Arthur Charles Carpenter v. Sue Agencies Pty. Ltd.

[1986] APO 18

In the Matter of the Patents Act 1952

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In the Matter of Application No. 534141 by ARTHUR CHARLES CARPENTER

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In the Matter of Opposition thereto under Section 59 by SUE AGENCIES PTY. LTD.

INTERIM DECISION OF A SUPERVISING EXAMINER OF PATENTS:
Background
         Patent application number PF1491 accompanied by a provisional specification was lodged on 10 November, 1981 in the name of ARTHUR CHARLES CARPENTER.  A complete specification was lodged on 3 May, 1982 when the application was accorded number 83242/82.  The application was advertised accepted on 5 January, 1984 under number 534141.  A notice of opposition was lodged on behalf of SUE AGENCIES PTY. LTD. on 23 February, 1984.  That notice recites the following grounds of opposition:

1.That the invention, so far as claimed in any claim, was published in Australia before the priority date of that claim;

2.That the invention, so far as claimed in any claim, was obvious and did not involve an inventive step, having regard to what was known or used in Australia on or before the priority date of that claim; and

3.That the invention, so far as claimed in any claim, was, before the priority date of that claim otherwise not novel in Australia.

The opposition was heard in Canberra on 25 November, 1985 when the applicant was represented by Mr. C. Anese, patent attorney, of Spruson & Ferguson, Sydney and the opponent was represented by Mr. C.J. Oberin, patent attorney, of Phillips, Ormonde & Fitzpatrick, Melbourne.

The specification is entitled "Apparatus for Removing an Animal from a Shell".  The specification explains that:

"Whilst the apparatus of the invention may be usefully employed with a variety of shells it is particularly suitable for removing the animal from a Trochus niloticus shell (commonly called a "trocas" shell).  The invention will be described in relation to its use for removing an animal from a trocas shell. It should be appreciated that this is by way of example only and that the apparatus of the invention may also be used for removing animals from other types of shells.  The term "trochas shell" as used hereinafter means a shell of the Trochus niloticus variety or any other shell having the same general top shape and helical internal passage."

The specification explains that a trochus shell is a top shaped shell, about 3 inches high, coloured with broad stripes of alternate red and white, beneath which is solid mother of pearl.  The shells are usually gathered by hand, cleaned of the fish by boiling the shell or by allowing the animal to rot, and then bagged for the market.  Boiling of the shell enables the animal to be removed and consumed, however boiling of the shell tends to lessen the quality of the finish of the shell.  Also, the animal within the shell is considered to be a delicacy.  When the shell is boiled the animal may be removed.  However, it is difficult to obtain an export licence for cooked meat. Presently the shell with the animal still inside is frozen and shipped to the market place.  The animal may then be removed by the purchaser by either boiling the shell whole which tends to destroy the quality of the shell, or by breaking the shell and removing the animal.  The latter completely destroys the shell.  (The main use of trochus shell appears to be button manufacture).  The specification then states that an object of the invention is to provide an apparatus for and method of removing an animal from a shell whilst maintaining the shell intact.
         Claims 1 to 7 are claims to apparatus for removing an animal from a trochus shell (claim 7 being an omnibus claim) and claims 8 to 10 are claims to a method of removing an animal from trochus shell (claim 10 being an omnibus claim).  Claims 1 and 8 are as follows:

1.An apparatus for removing an animal from a trochus shell as hereinbefore defined, said apparatus comprising a tubular substantially helical main portion having an inlet for ingress of fluid into the interior of said main portion and an outlet adjacent one end of said main portion for egress of fluid from the interior of said main portion and an attachment portion for coupling the apparatus to a source of high pressure fluid.

8.A method of removing an animal from a trochus shell as herein‑

before defined using the apparatus of any one of claims 1 to 7 comprising:

inserting said one end of the apparatus into the shell, causing relative rotary motion between the shell and the apparatus to position said one end interiorly of the shell and adjacent the apex thereof and injecting high pressure fluid into said apparatus whereby the fluid escapes from said outlet and urges the animal out from the shell.

