Aldeck Sales Pty Ltd v Gregory Stanley Oliver et al
[2015] APO 70
•28 October 2015
IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Aldeck Sales Pty Ltd v Gregory Stanley Oliver et al [2015] APO 70
Innovation Patent: 2012100178
Title:A Spacer
Patentees:Gregory Stanley Oliver, John Robert Roach and Mark Phillip
Speechley
Opponent: Aldeck Sales Pty Ltd
Delegate: O L Haggar
Decision Date: 28 October 2015
Hearing Date: 29 July 2015 in Canberra
Catchwords: PATENTS – section 101M – opposition to an innovation patent – entitlement to priority date claimed – operation of section 114 – whether the claims are fairly based – whether the claims are novel – reliance on common general knowledge to establish want of novelty – whether the claims involve an innovative step – opposition unsuccessful on all grounds – costs awarded against the opponent
Representation: Patent applicant: Adrian Crooks of Phillips Ormonde Fitzpatrick
Opponent:Think IP Strategy
IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Innovation Patent: 2012100178
Title:A Spacer
Patentees:Gregory Stanley Oliver, John Robert Roach and Mark Phillip
Speechley
Date of Decision: 28 October 2015
DECISION
I dismiss the opposition and award costs according to Schedule 8 of the Patent Regulations against Aldeck Sales Pty Ltd.
REASONS FOR DECISION
Background
Innovation patent 2012100178 in the names of Gregory Stanley Oliver, John Robert Roach and Mark Phillip Speechley (collectively, the patentee) was filed as a divisional application of standard patent application 2008241359 (the parent application) (now lapsed) which claims priority from provisional applications 2007902035, 2007904371 and 2007907086 filed respectively on 18 April, 14 August and 24 December 2007. The innovation patent was certified on 29 May 2012.
On 29 May 2014 the innovation patent was opposed by Aldeck Sales Pty Ltd (the opponent). The opposition was withdrawn in the face of an application by the patentee for its dismissal in part, and replaced on 20 August 2014 with a new notice of opposition and statement of grounds and particulars. The latter opposition is the subject of this decision.
Following completion of the normal evidentiary stages, the opposition was heard in Canberra on 29 July 2014. Adrian Crooks of Phillips Ormonde Fitzpatrick appeared by telephone on behalf of the patentee. The opponent was not represented at the hearing.
The innovation patent was examined on 5 April 2012. As a result, substantive amendments of the Patents Act brought about by the Intellectual Property Laws Amendment(Raising the Bar) Act 2012 do not apply. These include the amendment to subsection 101N(4) that allows the Commissioner to revoke an innovation patent if satisfied on the balance of probabilities that a ground of invalidity exits.
Consequently it appears that the former standard for opposition proceedings applies and thus the opponent must establish that it is clear or practically certain that the innovation patent is invalid (F Hoffman La RocheAG v New England Biolabs Inc [2000] FCA 283; 50 IPR 305 at 311, 319; Commissioner of Patents vSherman [2008] FCAFC 182 at [18], [22]; 79 IPR 46; Genetics Institute Inc v Kirin-Amgen Inc [1999] FCA 742; [1999] 92 FCR 106 at [17]).
Basis of opposition
The grounds of invalidity on which the opponent relies are identified by the statement of grounds and particulars as:
- the claimed invention is not novel;
- the claimed invention does not involve an innovative step; and
- the specification does not comply with subsection 40(3) for the reason that the claims are not fairly based.
The statement of grounds and particulars briefly refers to the topic of priority dates without further explanation. However, as emerges from its written submissions, the opponent disputes the entitlement of the innovation patent to the priority date claimed. For reasons which will become apparent, this is an important issue in these proceedings.
The evidence
Evidence in support consists of declarations by Leo Kuter dated 29 May 2014 (Kuter 1) with Exhibits LK-1 to LK-12, 29 May 2014 (Kuter 2) with Exhibits LK-13 to LK-15, and 18 August 2014 (Kuter 3). Evidence in answer consists of a declaration by Cameron Chick dated 22 November 2014 (Chick) with Exhibits CC-1 and CC-2. Evidence in reply consists of a declaration by Leo Kuter dated 15 January 2015 (Kuter 4) with Exhibits LK-16 to LK-19.
I will refer to the relevant parts of the evidence where appropriate.
