves or
corresponding grooves (2f) extending over the shank of the key is substantially rectangular with at least one corner being replaced by at least one bevel surface (2el) which forms at least one combination surface.
17. A key for a combination according to any one of the preceding claims 1 to 8 and/or made from a key blank according to any one of the preceding claims 9 to 16, characterised in that the basic form of the shank (2a) of the key blank in the perpendicular cross-sectional plane of
the shank exclusive of any possible profile grooves or corresponding grooves (2f) extending over the shank of the key is substantially rectangular so that its at least one corner is replaced by at least one bevel surface (2el) for providing combination surfaces in the key corresponding to the code locking discs (4) in the lock, in that said at least one bevel surface (2el) forms at least one selectable combination surface, and in that the value of other combination surfaces in the key is determined on the basis of the combination of the angle of the cut and the length of the cut surface of the cuts to be made in said bevel surface (2el).
DECISION
In proceedings such as these before the Commissioner the onus rests with the opponent to clearly establish its case in reaching a conclusion on any issue, and the standard of proof required is the civil standard of proof on the balance of probabilities (see, for example, Dunlop Holding's Ltd.'s Application [1979] RPC 523). As a tribunal, I am entitled to act on any material which is "logically probative" (T. A. Miller Ltd. v The Minister for Housing and Local Government and Another (1968) 1 WLR 992). In F. Hoffman-La Roche AG v New England Biolabs Inc [2000] FCA 283 Emmett J of the Federal Court found that in opposition proceedings the Court (and by implication the Commissioner of Patents in her role as a tribunal) should be "clearly satisfied that the patent, if granted, would not be valid". Where questions of fact such as obviousness and existence of invention are involved "the grant should not be refused unless it has been clearly shown that the grounds of opposition have been clearly made out" (Montecatini v Eastman Kodak (1971) 45 ALJR 593).
NOVELTY
The law on Novelty is well established.

"The basic test for anticipation or want of novelty is the same as that for infringement and generally one can properly ask oneself whether the alleged invention would if the patent were valid, constitute an infringement." (Meyers Taylor Pty Ltd v Viccar Industries (1977) 137 CLR 228).

Infringement is said to occur where "each and every one of the essential features of that claim have been taken" (Rodi and Wienenberger AG v. Henry Showell Ltd (1969) RPC 367).

"To anticipate the patentees claim, the prior publication must contain clear and unmistakable directions to do what the patentee claims to have invented ... A signpost, however clear, upon the road to the patentee's invention will not suffice. The prior inventor must be clearly shown to have planted his flag at the precise destination before the patentee." (General Tire & Rubber Co v Firestone Tyre & Rubber Co Ltd, (1972) RPC 457).

Although in the statement of grounds and particulars, the opponent had submitted that claim 1 was not novel over patent specifications US 2217047 and JP 7180406, at the hearing the opponent conceded that claim 1 was novel and therefore did not provide any further submissions in this regard. I have considered specifications US 2217047 and JP 7180406 and I agree that these documents do not deprive claim 1 of novelty.
The opponent however argued that claims 9 and 17 and their respective dependent claims lacked novelty.
Claim 9 is directed to key blank in which the basic form of the shank of the key blank in a cross-sectional plane is rectangular with at least corner being replaced by at least one bevel surface which forms a combination surface.
The opponent submitted that this claim is not novel in the light of the Abloy Disklock Pro key blank disclosed in the second last page of the Disklock Pro Technical Training Course Manual (exhibit MRW-14) and in the last page of exhibit PAM-6. They referred me to a line of text in the instructions in MRW-14 which reads “Zone A is pre-cut and is used to identify the dealer” as disclosing that the corner has a bevel surface and forms a combination surface. This interpretation was backed up by their expert, Mr Wilson, in his declaration.
On the other hand Mr Mahoney, the declarant for the applicant, in his evidence, while agreeing that the Disklock Pro key blank had a substantially rectangular profile and was supplied with all sharp edges minutely bevelled to allow for the key to be more easily inserted into the keyway, submitted that these bevelled surfaces did not form a combination surface and that exhibit MRW-14 does not disclose the features of the corner having a bevel surface and which forms a combination surface.
The difficulty I have in determining whether these documents anticipate claim 9 is that these documents are not detailed patent specifications. They are parts of an instruction or training manual for locksmiths. All they disclose in relation to the key blank are a side view of a key blank with various zones marked on it and some instructions for master keying. This side view does not show a bevel surface in Zone A. The only bevel seen in the figure is a bevel on Zone O at the front tip of the key. I have no evidence in front of me to even suggest that this would be implicit to a person skilled in the art and I therefore agree with Mr Mahoney’s interpretation.
At the hearing the opponent did not provide any further arguments to convince me that Mr Wilson’s interpretation is the correct one and is to be preferred to that of Mr Mahoney.
I am not satisfied that exhibit MRW-14 gives clear and unmistakeable directions to produce a key blank in which at least one of the corners is replaced with a bevel surface which forms at least one combination surface. Claim 9 and its dependent claims are therefore novel.
Claim 17 was also alleged to be not novel over exhibit MRW-14. This claim includes the limitations of at least one of the corners being replaced with a bevel surface which forms at least one combination surface similar to claim 9. Therefore the reasons that I gave for finding claim 9 novel, equally apply to claim 17. I therefore find that claim 17 and its dependent claims are also novel.
INVENTIVE STEP
Under section 7(2) of the Patents Act, an invention is taken to have an inventive step unless it would have been obvious to a person skilled in the art in light of the common general knowledge in the patent area before the priority date of the claims. Under sections 7(2) and 7(3) the common general knowledge may be considered either on its own, or together with prior art information which the skilled person could, before the priority date of the claim, be reasonably expected to have ascertained, understood and regarded as relevant.
The opponent alleged that claim 1 was merely an obvious combination of features of common general knowledge.

