Beaumont Gregory Lyons v Jonathon Charles Albert Noble - [2007] APO 17

ABSTRACTS OF DECISIONS
DECISION OF A DELEGATE OF THE COMMISSIONER OF PATENTS
Application : No. 757504 in the name of Beaumont Gregory Lyons

Title: A Hammock Stand

Action: Opposition under S59 and under S104 opposition to proposed amendments under S102 by Jonathan Charles Albert Noble

Decision: Issued 4 May 2007.
Abstract

A joint opposition under S59 and S104 was held.
With regard to the claims as accepted, they were found to lack fair basis, novelty and inventive step. With regard to the claims as proposed to be amended, claims 1 to 12 and 25, 26 lacked either novelty and / or inventive step and claims 1 to 12 of the claims as proposed to be amended lacked fair basis. The amendments were found to be allowable and the patent applicant was given an opportunity to file amendments.
PATENTS ACT 1990
DECISION OF A DELEGATE OF THE COMMISSIONER OF PATENTS
Re:Patent Application No. 757504 by Beaumont Gregory Lyons and opposition under s59 and under S104 opposition to amendments proposed under s102 by Jonathan Charles Albert Noble.

BACKGROUND

Patent application 91353/01 was filed on 15 November 2001 by Beaumont Gregory Lyons (Lyons) and claimed priority from an Australian provisional application PR1504 dated 17 November 2000. The application underwent expedited examination and was advertised as accepted on 20 February 2003.
Opposition was filed by Jonathan Charles Albert Noble (Noble) on 20 May 2003 and after 6 extensions of time service of evidence-in-support was completed. On 22 February 2005, after two extensions for time for serving evidence-in-answer, Lyons filed an application under s104 to amend the specification. Lyons also indicated that he would not be filing any evidence-in-answer.
On 11 April 2005, Noble filed his comments on the amendments. On 7 July 2005, the S104 application was advertised as accepted and on 7 October 2005, a notice of opposition was filed.
Both parties agreed to a joint hearing on the oppositions. Consequently, a hearing on the oppositions was set down for 7 July 2006 at Canberra. Garry Adrian Wilson, patent attorney of Garry Wilson Patent and Trade Mark Attorney attended on behalf of Noble. Mr Trevor Dredge, patent attorney of Intellpro attended by phone on behalf of Lyons.
Since the hearing, an issue of further evidence was raised. At the hearing a discussion on the S45(3) search results occurred. While these results were filed with IP Australia on 12 January 2005, Noble was unaware of them. This discussion alerted Noble to the existence of an US filed patent application who subsequently filed a request under Patents Regulation 5.10(4) to serve further evidence. In this application, which was filed on 21 July 2006, Noble requested that he be allowed time in which to file evidence on claim construction. In particular, Noble sought to adduce the respective examiners reports and attorney’s submission for the current case and for the corresponding overseas application US 6912744 (Lyons). In response to this application, I proposed a direction that the provisions of Patent Regulation 5.11 be used to bring the s45(3) search results into the opposition as a matter of efficiency and that assertions made by Lyons during the prosecution before the USPTO was not, prima facie, relevant to the issue of claim construction in Australia. However, as neither party was in total agreement with this suggestion, I directed on 20 October 2006 that Noble should file his further evidence and that a hearing on this matter should be set down. On 6 November 2006 Noble filed his evidence in the form of a statutory declaration from Garry Adrian Wilson.
The hearing was set down for Canberra on 29 November 2006. Garry Adrian Wilson, patent attorney sent in submissions on behalf of the opponent, Noble. Mr Trevor Dredge, patent attorney of Intellpro attended by phone on behalf of the patent applicant, Lyons.
Essentially, Noble requested leave to serve further evidence in an opposition in which the s59 and s104 oppositions on the matter had been conducted. Specifically, Noble sought to adduce further evidence relating to claim construction issues and in particular it sought to adduce the examination reports made by the Australian patents examiner in the application in suit and by the US examiner in the corresponding US patent, US 6912744 (Lyons). Furthermore, attorney’s submissions in these prosecutions were also sought to be adduced. Leave for these matters was not granted. Lyons further sought to adduce those patent applications referred to in a filed s45(3) search result which were not already in evidence. As this material was considered highly relevant to the issues of novelty and inventive step, leave was granted. The decision on this matter has issued and is reported as Beaumont Gregory Lyons v Jonathon Charles Albert Noble [2006] APO 40 (20 December 2006). In his decision, the delegate gave a further period within which to make further submissions.