The sibling application
It is convenient to mention here that on 27 February 2015 the patentee filed standard patent application 2015201025 (the sibling application) which also claims divisional status from the parent application. While the sibling application is not covered by this decision, it is conceivable in view of the overlap in subject matter that my findings may be relevant to examination of the sibling application which I note was requested on 4 May 2015.
The specification
The specification indicates that the invention is particularly related to a spacer for use in the roof of a building.
By way of background, the specification explains that insulation material such as fibreglass is often used in the roof of a building in order to help maintain a particular temperature within the building. The insulation is typically installed between the outer roof sheeting and the underlying roof purlin or rafters. However, the efficiency of the insulation is often compromised due to compression of the insulation material between the outer roof sheeting and the underlying roof structure.
The evidence establishes that a number of prior art approaches have been adopted in an attempt to address this reduction in insulation efficiency which is a problem well recognised in the commercial roofing industry. Kuter 1 at [8] refers to this as the “cold path” problem.
The specification ends with four claims which are in the following terms:
“1. A device adapted to space a roof sheet from an underlying roof purlin or rafter, the device comprising:
a roof support channel adapted to be fixed to the roof sheet,
a plurality of discrete spacers spaced longitudinally along and fixed to the roof support channel, each spacer including a supporting base and a pair of supporting legs extended from the supporting base,
a penetration in the channel to allow for a fixing element to fix one of the spacers to the roof purlin or rafter, wherein the penetration in the channel is aligned with the supporting base.
2. A device adapted to space a roof sheet from an underlying roof purlin or rafter, the device comprising:
a strip adapted to be fixed to a roof sheet,
a plurality of discrete spacers each spaced longitudinally along and fixed to the strip, each spacer including supporting base [sic] and a pair of supporting legs extended from the supporting base, a penetration in the strip to allow for a fixing element to fix one of the spacers to the roof purlin or rafter, wherein the penetration in the strip is aligned with the supporting base.
3. The device of claim 1 or claim 2, wherein the spacers include a crest extending between the supporting legs.
4. The device of any one of the preceding claims, wherein a roof clip support is fixed to the support channel or strip, the roof clip support including a roof clip for connecting with the roof sheet.”
As can be seen from the above, the device according to claim 2 is identical to that defined by claim 1 except that it includes a strip instead of an elongate channel adapted to be fixed to a roof sheet.
Priority date
The issues in dispute and relevant legal principles
As I have said, the opponent disputes the entitlement of the innovation patent to the priority date claimed. It contends that the priority date is 17 May 2012. In the alternative, the opponent contends that the priority date is 17 February 2012.
The priority date is important in this case because the opponent alleges that there are two documents which became part of the prior art base for the purposes of sections 7(1) and 7(5) after the priority date but well before February 2012. The documents in question have been exhibited as LK-13 and LK-14 which the opponent asserts deprive the claimed invention of novelty and innovativeness. This assertion will be dealt with later.
The opponent submits in the first instance that the innovation patent specification as filed did not disclose the claimed features of (a) discrete spacers and (b) a penetration in the channel (or strip) that is aligned with the supporting base. It consequently argues that the priority date should be deferred to the date on which it was proposed to introduce these features into the claims during examination of the innovation patent, namely, 17 May 2012. The opponent is here relying on section 114(1) and regulation 3.14 which together govern the assignment of priority dates where a complete specification has been amended. Specifically, regulation 3.14(b) provides that where a claim of a complete specification claims matter that was in substance disclosed as a result of an amendment, the priority date is the date of filing the statement of proposed amendments which resulted in the disclosure.
The language found in section 114(1) is relevantly identical to the language found in section 102(1). That is to say, both provisions are concerned with the question of whether matter is in substance disclosed (ICI Chemicals & Polymers Ltd v Lubrizol Corp [1999] FCA 1417 at [35]). It is well established that the question of what is in substance disclosed is virtually the same as that of fair basis, in that there must be a real and reasonably clear disclosure of an amended claim when compared against the original disclosure (ICI Chemicals &Polymers Ltd v Lubrizol Incorporation Inc [2000] FCA 1349 at [118]).