They submitted that Disklock Pro which is the applicant’s commercial product of their earlier lock is common general knowledge in the art and teaches a cylinder lock and key combination having a key in which two different combination values can be selected for the corresponding combination surface. The locking disc of the Disklock Pro however differs from the claimed invention in that it has only a single counter surface in the locking disc.
They further submitted that cylinder locks in which the locking disc has two or more counter surfaces is known from US 2217047 (exhibit MRW-9), US 3797290 (exhibit MRW-18) or FI 25618 (exhibit MRW-22) and that these documents were also common general knowledge in the art.
The opponent argued that it would have been obvious to a person skilled in the art to combine these two sources of common general knowledge, irrespective of whether Disklock Pro or FI 25618 was used as the starting point of the invention, and that such a combination produces no unexpected results.
At the hearing the applicant conceded that Disklock Pro was common general knowledge in the art.
They also conceded that patent specification FI 25618 was mentioned in the opposed application and was therefore common general knowledge in the art. However they submitted that US 2217047 and US 3797290 would not have been part of the common general knowledge in the art. They further argued that the pick up steps taught in these specifications are not the same as counter surfaces taught in the opposed application.
Although they conceded that Disklock Pro and FI 25618 were common general knowledge in the art, it was their contention that it would not have been obvious to a person skilled in the art to combine these two pieces of common general knowledge and thereby arrive at the claimed invention.
I need not decide whether US 2217047 and US 3797290 are common general knowledge in the art as the applicant has already conceded that FI 25618 is common general knowledge in the art. Both the US documents, apart from the fact that they are in English, appear to disclose no more than what is disclosed in the Finnish document in relation to having multiple pick up steps. There is a clear admission in page 2 of the opposed application that FI 25618 has counter surfaces. I can see no difference between the pick up steps taught in these three specifications and the counter surface taught in the opposed application except in the language used to define them. I think it is therefore fair to assume that locking discs with more than one counter surface were common general knowledge in the art at the priority date of the opposed application.