The priority date of the claims is 10 November, 1981.
Evidence
         The evidence in support of the opposition consists of a declaration by Raymond Sue (a director of the opponent) and declaration by Tony Irelandes (who is Manager with the QED Aboriginal and Torres Straight Islanders Corporation for Legal Aid Services, and who is, and for the last 8 years has been, a trochus fisherman).
         Sue Agencies are import and export agents for seafood.  According to Mr. Sue's evidence, late in 1980 he was approached by a Hong Kong company which wished to purchase trocas shells.  Mr. Sue was contached in July 1981 by Arthur Charles Carpenter (the present applicant) who informed Mr. Sue that he could provide the shell he required and that the trocas meat removed from the shell was in demand, particularly in Asia where the meat was a delicacy.  Mr. Sue also states that:

"... in July 1981, Mr. Carpenter showed me a tool which he proposed to use to extract the meat from the Trocas shell.  The tool was a helically wound metal tube as described and illustrated in Australian Application No. 534141.  However, I do note one alteration, in that the apparatus 1 of the above application is provided with an attachment portion 8 which enables the apparatus to be threadably attached to a supply line.  The tool Arthur Charles Carpenter showed me in July 1981, had a flared end, which was adapted to engage a flexible hose.  When showing me the tool, I enquired whether or not he had a patent for the apparatus, and he advised me that he had a "world patent" and that if anyone "knocked him off" he would "take them to the cleaners".  I was also not required to keep any of the information given to me confidential.  I further note, that Australian Application No. 534141 has the priority date of the 10th November 1981, approximately four months later than when Mr. Arthur Charles Carpenter showed me the tool."

Mr. Sue goes on to state that beginning July 1981 he began approaching Australian Trade Commissions throughout the world asking that they provide him with whatever information they might be able to gather, in respect of possible markets for the shell and meat.  Attached as Exhibit RS‑1 and dated 10 September, 1981 is a copy of such a letter sent to the Minister (Commercial) at the Australian Embassy in Paris.  That letter is corroborative of some of the material in the declaration, in that it states:

"As exporters we are seeking a market for whole Trochus Shell and Trochus Meat ... Our Principal has developed a new concept for removing the meat from the shell without damaging either product ... We would appreciate any assistance you can give us in contacting possible markets for these products ..."

In paragraph 6 of his declaration Mr. Sue states that:

"On later occasions when I have had contact with Mr. Tony Irelandes, I informed him that Mr. Carpenter had showed me a tool he proposed to use to extract the meat from Trocas shells.  Mr. Irelandes, then described to me, in detail, the tool shown to me by Mr. Carpenter, and advised me that he had shown Mr. Carpenter such a tool in 1979.  He further advised me, that he had been using the tool for many years to extract meat from Trocas shells and more particularly, had attached the tool, to a pump driven by a two and a half horsepower motor.  The pump was coupled to the tool by means of a flexible hose which was attached by a hose clamp to a flaired end of the tool."

The second declaration in the evidence in support is that of Mr. Tony Irelandes, who, after stating that he has been a trochus fisherman for 8 years, goes on to state that:

"When I first began Trocas fishing, I cleaned the Trocas shell by forcing into the shell, a flexible hose connected to a supply of water under pressure.  I originally saw this method of extracting meat from the shell, being performed by Trocas fishermen on Thursday Island.  This method was generally time consuming and I subsequently manufactured from copper tubing, a spiral which defined a generally conical configuration.  Attached hereto and marked Exhibit TI‑1 is a photograph of the tool I manufactured.  It can be noted that one end of the copper tubing is enlarged to enable attachment thereof to a supply of water under pressure.  More particularly, I attached the tool to a flexible hose which led to a pump driven by an auxiliary motor.  This tool was normally used by me to remove "trailings" which remained in the shell after the main "mussel" meat had been removed by a wire hook.  The tool was used by winding the Trocas shell onto the spiral and letting the apex of the tool deliver water under pressure to the internal apex of the shell.  This water under pressure then forced out any meat or "trailings" which remained in the shell.  I later redesigned the tool and used a stainless steel tubing.  Other Trocas fishermen had seen my tool to extract the meat from the shell, and had subsequently manufactured their own tools of substantially identical design again to perform the function of extracting the "trailings" or meat from the Trocas shells ...

.At about early 1979, at my premises, I was approached by Arthur Carpenter who said he was interested in the Trocas shell and had heard that I had a tool which extracted the meat and "trailings" from the shell.  I then showed him the tool which is depicted in the photographs marked Exhibit TI‑1.