On 19 January 2007, Lyons responded with his comments in the form of a statutory declaration.
THE SPECIFICATION
The technical field of the invention is a hammock stand. The hammock stand consists of two upstanding inverted U shaped frame members defining supports means for the hammock which is strung between the frame members. According to the specification this will allow a full length hammock to be utilised with shorter format.
The accepted application consisted of 6 pages of description with two pages of claims and 3 pages of drawings containing 3 figures.
In the background section of the specification, it is stated that hammocks are traditionally strung between two posts but if no support structure is available then hammock stands are used. However, according to the specification, these tend to be large and must be strong enough to support the weight of two persons. The prior art described in the specification reveals hammocks that are supported at the point of cord convergence and hammocks that utilise a cross bar having spaced fixing points that constrain the ends of the hammock cords in parallel spaced relation. The purpose of the invention is to overcome the problems with the prior art.
The specification describes two types of hammock supports, one in figure 1 (a metal frame stand) and figure 2 (a timber frame stand) which relate to embodiments in which the cords pass over cord supports and are anchored at cord anchors and figure 3 (a metal frame stand) which relates to an embodiment in which the cords terminate at the cord supports. At acceptance only those embodiments that are illustrated by figures 1 and 2 were claimed.
The specification ends with 15 claims with claim 1 being independent and with claims 14 and 15 being omnibus claims directed to figures 1 and 2 respectively.
Claims as accepted
“1. A hammock stand comprising a frame assembly having a base frame and spaced hammock cord supports whereby a hammock can be strung between the cord supports in operative position, characterised in that the hammock cord supports are adapted to support hammock cords in spaced relation, the stand having respective cord anchors spaced from said supports so that the cords pass over the cord supports and are anchored at said anchors.
2. A hammock stand according to claim 1 wherein the base frame comprises spaced longitudinally extending frame members adapted to be positioned below and on opposite sides of a hammock centre line, the supports comprising upstanding frame members supported by the base frame members and a cross-bar extending across an imaginary line extension of the hammock centre line.
3. A hammock stand according to claim 1 wherein the frame assembly when viewed end on has a trapezium shape being widest at the base frame.
4. A hammock stand according to claim 1 wherein the frame assembly comprises side frame members connected at opposite ends by at least two crossbars, an upper one of said at least said two cross-bars providing said hammock cord support and a lower one of said cross-bars providing said anchor for hammock cords.
5. A hammock stand according to claim 1 wherein said hammock cord supports have hammock cord restraining means blocking outward movement of outermost ones of said cords.
6. A hammock stand according to claim 1 wherein said cord anchors comprise respective cross bars located below said respective cord supports.
7. A hammock stand according to claim 1 wherein said cord anchors are at a position below said supports.
8. A hammock stand according to claim 5 wherein said cord restraining means comprise bilateral upstands to prevent the cords from sliding sideways off the supports.
9. A hammock stand according to claim 1 wherein said cord anchors comprise respective cross bars located below said respective cord supports, each cross bar having a centrally located anchor point to which the cords converge.
10. A hammock stand according to claim 1 wherein the base frame comprises spaced longitudinally extending frame members adapted to be positioned below and on opposite sides of a hammock centre line, the supports comprising upstanding frame members supported by the base frame members and a cross-bar extending across an imaginary line extension of the hammock centre line, the frame assembly when viewed end on has a trapezium shape being widest at the base frame.
11. A hammock stand according to claim 1 wherein the base frame comprises spaced longitudinally extending frame members adapted to be positioned below and on opposite sides of a hammock centre line, the supports comprising cross-bar extending across an imaginary line extension of the hammock centre line, lower cross-bars providing said anchors for the hammock cords.
12. A hammock stand according to claim 1 wherein the base frame comprises spaced longitudinally extending frame members adapted to be positioned below and on opposite sides of a hammock centre line, the supports comprising upstanding frame members supported by the base frame members and a cross-bar extending across an imaginary line extension of the hammock centre line and said cross bars having spaced hammock cord restraining means blocking outward movement of outermost ones of said cords.
13. A hammock stand according to claim 1 wherein the base frame comprises spaced longitudinally extending frame members adapted to be positioned below and on opposite sides of a hammock centre line, the supports comprising upstanding frame members supported by the base frame members and a cross-bar extending across an imaginary line extension of the hammock centre line, the cord anchors comprising respective cross bars located below said respective cord supports and said cords converge to said cord anchors.
