Allen Telecom Group, Inc v Vicom Australia Pty Ltd

[1994] APO 72

official notice

decision of a delegate of the commissioner of patents

Application        :   No. 577539 in the name of ALLEN TELECOM GROUP,INC

Title:   Cellular Mobile Communications Antenna

Action: Opposition under section 59 (Patents Act 1952) by VICOM AUSTRALIA PTY LTD; hearing.

Decision:   Issued            .

Abstract:   Novelty, obviousness, and section 40 considered. Section 40 only successful. Opportunity to amend.

patents act 1990

decision of a delegate of the commissioner of patents

Re:Patent Application No. 577539 by ALLEN TELECOM GROUP,INC and opposition thereto under section 59 of the Patents Act 1952 by VICOM AUSTRALIA PTY LTD.

background

Patent application 577539 (the application) was filed as 31924/84 on 15 August 1984 by ORION INDUSTRIES,INC, claiming a Convention priority of 23 September 1983.  Acceptance was advertised on 29 September 1988.  In consequence of a merger, it was directed in October 1983 that the application proceed in the name of ALLEN TELECOM GROUP,INC (the applicant).

A total of five notices of opposition were lodged by various parties on various dates, four of which were subsequently withdrawn.  The one remaining, and the one the subject of this decision, was lodged on the 29 December 1988 by VICOM AUSTRALIA PTY LTD (the opponent).  Following a number of extensions, service of the evidence-in-support was completed on 29 May 1991.  Also after some extensions, service of the evidence-in-answer was completed on 16 March 1992, and of the evidence-in-reply within the time allowed.  By an oversight, the evidence-in-reply was not lodged until the day of the hearing.

On 18 November 1992 section 104 amendments to the application were proposed, and leave to amend was advertised on 11 March 1993.  A notice of opposition to these amendments was lodged by the opponent on 11 June 1993, and withdrawn on 13 September 1994.  The amendments were allowed on 21 September 1994, and it is the specification as amended under consideration in these proceedings.

A hearing was set down for Canberra on 22 September 1994.  The applicant was represented at the hearing by Mr J Hinde and     Mr R Miller, patent attorneys of Spruson & Ferguson, and the opponent by Mr T Beadle, patent attorney, of Carter Smith & Beadle.  Mr R Kelly from the opponent was also present as an observer.

As acceptance of the application was advertised before commencement of the Patents Act 1990, the provisions of section 234(3) and regulation 23.3 of this Act apply.

The grounds of opposition are stated to be those specified in paragraphs (d) through (i) of section 59 of the Patents Act 1952, though the only grounds argued were those of novelty, obviousness, and section 40.

THE SPECIFICATION

The invention is an antenna for a cellular mobile phone, for use in a vehicle.  These antennas consist of a single radiating element, sometimes called a monopole, and as is well known, require a ground plane as a return path to the transmitter for effective operation.  As the specification notes, this can be achieved by mounting the antenna on the roof, or less preferably, on the rear boot lid or metallic bumper.

Where a monopole is remote from a ground plane, atop a mast for example, an artificial ground plane can be created by means of a "counterpoise".  A counterpoise is usually an array of wires extending more or less horizontally from the base region of the antenna, coupled to the outer conductor of the coaxial feed cable, and which functions to provide a low impedance path to ground.

The International Dictionary of Physics & Electronics, Michels (ed), about 1970, defines an antenna counterpoise at page 91 as follows:

"One or more wires stretched beneath an antenna, but elevated above and insulated from, the earth. The antenna circuit is completed through the capacitance of the counterpoise to ground. This system has application where a satisfactory connection to ground is not possible or practical. In high-frequency systems, the antenna plus counterpoise is sometimes called the ground-plane antenna."

It is defined in the IEEE Standard Dictionary of Electrical and Electronic Terms, fourth edition, page 214, as follows:

"A system of conductors, elevated above and insulated from the ground, forming a lower system of conductors for an antenna. Note: The purpose of a counterpoise is to provide a relatively high capacitance and thus a relatively low impedance path to earth. The counterpoise is sometimes used in medium and low-frequency applications where it would be more difficult to provide an effective ground connection."

The invention can be understood from the following extracts taken from the specification.

"Field of the Invention

The present invention relates to communications antennas and more particularly to mobile communications antennas for frequencies in the area of the 800 MHz frequency band of the type adapted to be mounted on a non-conductive surface such as a vehicle windshield.