Finnish application FI 25618 which was first published in 1952 is in the Finnish language and the opponent has not filed any English translation of this document. However as mentioned earlier the specification of the opposed application clearly mentions FI 25618 as prior art which discloses locking discs with more than one counter surface (11-20). The key disclosed in this document appears to be a standard key with bits of differing heights (22-26) each of which is adapted to cooperate with one of the plurality of counter surfaces (11-20) in a corresponding locking disc depending on the height of the bit. Mr Gustafsson, the patent attorney for the applicant who drafted the specification of the opposed application, conceded that FI 25618 was the starting point of the present invention.
A stated object of the invention is to provide new key profiles which are operationally independent of prior known key profiles. This is achieved in the opposed application by providing for at least one of the multiple counter surfaces taught in the Finnish application, the possibility of at least two different combination values for the corresponding combination surface of the key and selecting one of these combination values at the time of cutting the combination surface on the key.
The applicant in 1985 invented the locking mechanism known commercially as the Disklock Pro. This lock is widely in use in Australia and its features and construction are acknowledged by the applicant to be common general knowledge in the art. The locking disc in this locking mechanism has only one counter surface for each turning direction of the key, and for this one counter surface it is possible to select, by the use of angular coding, at least two combination values for the corresponding combination surface which is to be cut on the key blank.
Clearly Disklock Pro teaches the same solution used in the claimed invention ie the ability to select for a counter surface at least two different combination values for the corresponding combination surface of the key. However to establish that the claimed invention lacks an inventive step, I need to be clearly satisfied that it would have been obvious to a person skilled in the art to have selected these two pieces of common general knowledge and then combined them to arrive at the claimed invention. In answering this question I am guided by what the court has said in Minnesota Mining & Manufacturing Co v Beiersdorf (Australia) Ltd (1979-80) 144 CLR 253.
“The proper question is not whether it would have been obvious to the hypothetical addressee who was presented with an ex post facto selection of prior specifications that elements from them could be combined to produce a new product or process. It is rather whether it would have been obvious to a non-inventive skilled worker in the field to select from a possibly very large range of publications the particular combination subsequently chosen by the opponent in the glare of hindsight and also whether it would have been obvious to that worker to select the particular combination of integers from those selected publications. In the case of a combination patent the invention will lie in the selection of integers, a process which will necessarily involve rejection of other possible integers. The prior existence of publications revealing those integers, as separate items, and other possible integers does not of itself make an alleged invention obvious. It is the selection of the integers out of, perhaps many possibilities, which must be shown to be obvious.” (at p293)
It is pointless to say, as some witnesses did in the present case that given the description in the claims in the patent they could with the aid of some prior specifications have produced the end product. This is an extreme example of the ex post facto dissection of an invention which has been vigorously criticized in many courts.” (at p294)
The applicant has already conceded that FI 25618 was the starting point of the invention. Although Disklock Pro is common general knowledge in the art, the opponent has not clearly established that a person skilled in the art faced with the problem of providing new key profiles, would look to Disklock Pro for the solution. Neither the opponent at the hearing or Mr Wilson, the opponent’s declarant, in his evidence has presented any convincing argument as to why a person skilled in the art would be motivated to combine these two pieces of common general knowledge. Such a motivation is also not apparent on reading each of these documents.

In the absence of such evidence or motivation I am not convinced that it would have been obvious to a person skilled in the art to have combined the teachings of Disklock Pro and FI 25618 to thereby produce the claimed invention. I therefore find claim 1 and its dependent claims do not lack an inventive step.
The opponent also submitted that claim 1 lacks an inventive step when the teachings of US 4351172 (MRW-2) or US 5490404 (MRW-3) is combined with the teachings of any one of US 2217047 (MRW-9) or US 3797290 (MRW-18) or FI 25618 (MRW-22). Both US 4351172 or US 5490404 teach the possibility of selecting for combination surface more than one combination value similar to Disklock Pro and therefore this line of argument adds nothing more to what I have already considered earlier in relation to the combination of Disklock Pro and FI 25618. This line of attack on claim 1 also therefore fails.
Claims 9-24: As discussed under novelty the Disklock Pro manual teaches a key blank in which the form of the shank in the cross-sectional plane is rectangular. This rectangular configuration is also taught by specifications US 5490405, GB 2266119 and the Abloy manual “6200 Abloy Disklock Key Cutting Machine”.
Independent claims 9 and 17 differ from these prior art documents in that at least one corner of the blank is replaced by a bevel surface which also forms a combination surface.
Although Mr Wilson for the opponent asserts in his evidence that the key blank of the Disklock Pro is supplied to locksmiths with at least one corner bevelled and this forms a combination surface, in my findings under novelty I found that this manual does not give any clear and unmistakeable support for this assertion. The opponent has not provided any further evidence to clearly establish that that it is well known to provide a bevelled corner in a key blank and which also provides a combination surface. I am therefore not satisfied, on the balance of probabilities, that the feature of at least one corner being replaced by a bevelled surface which is also a combination surface is disclosed by MRW-14 or that it is common general knowledge in the art. The opponent’s allegation that the invention defined in claims 9-24 is not inventive therefore fails.
MANNER OF MANUFACTURE
The applicant submitted that the invention define in claims 1-24 is not a manner of manufacture.