14. A hammock stand substantially as described with reference to Figure 1 of the accompanying drawings.
15. A hammock stand substantially as described with reference to Figure 2 of the accompanying drawings.”
Claims as proposed to be amended
As a result of the proposed amendments there are now 26 claims with claim 1 being amended. Claim 13 is appended to claim 1 and claims 14 to 24 are appended to claim 13. Claims 25 and 26 are the omnibus claims which repeat claims 14 and 15 as accepted.
“1. A suspended hammock assembly comprising a hammock supported by a hammock stand comprising a frame assembly having a base frame and spaced hammock cord supports whereby the hammock is strung between the cord supports in operative position, characterised in that the hammock cord supports support the hammock cords in spaced relation, the stand having respective cord anchors spaced from said supports so that the cords pass over the cord supports and are anchored at said anchors and there being cord restraining means blocking outward movement of outermost ones of said cords.
2. A suspended hammock assembly according to claim 1 wherein the base frame comprises spaced longitudinally extending frame members adapted to be positioned below and on opposite sides of a hammock centre line, the supports comprising upstanding frame members supported by the base frame members and a cross-bar extending across an imaginary line extension of the hammock centre line.
3. A hammock stand according to claim 1 wherein the frame assembly when viewed end on has a trapezium shape being widest at the base frame.
4. A suspended hammock assembly according to claim 1 wherein the frame assembly comprises side frame members connected at opposite ends by at least two cross-bars, an upper one of said at least said two cross-bars providing said hammock cord support and a lower one of said cross-bars providing said anchor for hammock cords.
5. A suspended hammock assembly according to claim 1 wherein said cord anchors comprise respective cross bars located below said respective cord supports.
6. A suspended hammock assembly according to claim 1 wherein said cord anchors are at a position below said supports.
7. A suspended hammock assembly according to claim 5 wherein said cord restraining means comprise bilateral upstands to prevent the cords from sliding sideways off the supports.
8. A suspended hammock assembly according to claim 1 wherein said cord anchors comprise respective cross bars located below said respective cord supports, each cross bar having a centrally located anchor point to which the cords converge.
9. A suspended hammock assembly according to claim 1 wherein the base frame comprises spaced longitudinally extending frame members adapted to be positioned below and on opposite sides of a hammock centre line, the supports comprising upstanding frame members supported by the base frame members and a cross-bar extending across an imaginary line extension of the hammock centre line, the frame assembly when viewed end on has a trapezium shape being widest at the base frame.
10. A suspended hammock assembly according to claim 1 wherein the base frame comprises spaced longitudinally extending frame members adapted to be positioned below and on opposite sides of a hammock centre line, the supports comprising crossbar extending across an imaginary line extension of the hammock centre line, lower cross-bars providing said anchors for the hammock cords.
11. A suspended hammock assembly according to claim 1 wherein the base frame comprises spaced longitudinally extending frame members adapted to be positioned below and on opposite sides of a hammock centre line, the supports comprising upstanding frame members supported by the base frame members and a cross-bar extending across an imaginary line extension of the hammock centre line and said cross bars having spaced hammock cord restraining means blocking outward movement of outermost ones of said cords.
12. A suspended hammock assembly according to claim 1 wherein the base frame comprises spaced longitudinally extending frame members adapted to be positioned below and on opposite sides of a hammock centre line, the supports comprising upstanding frame members supported by the base frame members and a cross-bar extending across an imaginary line extension of the hammock centre line, the cord anchors comprising respective cross bars located below said respective cord supports and said cords converge to said cord anchors.
13. A suspended hammock assembly according to claim 1, the hammock having a fabric portion, hammock axis extending longitudinally and cords extending from each 10 end of the fabric portion and, the frame assembly having a base frame and outwardly and axially inclined end frame members having respective hammock cord supports and hammock cord anchors, the hammock cord anchors being located below the respective cord supports whereby the hammock is strung between the supports in operative position with cords at each end of the hammock passing over the cord supports, converging and terminating at the anchors, the cord supports extending across the frame assembly either side of the hammock centre line and having bilateral cord stops to prevent cords sliding off the supports, the cords being supported on the cord supports in folded over the cord supports configuration whereby the cords assume a spaced apart relation supported by but not connected to the supports thereby allowing limited movement of cords along the support as the hammock swings and then the cords converge to a point of securement at the anchors, the base frame comprising elongate longitudinally extending ground engaging frame members extending along opposite sides of the hammock centre line and in contact with a supporting surface and the end frame members including upstanding inverted U-shaped members connected to the base frame members so that the frame assembly is generally trapezium shaped in end view.