.Twelve to eighteen months after my meeting with Arthur Carpenter, I received a call from my nephew, Robert Dorante, who informed me that Arthur Carpenter was building equipment similar to that made and used by me and that Carpenter had approached him to manufacture the equipment ..."

The photographs in exhibit TI‑1 show a tool made from what appears to be copper tubing.  A length of tubing is formed into what should be described as a three‑dimensional spiral; that is, the tubing is of such a shape that it appears to have been bent around the surface of a cone, there are about 3‑1/3 turns to the spiral.  The outer end of the spiral of tubing is attached to a relatively short piece of tubing of intermediate diameter, which in turn is attached to a longer piece of tubing of larger diameter.  Although there appears to be solder on the visible surface of the intermediate piece of tubing, it is not possible, from the photographs, to tell how the pieces of tubing are jointed.
         The evidence in answer consists of declarations by Arthur Charles Carpenter (the applicant), Gregory James Hockey and Robert James de Laine.  In his declaration Mr. Carpenter first states that he is a professional fisherman. His account of the background to the invention is as follows:

"5.In January 1979 I took possession of the vessel "Sea Wyfe" in Sydney and in the early part of 1979 I sailed the vessel to Southport, south of Brisbane.  I spent some time working on the vessel at Southport and after fitting out the vessel I sailed it to Townsville arriving there at about September 1979.  After stopping in Townsville for some time I sailed to Cairns and then to Thursday Island arriving on Thursday Island around December 1979.

6.In clause 3 (of the declaration by Mr. Irelandes) ... he states that I approached him at his premises about early 1979.  I have no recollection of any such meeting taking place.  I did not visit Mackay or any part of Northern Queensland at any time during the first half of 1979.

7.Sometime after arriving on Thursday Island late in 1979 I sailed to Darnley Island which is approximately 110 miles north east of Cape York Peninsular.  I spent about three months at Darnley Island and during that time I saw how the meat was extracted from trochus shells.  Basically the shell was boiled and then a piece of wire was inserted into the shell to remove the meat.  Attempts were then made to remove the remaining pieces of meat by flushing the shell with water ejected at low pressure from a flexible hose.

8......

9.I subsequently learned that boiling the newly harvested shells in water as I had observed at Darnley Island kills the animal making the meat soft and flabby and relatively easy to remove from the shell by shaking or with a wire hook ...

10.I had also observed during my time at Darnley Island that freshly harvested trochus shells sometimes carry a coating of coral which needs to be removed to make use of the shell as a source of Mother of Pearl. ... While I had been working on the Sea Wyfe at Southport during 1979 I had seen engineers working with water jets to cut coral away from the hulls of ships.  It seemed to me that if a satisfactory jet could be obtained it might be used to cut away coral from the outside of the trochus shell.  Therefore in late 1980 when I sailed my vessel to Cairns, I intsalled on the vessel an 8 hp diesel pump before returning to Thursday Island.

11.During the latter part of 1980 I experimented with the use of a water jet generated by the recently installed pump but came to the conclusion that a water jet was not suitable for removing coral from the outside of a trochus shell.

12.However, during this work it occurred to me that a jet of water may be useful in removing fresh meat from inside the trochus shell.  As I did not have my own engineering workshop on Thursday Island the facilities of T.I. Engineering were made available to me and I used them for fabricating a succession of prototypes which lead to my invention of the apparatus and method now the subject of my Australian patent application 534141.  My initial work involved the use of copper tubing and this early work was observed by Robert Dorante at T.I. Engineering.  I note Irelandes refers to a Robert Dorante at Clause 4.  At that stage, however, I was using various types of copper tubing in the prototype apparatus and I had not yet invented the apparatus and method which became the subject of Australian patent application 534141.  In fact, the prototypes I constructed using copper tubing were unsuccessful as I found that by increasing the pressure above a low pressure of around 40 p.s.i. the copper tubing frequently distorted or fractured.

13.Subsequent work with stainless steel tubing revealed that such tubing would retain a preformed shape when subjected to high pressures in the region of 1000 p.s.i. and by the middle of 1981 I considered I had invented a satisfactory apparatus and method for extracting trochus meat while preserving Mother of Pearl layer in the shell.  I therefore decided to travel south from Thursday Island to investigate the marketing of trochus shell and frozen uncooked trochus meat and the patenting of my invention.  Confidential enquiries at the Commonwealth Department of Trade and Resources provided a list of potential agents and Raymond Sue was one of the people on that list.