The test for fair basis is also determinative of entitlement to divisional status. As is evident from section 43(2)(b) and regulation 3.12(1)(c), to obtain the benefit of section 79B at least one claim of the innovation patent must be fairly based on matter disclosed in the specification of the parent application. The opponent has in the alternative submitted that the parent specification does not disclose the claimed feature of a penetration in the channel (or strip). It unexpectedly widened this argument in reply submissions filed on the day of the hearing to include the claimed feature of discrete spacers each having a supporting base and a pair of supporting legs extended from the supporting base. The opponent contends on this basis that the only priority date that can be properly accorded to the innovation patent is that which derives from section 43(2)(a), namely, its filing date of 17 February 2012.
Thus, in addressing the two lines of attack pressed by the opponent, the principal issue which arises for determination is whether there was a real and reasonably clear disclosure of the innovation patent claims as they presently stand in both the innovation patent specification as originally filed and the parent specification.
Consideration of the issues in dispute
Before considering these issues in detail, I note the opponent has submitted that the words “discrete”, “align” and “penetration” or derivations of them do not appear in either specification. This submission is suggestive of “an over meticulous verbal analysis” which was criticised by the High Court in Lockwood Security Products Pty Ltd v Doric Products Pty Ltd [2004] HCA 58; 217 CLR 274 at [68]. The High Court confirmed that it is sufficient to establish fair basing if the claimed invention “is broadly, that is to say in a general sense, described in the body of the specification”, citing Gummow J’s words in Rehm Pty Ltd v Websters Security Systems (International) Pty Ltd [1988] FCA 162; 11 IPR 289 at [54]. I would add here that a drawing without more can provide fair basis for a claim (CCOM Pty Ltd v Jiejing Pty Ltd [1994] FCA 1168; 28 IPR 481 at [69]).
Claim 1
Neither of independent claims 1 or 2 of the innovation patent claims a monopoly in any feature by itself. Both claims are directed to a combination of features. In the case of claim 1, the combination not only comprises the features complained of by the opponent, but also includes a roof support channel adapted to be fixed to a roof sheet with which the claimed device is in use employed. In general terms, the channel is said by claim 1 to provide a fixing point for the plurality of discrete spacers while enabling them to be fixed to the roof purlin or rafter.
The High Court in Lockwood (at [78]) indicated that it is the totality of features in any given claim that must be fairly based. In my opinion this does not mean that the fair basis of a combination claim can be legitimately assessed by comparing it against what is effectively a mosaic of fundamentally distinct embodiments of the invention with reference to which the constituent features of the combination have been individually described. The opponent submits that this is what the patentee has impermissibly sought to do in the present case:
“[The patentee] cannot now attempt to cherry pick features from one disclosed device and add them to another in an effort to support fair basis. The mere fact that a diagram of a device which is entirely different to that which is claimed is not enough to provide real and reasonably clear disclosure of the claim in its entirety.”
I am not convinced by this submission. The combination of features set forth in claim 1 is exemplified by the parent specification with reference to Figures 14A to 15B. The former figure is the most informative and is reproduced below.
Beginning at page 17 the parent specification states that as shown in Figure 14A (the emphasis is mine):
“… the spacer 600 sits between a first roof member 610, and a second roof member 620. In this particular example, the first roof member 610 is a roof sheet support channel which can in turn support either a roof clip 615 or roof sheet, and the second roof support member 620 is a roof support member, such as a roof purlin.”
The parent specification further states (again with added emphasis):
“Figures 14A to 15B also show that the first roof member 610 can be attached to the spacer 600 via Tek screws 619 (or any other similar fixing elements …). Similarly, the spacer can be fixed to the roof purlin 620 via a standard 10/16 Tek screw fixing, or the like, at 617, and the first roof member 610 can be fixed to the roof clip 615 via a similar arrangement at 606. Accordingly, the first roof member can include fixing objects such as a penetration at 618 to allow for the fixing of Tek screws … It will also be appreciated that the spacer can be produced with the support legs made separately and then fixably attached to a support channel.”
Only one spacer is depicted in Figures 14A to 15B. However, a specification is to be construed “with a generous measure of common sense” (Eli Lilly and Company Limited v Apotex PtyLtd [2013] FCA 214; 100 IPR 451 at [139]). In the context of the parent specification it would be incongruous to suggest that the invention in any guise contemplated the use of a single spacer alone to fulfil its intended purpose. Most notably for present purposes, the first roof member (roof support channel) 610 shown in Figure 14A includes multiple pairs of Tek screws 619. Logically, this disclosure when read in conjunction with the passage above can only mean that the first roof member is in practice attached to a corresponding number of discrete spacers 600. Put another way, it is evident that when viewed sensibly the spacer illustrated in Figures 14A to 15B is merely representative of one of a plurality of like spacers utilised in this embodiment of the invention. The passage above additionally confirms that regardless of their shape (cf. page 10 at lines 8-12), the spacers are provided with supporting legs which by definition must extend from a supporting body.