In relation to claim 1, the opponents argument relies on the submission that the features of the locking disc having at least two separate counter surfaces and that of at least two different combination values being selectable for the combination surface of the key are common general knowledge in the art and that claim 1 is therefore a mere collocation of known integers.
I have earlier found that claims 1-24 are novel and inventive. The opponent’s allegation that the claim is merely a collocation of features of common general knowledge must therefore fail.
The opponent further submitted that the invention defined in key claims 17-24 is generally inconvenient and hence not a manner of manufacture. It was their argument that cutting a spare or replacement key would infringe these claims and therefore an end user would be greatly inconvenienced.
The applicant on the other hand argued that the full bench of the Federal court in Bristol-Myers Squibb Co v F H Faulding & Co Ltd [2000] FCA 316 rejected the notion of “generally inconvenient”.
“17 It is perhaps tempting to posit a possible special area in which, for example, an entirely novel and simple procedure, capable of saving many lives by its application as first aid, might be denied patentability even though otherwise meeting the requirements for a valid patent. It may be that the "certain methods of treatment of the human body" to which passing reference is made in Ramset (at 190) would fall into this category. Even here, however, although at first sight it is easy to see how it could be argued that it was "generally inconvenient" for a simple, novel and dramatically life-saving method of treatment to be denied patentability on the footing that such a thing should be available universally and without restriction, the difficulty remains of drawing any logical distinction between a method of treatment and a patentable pharmaceutical product that produces the same beneficial results. More specifically, if (say) an antivenene for spider bite is patentable, on what ground can a new form of treatment for the same life-threatening bite be denied? The second consideration, referred to above, would also seem to remain as an obstacle.”
I agree. The opponent has not presented any convincing arguments why I should not rely on this decision. I see no reason for an applicant to be denied a patent for a key that otherwise meets the requirements for a valid patent just on the grounds that an end user cutting a spare key would infringe these claims. I therefore find that claims 17-24 are for a manner of manufacture.