14.During 1981 I did make a visit to Sue however a check of my appointments indicates that the visit would not have taken place in July 1981 but during early October or possibly late September 1981.  That visit was made with a view to Sue acting as my agent to find markets for trochus shell and trochus meat, for advice as to patenting my invention in Australia and overseas and to investigate the prospect of selling the invention overseas.  As my approach to him was on the basis that he would be acting as my agent to make these enquiries, the circumstances were such that my visit to him was on a confidential basis and I understood that to be the case and that he was not at liberty to tell anybody about the invention which I had developed if by doing so it would be detrimental to my interest.

15.I did discuss with Sue during our meeting the general field of my invention, namely the removal of fresh trochus meat without harming the shell.  I agree with Sue that a tool was shown to him during that meeting (at his insistence) which had a flared end adapted to engage a flexible hose.  This was an early prototype low pressure pressure unit designed for ejecting water at around 40 p.s.i. to flush out trochus shells from which the majority of the meat had been removed following boiling, and hence did not disclose the features of my invention which became the subject of Australian patent application 534141.

16.My earliest recollection of having discussed my invention with Irelandes is during my visit to Mackay later in 1981 by which time the provisional patent application No. PF1491 had been lodged.  Australian patent application 534141 claims priority from the aforesaid provisional patent application No. PF1491.  During that initial meeting Irelandes explained to me the method he had used for removing trochus meat from a trochus shell which involved boiling the shell before removal of the meat by shaking or with a wire hook prior to inserting a coiled copper tube as depicted in Exhibit TI‑1 and flushing the shell with water passed through the tube at a pressure of approximately 40 p.s.i.

17.To the best of my recollection the apparatus and method described to me by Irelandes late in 1981 did not differ in any material respect from the apparatus and method previously observed by me on Darnley Island which were incapable of separating fresh meat from unspoiled trochus shell and led to my invention of the apparatus and method the subject of Australian patent application 534141.

There are a number of contradictions between the two sides to this opposition in the evidence I have considered so far, concerning

‑the date on which Mr. Carpenter first met Mr. Irelandes,

‑the date on which Mr. Carpenter first met Mr. Sue, and

‑whether the circumstances of the meeting between Mr. Carpenter and Mr. Sue were such that Mr. Sue was free to publish details of Mr. Carpenter's invention.

None of the declarants were called as witnesses and cross‑examined at the hearing, so I have no material other than the written declarations to aid me in deciding which history of the events is the more credible.  On consider‑
ing those declarations I can resolve only one of the three items listed above.  That concerns the date of the first meeting between Mr. Carpenter and Mr. Sue. Mr. Carpenter states in his declaration that:

"During 1981 I did make a visit to Sue however a check of my appointments indicates that the visit would not have taken place in July 1981 but during early October or possibly late September 1981."

On the other hand, the copy of Mr. Sue's letter to Mr. Tinney at the Australian Embassy in Paris which is exhibit RS‑1 is dated 10 September, 1981 and states that:

"Our principal has developed a new concept for removing the meat from the shell without damaging either product.  Until now the methods of removing the meat from the shell were either by boiling the meat in the shell or breaking the shell to remove the meat.  Boiling the meat makes it useless as a commercial product and damages the Nacre of the shell.  Breaking the shell destroys its commercial value."

As this letter is dated 10 September, it is evidence that Mr. Sue was aware of details of the invention before "late September" which, according to Mr. Carpenter, was the earliest date on which he could have met Mr. Sue.  Either the date on the letter is wrong or Mr. Carpenter's recollection of events during the latter half of 1981 is wrong.  I think it far the more likely that the date on the letter is correct and that Mr. Carpenter disclosed details of the invention to Mr. Sue in July 1981.  However, as I am unable to resolve the issue whether or not the circumstances of the meeting between Mr. Sue and Mr. Carpenter were such that Mr. Sue was obliged to maintain the confidentiality of those details of the invention, this finding in no way aids the opponent's submissions that Mr. Carpenter "prior published" his invention at that meeting.