The opponent’s final contention with regard to claim 1 is that the parent specification does not disclose the claimed feature of a penetration in the roof support channel that is aligned with the supporting base of the spacer. However, I agree with the patentee (at [23]) that as can be inferred from Figure 14A:
“… when first roof member 610 is attached to spacers 600, penetration 618 aligns with the supporting base of spacer 600 to allow for a screw driver of the like [sic] to pass through penetration 618 and fix spacer to purlin 620 at 617.”
The disclosure of the parent specification regarding Figures 14A to 15B was in all material respects repeated in the original innovation patent specification in connection with Figures 9A to 10B. This in fact continues to be the case.
I am therefore of the opinion that there was a real and reasonably clear disclosure of the subject matter of claim 1 in both the innovation patent specification as originally filed and the parent specification. Accordingly, there is no basis for finding that claim 1 should take as its priority date either 17 May 2012 or 17 February 2012 as submitted by the opponent.
Claim 2
On my reading of the parent specification, the closest it comes to exemplifying the combination of claim 2 is with reference to Figures 12A to 12D which show a crenellated insulation support bracket produced by forming a galvanised flat strap into a series of interconnected spacers each having a pair of support legs 513 extending from a supporting body or crest 514. For ease of reference Figure 12 B is reproduced below.
The parent specification explains between pages 10 and 11 (with added emphasis) that:
“… Figure 12A shows a crenellated support bracket 501, having pre-punched holes 502 for attachment screws 509 to secure the bracket 501 to roof support member 508 (where a screw driver can be used to reach the bracket). Figure 12B shows a flat strip 503 fixed over the bracket 501 to allow for screw fixed roof sheeting, where attachment approved fixing screws, rivets or the like 504, fix the flat strip 503 or roof clip 506 to the crenellated insulation support bracket … Figure 12D also shows a roof support member 508, which can usually be a C or Z shaped roof purlin.”
Although not expressly described, I am persuaded by the patentee’s submission that as becomes apparent from Figure 12B:
“… the strip 503 which is fixed over the bracket and allows attachment of roof sheeting includes a series of openings or penetrations 505 which allow a screw driver or the like to reach bracket 501 to attach it to the underlying roof support member. As is clear from Figure 12B, openings or penetrations 505 are aligned with the supporting base of bracket 501.”
The opponent has placed a good deal of reliance on the fact that the series of spacers comprising the support bracket 501 are not discrete. This is certainly true of the form of the support bracket portrayed in Figures 12A to 12D, which as stated at page 11 lines 16-19 “has three or more [pairs of] legs 513 and two or more crests 514”. However, the specification also makes the point here that the bracket 501 can be a single piece. This clearly implies that the specification envisages other forms of support bracket, and this much is confirmed at page 12 lines 25-26 where it is said that the support bracket 501 can be produced in two or more pieces if desirable. It would not in my opinion be sensible to interpret this statement as signifying anything other than that when produced in a number of pieces, each piece of the bracket would be formed such as to of itself constitute a discrete spacer.
The disclosure of the parent specification with respect to Figures 12A to 12D was in all material respects repeated in the innovation patent specification as originally filed in connection with Figures 8A to 8D. Thus, for precisely the same reasons discussed in relation to claim 1, the opponent has failed to justify that claim 2 should take as its priority date either 17 May 2012 or 17 February 2012.
Fair basis
The only submission advanced by the opponent under this ground is that claims 1 and 2 lack fair basis in their respective references to a roof support channel or strip “adapted to be fixed to the roof sheet”. As argued at [25] of its submissions in chief:
“… at best, the specification describes a single method by which a roof support channel or strip may be adapted – with the addition of a roof clip. There is no discussion in relation to any other adaptations to the roof channel or strip and nor is there any discussion as to the types of adaptations which are suitable or how to make such adaptations. See Kuter 3, paragraphs 4 and 5.”