14. A suspended hammock assembly according to claim 13, wherein the frame assembly comprises side frame members connected at opposite ends by at least two cross-bars, an upper one of said at least said two cross-bars providing said hammock cord support and a lower one of said cross-bars providing said anchor for the 5 hammock cords.
15. A suspended hammock assembly according to claim 13, wherein said bilateral cord stops on said hammock cord supports have hammock cord restraining means preventing movement of said cords along said cord support,-said bilateral cord stops comprising upstanding extensions of said inverted U-shaped members.
16. A suspended hammock assembly according to claim 13, wherein said cord supports include means for terminating and anchoring said cords at said support, said means for terminating and anchoring said cords comprising a lower cross bar having a centrally located anchor point at which the cords are terminated.
17. A suspended hammock assembly according to claim 13 wherein said suspended hammock assembly includes means for anchoring said cords at a position below said supports.
18. A suspended hammock assembly according to claim 13 wherein bilateral cord stops on said cord supports comprise spaced projections.
19. A suspended hammock assembly according to claim 13 wherein the frame assembly comprises side frame members connected at opposite ends by at least two cross-bars, an upper one of said at least said two cross-bars providing said hammock cord support and a lower one of said cross-bars providing said anchor for the hammock cords, said bilateral cord stops on said hammock cord supports have hammock cord restraining means preventing movement of said cords along said cord support, said bilateral cord stops comprising upstanding extensions of said inverted U-shaped members.
20. A suspended hammock assembly according to claim 13 wherein the frame assembly comprises side frame members connected at opposite ends by at least two cross-bars, an upper one of said at least said two cross-bars providing said hammock cord support and a lower one of said cross-bars providing said anchor for the hammock cords and said bilateral cord stops on said cord supports comprise spaced projections.
21. A suspended hammock assembly according to claim 13 wherein the frame assembly comprises side frame members connected at opposite ends by at least two cross-bars forming said end frame members, an upper one of said at least two cross-bars providing said hammock cord support and a lower one of said cross-bars providing said anchor for the hammock cords, each end frame having a lower portion extending into the base frame and the lower one of said two cross bars being located at the lower portion of said end frame members so that a major portion of said cords are positioned between the upper and lower cross bars.
22. A suspended hammock assembly according to claim 13 wherein the frame assembly comprises side frame members connected at opposite ends by at least two cross-bars, an upper one of said at least said two cross-bars providing said hammock cord support and a lower one of said cross-bars providing said anchor for the hammock cords, said bilateral cord stops on said hammock cord supports have hammock cord restraining means preventing movement of said cords along said cord support, said bilateral cord stops comprising upstanding extensions of said inverted U-shaped members and said frame assembly is longitudinally and laterally symmetrical.
23. A suspended hammock assembly according to claim 13 wherein the frame assembly comprises side frame members connected at opposite ends by at least two cross-bars, an upper one of said at least said two cross-bars providing said hammock cord support and a lower one of said cross-bars providing said anchor for the hammock cords and said bilateral cord stops on said cord supports comprise spaced projections and said frame assembly is longitudinally and laterally symmetrical.
24. A suspended hammock assembly according to claim 13 wherein the frame assembly comprises side frame members connected at opposite ends by at least two cross-bars forming said end frame members, an upper one of said at least two cross-bars providing said hammock cord support and a lower one of said cross-bars providing said anchor for the hammock cords, each end frame having a lower portion extending into the base frame and the lower one of said two cross bars being located at the lower portion of said end frame members so that a major portion of said cords are positioned between the upper and lower cross bars and said frame assembly is longitudinally and laterally symmetrical.
25. A hammock stand substantially as described with reference to Figure 1 of the accompanying drawings.”
26. A hammock stand substantially as described with reference to Figure 2 of the accompanying drawings.
THE EVIDENCE-SECTION 59 OPPOSITION

Evidence–in-support of the s59 opposition consisted of the following five statutory declarations;
Jonathan Charles Albert Noble, the managing director of The Mexican Hammock Co, filed his first statutory declaration dated 25 May 2004 accompanied with 7 exhibits, JACN1 to JACN7.