Background of the Invention

The recent introduction of cellular telephone service which utilise frequencies in the 800MHz frequency band and above, has increased interest in the efficient mobile antenna systems for those frequencies.  Such services typically utilise a fairly wide bandwidth.  For example, existing and/or proposed systems operate over frequency bands of about 800-870 MHz, 820-900 MHz and 860-840 (sic?) MHz.  As can be seen by the above figures, the bandwidth of such operating systems ranges from between about 60 to about 80 MHz.  Thus, any antenna designed for use with such systems should provide efficient radiation characteristics and low VSWR over these bandwidths. 

In addition, mobile antennas for such communications systems are designed to be mounted on vehicles.  Some type of permanent installation is often necessary.  For preferred locations, those which provide the most uniform radiation patterns, such as roof tops, this requires mounting to the vehicle such as automobiles by cutting holes into the body and permanently mounting the antennas in place.  This is not always a satisfactory arrangement for vehicle owners.

Alternate mounting locations, such as fenders or trunk lids, which may allow for different mounting techniques, result in deterioration in the desired uniformity in the radiation pattern.  It would be desirable, therefore to have an antenna which could operate at these UHF frequencies which at the same time could provide the desired operating characteristics without requiring the mounting arrangements that
permanently mar a vehicle and require body repair when the antenna system is removed from the vehicle.

The mounting of a communications antenna on insulated surfaces such as the windshield is known for much lower frequencies.  One such an antenna system is disclosed in commonly assigned U.S. Patent No. 4,238,799 which issued on December 9, 1980, incorporated herein by reference.

The antenna system specifically disclosed is particularly adapted for operation at frequencies well below the frequencies used for cellular phone communication systems.  Thus, the antenna there disclosed was designed for operation in the CB and related bands of about 28-29 MHz."

......

"Summary of the Invention

In accordance with the present invention, there is provided a communications antenna adapted to operate at and above the 800 MHz frequency band which is designed for mounting on an insulated surface such as a windshield of an automotive vehicle and which provides excellent efficiency and gain as well as the desirable bandwidth to allow for efficient use at the cellular communications frequencies under consideration.

In accordance with the present invention, a vehicle window, eg, the windshield is utilised to efficiently couple RF energy to a two-element collinear radiator mounted on the external surface of the windshield.  In order to couple the RF energy between the antenna and a transceiver, a specially designed coupler configuration is mounted on the inner surface of the window in proximity to the antenna mount.  The coupler reactively couples the radiator element to a transmission line while providing the desired 50 ohm input impedance.

The coupler in accordance with the present invention together with the radiator designed for use therewith provides desired VSWR characteristics over the operating band ranges of 60 to 80 MHz such as contemplated for use in cellular telephone systems.

The window mounted antenna incorporating the present invention is capable of providing radiation characteristics comparable to antennas mounted on the roof tops of vehicles, provides desired omni-directional coverage and satisfactory gain without the distortion which may arise from mounting antennas on trunk lids and other less satisfactory locations on a vehicle."

......

"At the frequencies at which the assembly incorporating the present invention is used, however, one problem that may arise is that the transmission line connecting the antenna assembly to the transceiver becomes "hot".  In order to eliminate this problem, according to one embodiment of the invention the coupling or feed assembly is incorporated in a conductive housing which acts as the counterpoise.  Disposed within the conductive housing are the components defining a coupling capacitor plate, and the tuned circuit utilised to tune the antenna and couple the radiator mounted on the external surface of the glass to the transmission line."

The specification concludes with eleven claims, the first four of which are as follows.

"1. A mobile antenna communications antenna system usable to radiate radio frequency energy generated by a transceiver located in a vehicle at operational frequencies in excess of 800 MHz and attachable to a non-conductive dielectric member of a vehicle such as a window, said antenna system comprising:
an elongated radiating member attached at one end to a conductive base member, said base member being attachable to a first surface of the dielectric member of the vehicle; coaxial connector means couplable to the transceiver and having first and second conductors; and
a coupling system separate from the vehicle but affixable to a second surface of the dielectric member, juxtaposed with said base member, said coupling system including,
a conductive member defining a counterpoise for said antenna system at the said operational frequencies effective to ensure that the coaxial connector means remains substantially 'cold', and
a plate member electrically insulated from said conductive member juxtaposed with said base member to define therewith a coupling capacitor for coupling radio frequency energy at said operational frequencies to said radiating member,
said coaxial connector means being affixed to said coupling system with said first conductor coupled to said conductive member, and said second conductor connected to said plate member;
whereby said antenna system is operable with an electrical connection only between said coupling system and the transceiver.