I note with interest from Kuter 1 at [21b] that Mr Kuter has not expressed any difficulty in understanding that the term “adapted” simply indicates that the roof support channel or strip is capable of being fixed to the roof sheet. There is nothing in the specification to indicate that the invention it discloses as a whole is dependent on any particular means of achieving this result. Although predominantly showing the use of a roof clip, it is clear enough from the specification that the drawings are merely illustrative of how the invention might be put into effect, not exhaustive. As stated in Lockwood (at [69] and [77]), the words “a real and reasonably clear disclosure”, when used in connection with section 40(3), do not limit disclosures to preferred embodiments.
This ground of invalidity therefore does not succeed.
Novelty
A claimed invention is deprived of novelty if it has been given to the public before the priority date, either by prior use of a product or process, or by publication of information that equates to the claimed invention (Danisco A/S v Novozymes A/S (No 2) [2011] FCA 282; 91 IPR 209 at [248]). It is well established that the general test for anticipation or want of novelty is the reverse infringement test (Meyers Taylor Pty Ltd v Vicarr Industries Ltd ([1977 HCA 19; 137 CLR 228 at [19]), and this test is satisfied if the alleged anticipation discloses all of the essential features of the invention as claimed (Nicaro Holdings Pty Ltd v Martin Engineering Co ([1990 FCA 40; 16 IPR 545 at [19]).
To meet this requirement, the prior art must contain “clear and unmistakable directions” to produce the invention as claimed (Pfizer Overseas Pharmaceuticals v Eli Lilley and Company [2005] FCAFC 224; 68 IPR 1 at [314]). However, if the prior publication contains a direction which is capable of being carried out in a manner which would infringe the claimed invention, but would at least as likely be carried out in such a way that would not do so, the invention as claimed will not be anticipated (General Tire & Rubber Co v Firestone Tyre & Rubber Co Ltd [1972] RPC 457 at 485-486; 1A IPR 121 at 138, Novozymes A/S v Danisco A/S [2013] FCAFC 6; 99 IPR 417 at [177]).
The same level of disclosure is required of an alleged prior use of the invention as claimed (Old Digger Pty Ltd v Azuko Pty Ltd [2000] FCA 676; 51 IPR 43 at [152].
The statement of grounds and particulars lists a range of documents under this ground, including those it has denoted as (a) the Fletcher Insulation launch announcement of 28 October 2008 (Exhibit LK-13) and (b) the Technical Data Sheet in relation to the Fletcher Insulation product from April 2009 (Exhibit LK-14).
Mr Crooks openly acknowledged at the hearing that both documents relate to a commercial embodiment of the subject matter of the innovation patent. These are in fact the documents on which the opponent sought to rely in the event I accepted its submission that the priority date is either 17 February or 17 May 2012. However, as I have rejected the opponent’s submission as to the deferment of priority dates, it follows that the question of whether either document deprives the claimed invention of novelty (or an innovative step) is a moot point.
The opponent has nevertheless further asserted that the claimed invention lacks novelty in the light of:
- the common general knowledge taken alone;
- the common general knowledge taken together with the disclosure of WO 03/078753; or
- the common general knowledge taken together with an alleged prior use.
This assertion is misguided in law. First, it impermissibly treats information within common general knowledge as part of the prior art base for novelty. Second, common general knowledge can be legitimately used to gain an understanding of prior art information through the eyes of the skilled addressee, but not to supply a feature missing from it. As stated in AstraZeneca AB v Apotex PtyLtd [2014] FCAFC 99 at [352]:
“Although the common general knowledge can be used in a limited way to construe a prior art document, s 7(1) does not permit the common general knowledge to be used as a resource that can be deployed complementarily to arrive at a disclosure which the document alone, properly construed, does not make.”
The opponent’s case on novelty is not assisted even if WO 03/078753 is construed in the light of common general knowledge in this “limited way”. A copy of WO 03/078753 is exhibited as LK-3. It discloses a roofing system in which roof sheets are retained to roof support purlins by a plurality of clips mounted to an upper surface of a strap. The roofing system also comprises spacer members in the form of high density polystyrene blocks mounted to a lower surface of the strap. The spacer members are said to provide support for the roof sheets and space them above a layer of insulation material disposed between the strap and the roof support purlins to thereby increase the thermal efficiency of the roofing system.
