Airsense Technology Ltd v Vision Systems Ltd - [1999] APO 61

OFFICIAL NOTICE

DECISION OF A DELEGATE OF THE COMMISSIONER OF PATENTS

Application : Nos. 689484 in the name of AIRSENSE TECHNOLOGY LTD

Title: SMOKE DETECTION SYSTEM

Action: APPLICATION FOR AN EXTENSION OF TIME TO SERVE EVIDENCE AND OPPOSITION THERE TO BY VISION SYSTEMS LTD

Decision: Issued .
Abstract

Application for an extension of time under regulation 5.10(2) granted.

The applicant applied for a second extension of time in which to serve the evidence in answer arguing that the staff of its company and its legal team had not previously been able to find sufficient time to assess the opponent's case and prepare evidence to rebut it. Difficulties were also cited in obtaining evidence from a person skilled in the art in Australia. Although not a great deal of detail was given it was decided that a proper case had been made out for an extension of time. Also in view of the fact that the evidence served since requesting the second extension constituted the sole evidence served since the period of evidence in answer commenced it was considered in the interest of the public (as well as the applicants) to grant the extension.

Application for a direction under regulation 5.10(1) to defer evidence in answer refused.

The applicant filed amendments that it argued would simplify and expedite the opposition.
The applicant conceded that evidence in answer could be completed without waiting for the amendments to be finally dealt with. The benefit obtained for all parties in waiting for the amendments to be allowed was found to be outweighed by the detriment to the opponent caused by the delay and to the Patent Office in preventing expeditious disposal of the opposition.

PATENTS ACT 1990

DECISION OF A DELEGATE OF THE COMMISSIONER OF PATENTS

Re:Patent Application No.689484 by AIRSENSE TECHNOLOGY LTD, application for an extension of time under regulation 5.10(2), application for a direction to defer evidence in answer under regulation 5.10(1), and objection thereto by VISION SYSTEMS LTD.

BACKGROUND

Application 72694/94 in the name of Airsense Technology Ltd (herein after referred to as Airsense) was advertised as accepted on 2 April 1998. Vision Systems Ltd (herein after referred to as Vision Systems) served a notice of opposition on 1 July 1998.

Vision Systems served a statement of grounds and particulars on 1 October 1998. Evidence in support was completed on 29 December 1998. Vision Systems served an amended statement of grounds and particulars on 18 January 1999 and the amended statement was allowed without opposition on 12 February 1999. Evidence in answer was due to be completed on 29 June 1999 after one unopposed extension of time was granted to Airsense. On 29 June 1999 Airsense requested an extension of time up to 29 September 1999 within which to serve evidence in answer. This application for an extension was opposed by Vision Systems.

A hearing was held in Canberra on 4 August 1999. Airsense was represented by Ms Doreen Perrin of Collison & Co. Vision Systems was represented…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1999] APO 61
Decision Date: 28 September 1999

CaseChat Overview and Summary

Airsense Technology Ltd applied for an extension of time to serve its evidence in answer in opposition to Vision Systems Ltd's opposition to Airsense's patent application for a smoke detection system. Airsense cited difficulties in obtaining evidence from a person skilled in the art in Australia and balancing its employees' and legal counsel's time commitments as reasons for the delay. Vision Systems opposed the application, arguing that the extension would unduly delay the opposition process and cause it commercial harm. The court had to decide whether Airsense had provided sufficient justification for the extension and whether it was in the public interest to grant it.

The court found that although Airsense had not provided much detail about its efforts to complete the evidence in answer, it had demonstrated that it had encountered significant difficulties in obtaining evidence from a person skilled in the art in Australia. The court also noted that Airsense had served some evidence in answer since requesting the extension. The court considered the interests of both parties and the public interest in resolving the opposition expeditiously while allowing Airsense the opportunity to defend its patent application on its merits. The court concluded that the public interest and Airsense's interest in presenting its evidence outweighed Vision Systems' interest in resolving the opposition quickly. Therefore, the court granted Airsense's application for an extension of time to serve its evidence in answer.

The court also had to decide whether to issue a direction under regulation 5.10(1) to defer evidence in answer until Airsense's proposed amendments had been finally dealt with. The court found that Airsense had not made out a proper case for such a direction as the amendments did not seem to significantly simplify the substantive opposition or overcome the grounds of opposition. The court also found that deferring evidence in answer would cause greater detriment to Vision Systems and the public interest than the potential benefits of greater certainty on the form of the claims during and following the stage of evidence in answer. Therefore, the court refused to issue a direction under regulation 5.10(1) to defer evidence in answer.

Orders