         I do however think I can find that, prior to November 1981, apparatus such as that appearing in the photographs in exhibit TI‑1 was in use by Mr. Irelandes, that Mr. Irelandes had used stainless steel tubing in such apparatus, and that Mr. Irelandes had attached such apparatus to a pump driven by a two and a half horsepower motor by means of a flexible hose which was attached by a hose clamp to a flared end of the tool.
         I consider the other evidence lodged by the applicant and by the opponent below.
The Claims
         Claim 1, if it is distinguishable at all from the stainless steel version of Mr. Irelandes' apparatus, is distinguishable only in that it defines "an attachment portion for coupling the apparatus to a source of high pressure fluid", and I have some difficulty in determining what limitations these words import into the claim.
         The consistory statement appearing on page 3 of the description, like the claim, refers to "an attachment portion for coupling the apparatus to a source of high pressure fluid".  On page 4, in the description of a preferred embodiment of the invention, the description states:

"The apparatus of the invention is also provided with an attachment portion 8. ... The attachment portion is suitable for coupling the apparatus to a supply of high pressure fluid. The attachment portion may be of any suitable type.  For example, the attachment portion may be a frictional fit with a co‑operating fitting at a supply of high pressure fluid.  Alternatively the attachment portion may be a bayonet fitting. It is preferred however that the attachment portion be a screw coupling adapted for attachment to a complementary fitting provided at a supply of high pressure fluid."

I am of the opinion that the end of the tube of the Irelandes' apparatus could be described as an "attachment portion" which would be a frictional fit with a "co‑operating fitting" (the hose and hose clamp), and must conclude that this passage in the description is describing the apparatus as used by Mr. Irelandes.  However, the specification also states, in the paragraph bridging pages 5 and 6, that:

"The fluid employed may be at a pressure within the range of 1000 to 5000 pounds per square inch.  A particularly preferred range of pressure for the fluid is 1000 to 2500 pounds per square inch ..."

The evidence put in by the parties may be of some assistance in determining what is meant by "high pressure".  Paragraph 14 of the declaration in reply by Mr. Irelandes states:

"I also note from reading Mr. Carpenter's patent application that in claims 1 to 7, which are directed at the apparatus, Mr. Carpenter merely refers to a high pressure.  I believe this to be totally vague as there is no datum from which this "high pressure" could be judged.  For example, when first using my apparatus I used to use mains pressure water.  I then used a higher pressure provided by a pump.  Accordingly, in this respect Mr. Carpenter's patent application is vague and unclear."

The applicant has put in two declarations by engineering witnesses.  The first of these is by Mr. Gregory James Hockey who is a qualified mechanical engineer and Managing Director of Hockey Engineering Pty. Ltd. of Cairns.  Mr. Hockey declares that:

"2.During September 1982 Arthur Charles Carpenter ... consulted Hockey Engineering in relation to a method and apparatus he had invented for the removal of fresh meat from trochus shell ... and thereafter Hockey Engineering worked at Carpenter's request in relation to various engineering aspects of the Carpenter invention and the commercial application thereof.

.....

6.Hockey Engineering fabricated several sets of apparatus according to the Carpenter invention and conductes tests on the effect of varying pressures and volumes and the power require‑

ments for successful operation of the Carpenter invention.

7.The work conducted by Hockey Engineering verified that a high pressure preferably around 1000 p.s.i. was necessary to remove fresh uncooked meat from a trochus shell and that pressures in the region of 1500 p.s.i. are particularly suitable for such removal.

8.In order to deliver water or other suitable fluid to the outlet of an apparatus as shown in Figure 1 of the opposed specific‑

ation at a high pressure in the vicinity of 1000 p.s.i. it is necessary to provide means for connection of the inlet of the apparatus to the supply of high pressure fluid capable of withstanding such pressure.  From my experience and the work conducted by Hockey Engineering in relation to the Carpenter invention I consider a threaded attachment portion of the type shown in Figure 1 of the opposed specification to be particularly suitable for such an application.

.....

11.From my experience, and in particular from work conducted by Hockey Engineering in relation to the Carpenter invention, I would not expect the tool described by Irelandes and shown in Exhibit TI‑1 to the Irelandes Declaration in this matter to be suitable for the delivery of water at high pressure to the interior of a trochus shell, firstly, because the copper tubing may deform or fracture at a high pressure in the vicinity of 1000 p.s.i. and secondly because the use of a hose clamp to attach the enlarged end of the copper tubing to a supply of water would not be capable of withstanding such pressure.

12.In his Declaration Sue describes the Irelandes tool as being coupled to a pump driven by a 2> horse‑power motor by means of a flexible hose which was attached by a hose clamp to a flared end of the tool.