The strap may at best be likened to the strip or claim 2, but not the roof support channel of claim 1. Either way it is self-evident that WO 03/078753 does not disclose each of the combination of features defined by either of claims 1 or 2. The polystyrene blocks (spacer members) are not spaced longitudinally along and fixed to a roof support channel or strip having a penetration in accordance with the claimed invention, and nor are they comprised of a supporting base and a pair of supporting legs extended from the supporting base. Kuter 1 at [10] states that by 2007 it was “common general knowledge in the Australian roofing industry that one could reduce the effect of the cold path problem by inserting a spacer between the purlin and the roofing sheet, so as to hold them apart and create an insulating air space and/or reduce or potentially remove compression of the insulation material”. He refers to a number of exhibits to support this contention. Only one of these (LK-1) discloses a spacer having the structural features of the claimed invention which cannot possibly be said to be evidence of common general knowledge. Even if I were to assume that when viewed in the light of common general knowledge WO 03/078753 would direct the skilled addressee to substitute the polystyrene blocks with a spacer of this kind (noting that the opponent has not adduced any evidence whatsoever on this point), its disclosure would still fail to anticipate the balance of the claimed invention as I have discussed above.
The allegation of anticipatory use is also significantly flawed. The opponent’s evidence does not establish with any precision the features said to have been disclosed by the alleged prior use, but it seems from Kuter 1 at [18] that it relies solely on the use of the “Styrofoam” product developed by the Dow Chemical Company as described in Exhibit LK-7. Taken at its highest, this exhibit is even less relevant than WO 03/078753. Suffice to say that it is directed to a thermal insulation material and not a roofing system incorporating a spacer, let alone a spacer per se.
Based on the foregoing I find that the opponent has not established that the claimed invention lacks novelty by reason of anticipatory publication or use. This ground of invalidity consequently does not succeed.
Innovative step
The claims of an innovation patent must involve aninnovative step. Section 7(4) provides that:
“An invention is to be taken to involve an innovative step when compared with the prior art base unless the invention would, to a person skilled in the relevant art, in the light of the common general knowledge as it existed in the patent area before the priority date of the relevant claim, only vary from the kinds of information set out in subsection (5) in ways that make no substantial contribution to the working of the invention.”
The decision of the Full Court in Dura-Post (Aust) Pty Ltd v Delnorth Pty Ltd [2009] FCAFC 81 confirmed the approach of Gyles J in Delnorth Pty Ltd v Dura-Post (Aust) Pty Ltd [2008] FCA 1225 at [52]-[53] who at first instance made a clear distinction between an innovative stepand an inventive step:
“There is no need to search for some particular advantage in the art to be described as an innovative stepwhich governs consideration of each claim. The first step is to compare the invention as claimed in each claim with the prior art base and determine the difference or differences. The next step is to look at those differences through the eyes of a person skilled in the relevant art in the light of common general knowledge as it existed in Australia before the priority date and ask whether the invention as claimed varies from the kinds of information set out in s 7(5) in ways that make no substantial contribution to the working of the invention ...
The phrase ‘no substantial contribution to the working of the invention’ involves quite a different kind of judgement from that involved in determining whether there is an inventive step. Obviousness does not come into the issue ... Indeed the proper consideration of s 7(4) is liable to be impeded by traditional thinking about obviousness.”Gyles J at [61] also provided an indication as to what is encompassed by the requirement of a “substantial” contribution:
“In my view the provenance of the phrase ‘make no substantial contribution to the working of the invention’ indicates that ‘substantial’ in this context means ‘real’ or ‘of substance’ as contrasted with distinctions without real difference”.
The opponent has relied on the same contentions that were pursued under the ground of novelty where I found that irrespective of the construction placed on it, WO 03/078753 does not disclose all features of the claimed invention. In these circumstances the claimed invention cannot possibly be said to differ from this document in ways that make no substantial contribution to the working of the invention. This is also the case with the Styrofoam product. It bears comment here that in Kuter 1 at [36] and Kuter 4 at [18] Mr Kuter takes issue with the lack of any contribution made by the defined shape of the spacers. However, I am persuaded by Chick at [45] that the shape of the spacers would at least affect their structural performance. Whatever the case may be, it is again a striking feature of Mr Kuter’s evidence that it fails to take account of the entire combination of features claimed.
This ground of invalidity does not succeed.
Conclusion
I have found that the opposition does not succeed on any of the grounds relied on. The opposition is accordingly dismissed.
Costs
The opponent has not been successful and I can see no reason why costs should not follow the event. I therefore award costs against the opponent.
O L Haggar
Delegate of the Commissioner of Patents
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