CLARITY

Although no clarity issues against claim 1 were mentioned in the statement of grounds and particulars, at the hearing the opponent raised some objections to the clarity of claim 1. Under regulation 5.11 the Commissioner may consider new matter raised at a hearing provided the other party has had an opportunity to address the issues. The applicant commented that this objection did not appear in the statement of grounds and particulars, but however they did address this in their submissions at the hearing.
In the definition “for part of at least one of the counter surfaces (4al1, 4a12) at least two different combination values can be selected for the corresponding combination surface of the key (2)”, the opponent submitted that the phrase “can be selected” is ambiguous and raises a number of problematic interpretation issues.
Taking the Macquarie Dictionary definition of the word “select” as meaning “choose”, the phrase is taken to mean that a choice can be made between viable alternatives. In the context of the claim, this then raises questions such as who is making the selection?, when is the selection made? and what are the viable alternative choices from which the selection is made?
According to Mr Wilson, the opponent’s declarant, a key cannot have two different combination values at the same time. Once a key is cut it has only one combination value for each locking disc. There is no disclosure in the specification that the combination values on the key are alterable after the key is cut. Therefore the selection has to be made before or at the time of cutting the key.
However the applicant submitted that this definition in the claim is clear and that the selection between the different combination values defined in the claims refers to a selection that is made before or at the time of cutting the key. The evidence given by the applicant’s declarants also support the statement of Mr Wilson that once a key is cut it has only one combination value for each locking disc.
I agree that I had the same difficulties as the opponent when I first read the claim. However I am guided by the rules for construction.
It is one of the "rules of construction" for patent specifications that they must be construed in the light of the common general knowledge in the relevant art at the priority date of the application - see Welch Perrin v Worrel (1961-62) 106 CLR 588 at 610, Decor Corp v Dart Industries 13 IPR 385 and Melbourne v Terry Fluid Controls Pty Ltd (1994) AIPC 91-058. It is another rule of construction that where there is a choice between two meanings, one should, if possible reject the meaning that leads to an absurd result (Henriksen v Tallon Ltd [1965] RPC 434) and one should read the specification liberally and be "willing and wishing" to understand the specification (Philpot v Hanbury (1885) 2 RPC 33).
It is clear from the statements made by the expert witnesses for the applicant and the opponent that once a key is cut it has only one combination value for each locking disc. I think it is therefore fair to say that this is common general knowledge in the art. Therefore a person skilled in the art reading the specification applying the above rules of construction would reject the absurd interpretation that the key has more than one combination value for each counter surface after the key is cut. This then brings us to the logical conclusion that the selection or choice between two or more combination values for the corresponding combination surface of the key for the chosen locking disc is a selection that is available before or at the time of cutting of the key. I therefore see no ambiguity or lack of clarity in this definition in the claim.
In claim 2, the definition “of each code locking disc, which can be provided with different combination values” is alleged to be unclear because this appears to define that the combination values are on the locking disc, whereas according to claim 1 they are on the key.
I agree that on an initial reading there appears to be a clarity issue here, but when the claim is construed as a whole using the principles of construction, it is clear that the combination surfaces are provided on the key and not on the locking disc. The presence of the words “which can be provided with different combination values” does not give rise to any difficulty in arriving at the scope of the claim 2 which basically adds the limitation that each code locking disc has two said counter surfaces for each turning direction of the key.
Claim 9: Although the opponent did not submit that this claim lacked clarity, it was their view that the scope of this claim, because of the words “a key blank of a key for ….” is not limited to the features of the combination of claim 1. The key blank need only be suitable for the lock and key combination of claim 1, but may also be suitable for other lock and key combinations. The applicant on their part submitted that the claim imported all the limitations of claim 1.
Claim 9 basically defines that the shank of the blank has a basic form in the perpendicular cross sectional plane of the shank which is substantially rectangular with at least one corner replaced by a bevel surface but these features are in no way positively linked to features of the lock and key combination of claim 1. I therefore agree with the opponent that the scope of this claim does not include the limitations of claim 1. However this does not of itself lead to any adverse findings in respect of claim 1.
Claim 10: The opponent submitted that the definition “said bevel surface (2e1) includes two combination surfaces with different combination values” is unclear given that a combination surface can only have one combination value.
This claim is directed to a key blank before the key is cut. It is clear from the specification that the bevel surface can potentially have two combination surfaces with different combination values before being cut and this is for example illustrated in figure 11a. I can see no clarity problem with claim 10.
Claim 17: This claim is similar to claim 9 in that it defines a key for a lock and key combination of claim 1 or made from a blank defined in claim 7 and the opponent submitted that is not limited to the rest of the preamble. Although I agree with the opponent that claim 17 does not include the limitations of claim 1, the same is not true of its relationship with claim 9. Claim 17 clearly defines that one of the characterising features of this claim is the form of the shank of the key blank having a rectangular shape with at least one corner replaced by a bevel surface. These are all features defined in claim 9 and it is therefore clear that claim 17 includes all the limitations of claim 9.
Claim 18: This claim is similar to claim 10 and I find that it is clear for the same reasons as claim 10.
FAIR BASIS
In the statement of grounds and particulars, although the opponent raised the grounds of non-compliance with S40(3), the particulars did not include any particulars on fair basis.
At the hearing however, the opponent raised the issue of fair basis. They alleged that the applicant’s declarants, Mr Mahoney and Mr Gustafsson, have mentioned features like angular separation between counter surfaces, length cutting and combination values ending on different radii as being essential and distinguishing features. As these features are not present in all the independent claims, it was contended that these claims are not fairly based on the specification. Although the applicant commented that the particulars did not include any particulars on fair basis, they submitted that the claims were fairly based and did not seek any extra time to rebut the opponent’s submission.
In Lockwood (Lockwood Security Products Pty Ltd v Doric Products Pty Ltd [ 2004] HCA 58) the High Court stated that it is wrong to employ an over meticulous verbal analysis.

“It is wrong to employ "an over meticulous verbal analysis". It is wrong to seek to isolate in the body of the specification "essential integers" or "essential features" of an alleged invention and to ask whether they correspond with the essential integers of the claim in question."

The court also quoted with approval a passage taken from the judgment of Gummow J in Rehm Pty Ltd v Websters Security Systems (International) Pty Ltd (1988) 81 ALR 79 (at 95), where his Honour said, inter alia:
“... the question is whether there is a real and reasonably clear disclosure in the body of the specification of what is then claimed, so that the alleged invention as claimed is broadly, that is to say in a general sense, described in the body of the specification.”

The opponent did not put forth any arguments on lack of fair basis based on what is said about the invention in the specification itself. I think the body of the specification provides a real and reasonably clear disclosure of what is claimed in independent claims 1, 9 and 17. These claims are therefore fairly based.
CONCLUSION
The opposition fails on all the grounds which were relied on. I therefore dismiss the opposition.

Unless the Commissioner is served with a notice of appeal within 28 days of the date of this decision, I direct that the application proceed to sealing.
COSTS
In proceedings such as these it is usually the case that costs follow the event. I see no reason to vary that approach on this occasion. I therefore award costs against Australian Lock Company Pty Ltd.
R Subbarayan
Delegate of the Commissioner of Patents
Patent attorneys for the applicant : Callinan Lawrie, Kew
Patent attorneys for the opponent : Watermark, Melbourne