JACN1 is a copy of a report from Noble’s patent attorney
JACN2 is a copy of the patent application in suit
JACN3 is a copy of the accepted patent application in suit
JACN4 is a copy of the statement of grounds and particulars
JACN5 contains copies of relevant patent specifications that are referred to in the statement of grounds and particulars
JACN6 is a copy of a photograph of an alleged widely known hammock
JACN7 are copies of a number of explanatory sketches relating to hammocks.
Jonathan Charles Albert Noble filed his second statutory declaration dated 20 September 2004 with accompanying exhibits JACN1 and JACN2.
JACN1 contains a series of photographs dated September 1999 relating to a shipping container.
JACN2 contains documentary evidence pertaining to the shipping container of JACN1.
Peter Gilmore Simmonds, a director of Choice Gear Pty Ltd, filed a statutory declaration dated 20 September 2004 with accompanying exhibit PGS1 which contained copies of the drawings from US 3315281 and US 5659906.
Garry Adrian Wilson, patent attorney, filed a statutory declaration on 20 August 2004.
As previously mentioned, Lyons did not file any evidence-in-answer.
EVIDENCE-S104 OPPOSITION
Evidence-in-support of the S104 opposition consisted solely of a declaration by Garry Adrian Wilson dated 7 April 2006.
DECISION
My general approach will be to consider the specification as accepted in the light of the evidence and the submissions of the parties. I will then decide the same issues in respect of the claims as proposed to be amended. Finally, I will consider the submissions made under S104 regarding allowability of the proposed amendments.
THE SPECIFICATION AS ACCEPTED
The invention relates to a hammock stand which comprises a frame assembly having a base frame of two longitudinal frame members with hammock support means in the form of an inverted U shaped frame which is connected to the longitudinal frame members. A hammock is supported by the support means. The cords of the hammock are supported in spaced relation on cross bars of the hammock support means and are anchored at cord anchors. The cord anchors are spaced from the cord supports in such a manner that the cords pass over the cord supports and are anchored at the cord anchors.
The specification refers to prior art hammocks and makes the observation that prior art hammocks support a hammock from each end point of cord convergence. The specification also refers to the prior art that was raised by the examiner during examination. This art disclosed hammock stands in which a cross bar is used to fix the outer points of the hammock. In these examples, the cross bar constrains the ends of the hammock cords in parallel spaced relation which is fundamentally different from cord convergence at that point.
In the abstract and at page 4 lines 14 to 17 of the specification, the cords are stated as being supported in spaced relation on cross bars of the hammock support means, while in claim 1 as accepted and in the accompanying consistory statement, the hammock cord supports are adapted to support the hammock cords in spaced relation. It seems to me to be possible to make a distinction between these expressions. The former goes to the spacing of the cords on the cross bars whereas the latter goes towards the spacing between the crossbars.
During the hearing, Lyons submitted that “in spaced relation” referred to the spacing between the hammock support means and not to the spacing between the cords themselves. Noble submitted that this interpretation had no support in the specification as filed and as accepted.
My view is that the prior art referred to by Lyons and from the words used in the specification clearly lead the reader to think that providing spacing between the cords at each hammock support means is a characterising feature of the invention. The drawings, for example, illustrate the cords as being spaced on the cross bars.
While it seems a trite construction that a hammock is supported at two ends, the words in the claim are capable of this construction. While this meaning goes against the whole tenor of the invention of the specification I cannot find any reason for reading the words of the claim as excluding this construction. The rules of construction for patent specifications are neatly summarised by Sheppard J in Décor Corp v Dart Industries 13 IPR 385 at 400 which has been endorsed by the Full Federal Court in Pfizer Overseas Pharmaceuticals v Eli Lilly [2005] FCAFC 224. Applying these rules I am led to a construction in which the words of the claims are to be construed in a broad manner. Therefore, the hammock cord supports which are adapted to support the hammock cords in spaced relation as currently defined in claim 1 are not restricted to supporting the hammock cords on the hammock support means in a spaced relation but must also include the spacing between the cord supports.
Consequently, it is apparent that claim 1 and appended claims are not fairly based on the matter described in the specification because they fail to define the characterising feature of the invention, namely that the hammock cords are supported in spaced relation on the hammock support means. In this regard I consider that the claims travel beyond the subject matter of the invention described in the specification; Olin v Super Cartridge (1977) 180 CLR 236 quoted with approval in Lockwood v Doric [2004] HCA 58.