2. An antenna system in accordance with claim 1, wherein said coaxial connector means is coupled to said conductive member only by said second conductor to a selected conductor in the transceiver.

3. An antenna system in accordance with claim 1 or 2, wherein said plate member is insulated from said conductive member by a non-conductive printed foil circuit and is juxtaposed to said second surface of said dielectric member when said coupling system is affixed to the dielectric member.

4. An antenna system in accordance with any one of the preceding claims, wherein said conductive member is a shaped metal housing at least part of which is positionable against said second surface of the dielectric member."

Claims 5-8 are appended to claim 4, claims 9-10 are appended to any one of the preceding claims, and claim 11 is an omnibus claim.

EVIDENCE

The evidence-in-support consists of the following statutory declarations:

1. A declaration by Russell J Kelly, a Director of the opponent company, which goes to the opponent's locus.

2. A first declaration by Noel A McDonald, electrical engineer and presently Head of Communication Engineering at RMIT.  Previously McDonald was employed as Chief Engineer of an antenna engineering company.  The declaration refers to the admitted prior art antenna disclosed in US 4238799 (the Parfitt antenna or Parfitt), and also another prior antenna, the Avanti Model AP450 (the Avanti antenna or Avanti).  These are both glass mounted antennas, operating at about 27 and 450 MHz respectively.  Annexure 1 to this declaration provides the specifications for the Avanti antenna.

3. A second declaration by McDonald with annexures being material from some antenna texts.

4. A declaration by Graham V Comber, who has been engaged in the communications industry for over 25 years.  Comber relates some experiences he had with the Avanti antenna as an authorised agent in Australia, and annexures include relevant correspondence with the manufacturer, the Avanti handbook, a photo of the internals of the antenna's coupling means, and some extracts from texts.

5. A declaration by Ben Czernowicz, Communications Engineer, primarily discussing the Avanti antenna.

6. A first declaration by Trevor N Beadle, Patent Attorney.

7. A declaration by Susan J Moore, Librarian at RMIT, regarding the publication dates of some texts.

The evidence-in-answer consists of the following statutory declarations:

8. A declaration by James Hadzoglou, Senior Antenna Design Engineer in the employ of the original applicant (ORION), and the inventor of the present invention.  Included with the declaration are some work notes made by him during the course of development of the invention.

9. A declaration by Joanne Ellen Jaques, Company Secretary of RF Industries, which company distributed the Avanti antenna in Australia, and exhibits JEJ-1 to JEJ-5.  The exhibits relate to the marketing in Australia of glass mounted antennas.

10. A declaration by Graeme L James, a Scientist at the CSIRO, which discusses the opponent's evidence and compares the Avanti and the present antennas.

11. A declaration by The Bao Vu, presently Head of the Department of Communications in the School of Electrical Engineering at UNSW, which primarily considers the problems of the Avanti antenna.

12. A first declaration by John Gordon Hinde, Patent Attorney, with exhibit JGH-1, relating to proceedings in the United States against the US equivalent of the present application.

13. A second declaration by Hinde, with exhibits JGH-2 to JGH-4. The former is a copy of the equivalent US patent mentioned above, JGH-3 is some correspondence between the attorneys for the parties in the present case, and JGH-4 is a question from a Patent Attorneys' Practice examination paper.  The question appears to be loosely based on the facts of the present case, and it is stated that the primary examiner involved was the opponent's patent attorney, Mr Beadle!  This is entertaining, but hardly very relevant.

14. A declaration by Mary Roesch, a Market Research Analyst employed by the original applicant, going to the commercial success of the present invention.

The evidence-in-reply consists of the following statutory declarations:

15. A third declaration by McDonald, commenting on the declarations by James and Vu.

16. A second declaration by Comber, expanding on his first.

17. A second declaration by Czernowicz, correcting an error in his first.

18. A declaration by Gregory Roy Haack, Principal Research Scientist at the Defence Science and Technology Organisation, primarily considering the Avanti antenna and the declarations of James and Vu.

19. A second declaration by Beadle.

SUBMISSIONS

By the Opponent

At the hearing a written statement was tabled by Mr Beadle detailing alleged section 40 defects in the claims.  In part the issues were those raised in the section 104 opposition, now withdrawn.  It was agreed that I would consider this material having allowed the applicant time to make submissions on it, and the opponent time to comment on any such submissions, and that the opponent would not address the material at the hearing.