13.I would not expect the arrangement described by Sue to be capable of delivering water to the interior of a trochus shell at a high pressure in the vicinity of 1000 p.s.i.  Such an arrangement would however be consistent with the supply of water at lower pressure such as would be used to flush out trochus shells from which a majority of cooked meat had already been removed."

The second engineering witness is Robert James de Laine.  The material parts of Dr. de Laine's declaration are as follows:

"9.In Clause 2 of his declaration Irelandes describes a tool manufactured from copper tubing ... Irelandes describes the trailing end portion as being enlarged to enable attachment thereof to a supply of water under pressure.

1. Irelandes does not state what the pressure of the water is upon delivery from the apex of the tool shown in Exhibit TI‑1.  However, the approximate upper limit of pressure can be deduced from the type of connection used.

11.At lines 11 to 13 of paragraph 2 of his declaration Irelandes states that "one end of the copper tubing is enlarged to enable attachment thereof to a supply of water under pressure".  Irelandes makes no mention of a hose clamp or other special means for connecting the flexible water supply hose to the enlarged portion of the tube and no such clamp is visible in Exhibit TI‑1.  With the hose forced onto the enlarged portion of the tube by hand, the connection would be suitable for use at around 30 p.s.i. with an expected maximum of 60 p.s.i.

12......

13.Sue states in his declaration that a hose clamp was used by Irelandes.  In field practice hose clamps are typically employed for pressures up to 100 p.s.i. whereas a threaded fitting of the type shown in the drawing of the opposed specification would be capable of withstanding a high pressure of at least 1000 p.s.i.

14.Irelandes does not give details of the copper tubing used in the tool shown in Exhibit TI‑1.  I consider thin walled copper tubing as readily available commercially to be suitable for the delivery of water at low pressures but at high pressures in the vicinity of 1000 p.s.i. such tubing would be liable to deform and/or fracture.

15.I consider the tool described and defined in the opposed specification would be capable of delivering fluid at a high pressure in the vicinity of 1000 p.s.i. to the interior of a trochus shell whereas the tool described by Irelandes and shown in Exhibit TI‑1 and the tool described by Sue and Carpenter ... are unlikely to be capable of delivering fluid from the outlet at pressures in excess of 100 p.s.i."

I think it a correct interpretation of the engineering evidence to say that the apparatus of the invention would operate to remove a live animal from a trochus shell only if operated at pressures of at least 1000 p.s.i.  The interpretation of the description in the specification is not as clear‑cut.  The specification states:

"... there is provided an apparatus ... having ... an attachment portion ... for coupling the apparatus to a source of high pressure fluid ... in (a preferred form of the apparatus) ... the attachment portion may be a frictional fit with a co‑operating fitting at a supply of high pressure fluid. Alternatively the attachment portion may be a bayonet fitting ... The apparatus is made of any suitable material ... It has been found that any suitable pressure may be used to urge the animal out of the shell.  The fluid employed may be at a pressure within the range of 1000 to 5000 pounds per square inch.  A particularly preferred range of pressure for the fluid is 1000 to 2500 pounds per square inch ..."

The description accordingly states that any "suitable" pressure may be used, describes the apparatus as having an attachment portion for coupling to a source of "high pressure" fluid, states that the fluid "may" be at a pressure within the range of 1000 to 5000 p.s.i., and states that "a particularly preferred range" of pressure is 1000 to 2500 p.s.i.  On reading the description as a whole I am unable to come to any conclusion as to whether the expressions "suitable pressure", "high pressure" and "1000 to 5000 p.s.i." are synonomous or whether each of those expressions describe different (although possibly overlapping) ranges of pressure.  The result is that the meaning of the expression "high pressure", where it appears in the description and in the claims, is unclear.  I do not think that this lack of clarity could be remedied by a reference to the common general knowledge of the skilled addressee of the specification, as the term "high pressure" is not a term of art in the relevant field.
         It follows that the specification offends against paragraph 40(1)(a) and that the claims offend against sub‑section 40(2), and I am unable to decide whether or not the Irelandes apparatus anticipates any of the claims.  The opposition has succeeded, but as it may be possible to overcome the objections to the specification and claims I allow the applicant 60 days from the date of this decision in which to lodge amendments.  I reserve my decision on costs.

(ALLEN EVANS)