Baracuda (Proprietary) Limited v Fernand Louis Oscar Joseph Chauvier

[1987] APO 33

In the Matter of the Patents Act 1952

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In the Matter of Application 521920 for a Patent of Addition by BARACUDA (PROPRIETARY) LIMITED

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In the Matter of Opposition thereto under Section 59 by FERNAND LOUIS OSCAR JOSEPH CHAUVIER.

DECISION OF A SUPERVISING EXAMINER OF PATENTS:
         By a decision dated 14 January, 1987 I found the opposition successful on the grounds of non‑compliance with section 40 and prior claiming.  The decision concluded thus:

"... rather than refuse the application at this stage, I will allow the applicant a period of 60 days from the date of this decision to consider and if thought appropriate request any amendment action.  Unless a request to amend is filed in that period or the application withdrawn, and subject to any appeal being filed against this decision, I will refuse the application."

On 3 February, 1987 the applicant filed an appeal against the decision in the Supreme Court of Victoria but by letter dated 12 June, 1987 the Appellant's solicitors gave Notice of Discontinuance of the Appeal to the Commissioner.
         By letters dated 24 August, 1987, I informed the patent attorneys representing the parties to this action that consequential to the discontinuance of the appeal, the matter could further proceed before the Patent Office.  Those letters further advised:

"In view of the appeal action and subsequent discontinuance, I direct that the applicant be allowed a further 30 days from the date of this letter to request any amendment action.  Unless a request to amend is filed in that period or the application withdrawn, I will refuse the application."

In the further time allowed, no communication has been received from the applicant or its patent attorneys in respect of this matter.  I also note that a continuation fee fell due on this application on 6 October, 1987 but has not been paid : in view of section 47D(2), such fee is payable as late as 6 April, 1988 subject to extension fees.
         Whilst currently the application is technically in a state of lapse re continuation fees, it is nevertheless appropriate that I should determine the opposition matter.  In the absence of any action by the applicant in the time allowed to amend its application to avoid the successful grounds of opposition, I refuse the application.

(T.R. BRUHN)

Patent Attorneys for the Applicant : Clement Hack & Co.