Mr Beadle made some general submissions on claim 1, arguing that the claimed antenna was not limited to operating frequencies of 800 MHz and higher, and in any case such an ability is not inventive, that counterpoises are commonly used at many different operating frequencies, and that the counterpoise lacks any characterising feature.

A sample of the coupling element of each of the Avanti antenna and the antenna alleged to be marketed according to the invention was tendered.  This allegation was not disputed.  The coupling element is of course the part affixed to the interior of the vehicle window glass, capacitively coupled to the external radiating element, and coupled by coaxial cable to the transceiver.  The coupling element is in the form of a housing containing tuning and impedance matching components.

The Avanti antenna appears to be constructed according to the Parfitt patent, previously mentioned, dated December 1980.  Some of the literature relating to this antenna refers to this patent, though there are differences in detail and operating frequencies.

It was submitted that this antenna was widely available and used in Australia before the relevant date, and indeed was part of the common general knowledge in the antenna industry.

A detailed comparison was made between the Avanti antenna, the applicant's marketed antenna, and the antenna according to   claim 1.  The significant differences are that claim 1 defines a counterpoise and an operating frequency of 800 MHz, Avanti does not specify a counterpoise, operates at 450 MHz, and encloses the coupling components in a plastic housing.  The marketed antenna also operates at 800 MHz, and the counterpoise is a metallic housing enclosing the coupling components.  There was considerable debate about whether or not the Avanti antenna had a counterpoise in fact.  The Parfitt patent states that the antenna does not require a ground plane (column 2 line 20), but shows the system earthed (Fig 4 and column 6 line 5).  It was argued that although Avanti does not specify a counterpoise, the nature of a monopole antenna is such that whatever metallic elements the outer conductor of the coaxial cable is connected to, including the outer conductor itself, will function as a counterpoise, though perhaps not a very effective one.

This being the case, it was said, claim 1 is anticipated by Avanti.

Submissions were made regarding what was common general knowledge in the industry concerning counterpoises and "scaling".  (Scaling is the process in which a given antenna designed to operate at a particular frequency is redesigned to the same type of antenna operating at a different frequency).

It was argued that it would have been obvious to a person of ordinary skill in antenna design, and specifically being in possession the common general knowledge in that art regarding counterpoises and scaling, that the technical problems of the Avanti were indicative of a need for an effective reference plane, ie ground plane or counterpoise - see Comber's declaration. Also, it was said, going from 450 to 800 MHz was a mere scaling exercise, and was not inventive.  Claim 1 is consequently obvious.  I was referred to Acme Bedstead Co Ltd v Newlands Brothers Ltd (1937) 58 CLR 689.

In response to the applicant's argument that if it was so simple to remedy the Avanti's problems, why was Comber not successful in his attempts, it was put that Comber was just an agent for Avanti and it was not his job to redesign that antenna.

In reference to scaling, some question was raised about the conclusion reached by the inventor Hadzoglou in his declaration, where he recites his failed attempt to scale the Avanti antenna.

There was also some argument about whose expert declarants would be the most credible in judging what would or would not be obvious to a person skilled in the art, Mr Beadle contending that the applicant's declarants James and Vu being of rather extraordinary skill.

So far as the progress of the corresponding United States patent is concerned, it was submitted that it is not relevant to the present proceedings, and there are differences in the claims.

Finally, it was put that the evidence of commercial success of the invention was for the preferred embodiment, which has a conductive housing as the counterpoise, not the antenna claimed.  Mr Beadle stated that if the applicant was to restrict claim 1 to such a counterpoise, as was claimed at lodgement, the opposition would be withdrawn.  He also stated, though the document is not on file, that in the corresponding European patent the broadest claim limits the counterpoise to a conductive housing.

As I mentioned previously there were some section 40 issues raised in written submissions made at (and in response, after) the hearing.  I do not consider they are of great import however, and I will deal with them in my following decision.

From the Applicant

Mr Hinde and Mr Miller commenced with rebuttals of statements made by Mr Beadle, including that the claimed antenna is in fact limited to operating at 800 MHz and above, the counterpoise is not claimed as a mere desiderata, neither the Avanti antenna nor the Parfitt antenna has a counterpoise as it is defined in the IEEE dictionary, and that it is permissible to claim the counterpoise broadly so long as the prior art is avoided.  In relation to the definition of the claimed counterpoise, it was pointed out that the inventor Hadzoglou's reference to the conductive housing was as a "first version" of the invention.

It was also submitted that the inventor's description of his failed attempt to satisfactorily scale the Avanti antenna to the higher frequency should be accepted.

The evidence did not establish, it was argued, that either the Parfitt antenna or the Avanti antennas were part of the common general knowledge; the fact that Parfitt was admitted prior art does not prove it - Sonotone Corp v Multitone Electric Co Ltd (1955) 72 RPC 133 cited.

In any case, it is not permissible to add common general knowledge to a piece of prior art to prove lack of novelty - Nicaro Holdings Pty Ltd v Martin Engineering Co (1990) 91 ALR 513.  Applying the reverse infringement test, it was put that claim 1 was not anticipated as neither of the items of prior art operated at the claimed operating frequency, and neither had a counterpoise.  If the Avanti could be viewed as having a counterpoise, albeit ineffective, the evidence showed that it did not keep the coaxial connector "substantially cold", as claimed, and an ineffective counterpoise is not really a counterpoise at all.

So far as inventive step is concerned, it was said that since neither Parfitt nor Avanti can be taken to be in the common general knowledge, there was really no case to answer - Minnesota mining & Manufacturing Co & Anor v Beiersdorf (Aust) Ltd (1980) 144 CLR 253 (3M v Beiersdorf).

While it was accepted that a prior art document could be read in the light of common general knowledge, this was only for the purpose of interpreting that document.  It was not accepted that it was permissible to add common general knowledge to the teachings of a prior art document for the purposes of establishing lack of novelty or obviousness.

It was also put that the purpose to which the invention was applied required a broad bandwidth, and this was not achieved by the prior art antennas.

Finally, some brief submissions were made on section 40 matters, evidently anticipated from the withdrawn section 104 opposition, and mainly going to the meaning of "substantially cold".  Submissions to be made on the section 40 matters tabled at the hearing were reserved.  I allowed 14 days for these submissions, copy to Mr Beadle, and 7 days for his comments.

DECISION

The only relevant prior art is the Parfitt antenna and the Avanti antenna, associated literature of which refers to the Parfitt US patent, though there are significant differences in the details of the two.

However the only difference relevant to the present matter relates to grounding.  Parfitt states that the outer conductor of the coaxial cable is connected to the tuned circuit (in the coupling means) "at ground", and that the impedance at this end of the tuned circuit is "substantially zero" ( column 6 lines 5-7 and 32-33 respectively).  However it is not clear how or where this grounding is effected.

In the Avanti antenna the outer conductor of the cable is also connected to one end of the tuned circuit but is allowed to "float" at whatever radio-frequency energy level naturally develops there.  The Owner's Manual annexed to the Comber declaration shows that installation of the Avanti involves the placing of a piece of conductive foil between the plastic housing of the coupling means and the window trim.  This appears to be an attempt to provide some form of counterpoise or ground plane.  There is no mention of anything like this in Parfitt, though of course the frequency used in Parfitt is very much lower.

In both cases the coupling means housing is made of plastic, deliberately chosen as stated in Parfitt, to allow the tuned circuit to radiate.

In my opinion there is some slight ambiguity in Parfitt, but it is not important to my decision.  I regard the Avanti as an antenna generally in accordance with the teachings of Parfitt, with differences perhaps reflecting the different operating frequencies.

Novelty

Under this heading I apply the "reverse infringement test" as set out in Meyers Taylor Pty Ltd v Vicarr Industries (1977) CLR 228.  In applying this test I must consider whether each and every one of the essential features of the invention claimed is disclosed in a single item of the prior art (Rodi & Weinenberger AG v Henry Showell Ltd (1969) RPC 367 and Nicaro v Martin (supra)).

The only differences between what is claimed by claim 1 and the antennas of Parfitt and Avanti are the operating frequency and the presence or otherwise of an effective counterpoise.  I consider that an effective (as distinct from an ineffective) counterpoise is necessarily implied by the claimed requirement that the coaxial connector is "substantially cold" at the operating frequency.

In my view it is clear that both these features are essential.  In the case of the counterpoise, it is that which is the solution to the problems of the prior art Avanti, and in the case of the operating frequency, to be of any commercial value the antenna must be operable in the band allocated by the regulating authority.

Neither of the prior art disclosures shows an operating frequency of 800 MHz; Parfitt is about 27 MHz and the Avanti is about 450 MHz.

The matter of the counterpoise is not quite as clear-cut.  If, as was argued by the opponent, the Avanti has a counterpoise in fact by way of the cable outer conductor and the metal plate of the tuning capacitor to which it is connected, then the evidence shows that it was not sufficiently effective to make the coaxial connector "substantially cold" as is claimed.  Similar observations apply to the attachment of a conductive foil strip to the plastic housing, as described in the Avanti Owner's Manual.

The Parfitt patent does say that the impedance at the cable end of the tuned circuit is substantially zero, however this is not effected by a counterpoise but by some form of direct grounding, which is not entirely clear.

Therefore I conclude that the claims do not fail for want of novelty.

Obviousness

The opponent argued strongly that since the evidence showed the Avanti antenna to be publicly available in Australia, in the possession of the applicant, and had a known problem for which the solution would have been obvious to a person of ordinary skill in the art, then therefore claim 1 was obvious. And, if this case was being decided under the Patents Act 1990, I would wholly agree.

However, in fact it is being decided under the Patents Act 1952, and consequently I am bound by the judgement in the case of 3M v Beiersdorf (supra).  If I understand this judgement correctly, it is not sufficient, for a prior disclosure to be considered under this heading, that it be publicly available or publicly available and known to the applicant, it must also be shown to be in the common general knowledge (cgk).

Mr Beadle did refer me to Acme Bedstead v Newlands (supra) as authority for adding cgk to a prior disclosure for the purpose of establishing obviousness, however I think that case is more concerned with the interpretation of words or phrases in the light of cgk.

The applicant submitted that the evidence failed to establish that either the Parfitt or Avanti antennas were part of cgk.  As regards Parfitt, there is really no evidence at all on this point, and I agree with the applicant.

The Avanti antenna, on the other-hand, was imported into and distributed in Australia for a period of about two years before the priority date, by two different companies, apparently at different times; see the declarations by Comber and Jacques.  The evidence regarding the extent of distribution and sales for this antenna during this period is very slight.

The opponent's declarants included a number of experts.  However none of them make any reference to the Avanti antenna in respect of cgk, despite the clear opportunity to do so.  The closest to do so is Czernowics when he says that he was personally aware the antenna was commercially available in Australia before the priority date.  Generally, the experts' statements are along the lines that, on being presented with the Avanti antenna, it would have been obvious to them that a counterpoise would be needed for satisfactory operation, which of course is a different issue from whether or not the antenna was cgk.

In my opinion the evidence fails to establish that the Avanti antenna was part of the common general knowledge in the art of antenna design in Australia at the relevant date.  I think that it may have been, but the onus is on the opponent by its evidence to show it, and it has not done so.

Accordingly, I am precluded by 3M v Beiersdorf (supra) from further consideration of either the Avanti or the Parfitt antennas.

I must conclude therefore that the claims do not fail for obviousness.

Section 40

I think that the section 40 objections are fairly laboured; I will mention only one of them.  The opponent complains that the expression "substantially cold" is not clear.  I find this difficult to take seriously; the expression "cold" is a term of art (as the opponent's declarants would well-know), and the qualification "substantially" is very frequently used in the drafting of patent claims.  I can see no problem with its use here.

As for the other matters raised, I prefer the "purposive construction rule", recently endorsed by Burchett J in International Business Machines Corp v Commissioner of Patents 22 IPR 417, and find them without real substance, except for claim 2.

I cannot understand this claim, or even its intention.  Whereas claim 1 has the first conductor of the coaxial connector coupled to the conductive member, claim 2 appears to have it coupled by the second conductor.  Also, I do not know what is meant by "a selected conductor in the transceiver".

Conclusion

I have decided that the claims are novel and non-obvious, and that claim 2 is not clear.  I allow the applicant 60 days from the date of this decision in which to propose amendments directed at clarifying claim 2.

Costs

The opposition has failed on the grounds relating to novelty and obviousness, and succeeded only in relation to the lack of clarity of a dependent claim.  While amendments were made to the specification as a result of the opposition, and the amendments were constructive, in my opinion they did not have the effect of altering the outcome of the opposition.  Therefore I award costs against the opponent.

RG Tolhurst
Delegate of the Commissioner of Patents

Patent attorneys for the applicant  :  Spruson & Ferguson, Sydney

Patent attorneys for the opponent   :  Carter Smith & Beadle, Melbourne