NOVELTY
In the discussion below it is emphasised that the claims as accepted relate to a hammock stand per se to which, in use, a hammock is supported. Consequently, if the stands of the citations are capable of supporting a hammock in a way that is claimed then those claims will lack novelty as “each and every one of the essential integers” has been taken: Rodi and Wienenberger AG v Henry Showell Ltd, (1969) RPC 367 at page 391.
In considering novelty I will first consider those citations referred to in the Lyons statutory declaration of 19 January 2007. I will, then, review the remaining citations raised in the evidence.
US 210037 (HOWE) 19 November 1878
This citation discloses an improved folding hammock supporter. The hammock supporter consists of a base section, two inclined side sections which are stiffened by lateral rods (at the lower and uppers ends respectively) and are pivoted to the supporting legs so that the hammock supporter can be folded. The structure of the hammock supporter as described is identical to the hammock stand of the application. I note that Lyons in his declaration of 19 January 2007 admits that the frame construction of the HOWE patent is “similar” to the hammock stand of the application.
The specification describes how a hammock is supported in the following terms:
“…the hammock being attached to the upper cross-pieces of the side sections, and the supporting-strands extended over the same and tied to the lower cross-rods of the side sections…”
Significantly the strands “pass” over the lateral rods at the top of the hammock and are anchored at a location on the lower end of the side section where the lower lateral support rods are located.
Lyons has made a number of comments in relation to this document. He contends that the hammock of the Howe patent is for a sling bed (which he states is a bed type of hammock) or a sling type of hammock. From the evidence and specification as proposed to be amended this type of hammock is also called an “American Hammock”. Lyons also contends that the hammock support of the citation would not support a hammock that was strung diagonally. While this may be a distinguishing feature between the invention of the application and the claimed invention, there is no reference, either direct or implied, that the claims are restricted in this manner. Neither is there any disclosure in the specification as accepted or in any evidence before me that the HOWE document should be construed so as to exclude the type of hammock defined in the currently accepted application. As noted above, it is the features of the stand itself that are critical to the issue of novelty and not the type of hammock that is suspended therein.
The issue with the citation appears to lie in the nature of the “attachment” of the cords to the upper lateral supports. Lyons states that the cords are free to move on the uprights in the current application whereas the cords in the HOWE document are attached at the upper lateral supports and are subsequently merely tied off at the lower lateral support. There is some merit in this submission. However, the words of claim 1 that the “hammock cord supports are adapted to support hammock cords in spaced relation” does not necessarily exclude the type of anchoring that Lyons claims for the HOWE patent as the expression “adapted to support” could include attachment. There is nothing in the specification that would seem to exclude this construction. Indeed, figure 3 of the application in suit discloses cords terminating at the cross-bars and being restrained there. While there is no omnibus claim to figure 3 (omnibus claims 14 and 15 relate to figures 1 and 2), this doesn’t necessarily negate a construction in which the hammock cords are attached at the cross-bars. Consequently reading the specification as a whole there is no suggestion that the cords need not have an attachment at the cross-bars in an allegedly similar fashion to the HOWE patent. Lyons contends that the use of “restraining means” means “that the cords are supported but unattached”. However this term is not a feature of the claims as accepted. As it stands the implication that can be drawn from Lyons’ statement is that in the claims as accepted, cord support can include cord attachment.
Consequently, the subject matter of claims 1 to 4, 6, 7, 9 to 11, 13, and 15 are disclosed.
The drawing in figure 2 of the citation shows that the lateral supports lie inboard of the side section. The HOWE patent seems to inherently disclose the functionality of the restraining means (as defined in claims 5, 8, 12 and 14) and hence discloses the same potential functionality. Consequently claims 5 and 8, 12 and 14 are also disclosed in the HOWE patent.
US 201074 (WHEELER) 5 March 1878
This citation discloses a two frame assembly with the cords being anchored into the ground. While WHEELER is superficially attractive, it does not disclose the frame with its respective cord anchors.
US 292204 (COOK) 22 January 1884
This document discloses a portable hammock support in which the cords are bunched together and supported in a hole in the support means and are tied off at a lower point.
The specification states:
“The hammock may then be swung or attached to the frame by passing the loops or eyes thereof through the holes h h in the posts A A and connecting the cords i i to the staples or fastenings h h.”
Lyons submits that there is no possibility of the cords individually moving and so there is no outward movement that would be restrained by the “restraining means”. However, the cords are by necessity restrained by the holes in the posts.
The citation discloses the cords as passing through the vertical support before being anchored. As a necessary function, the base of the slot would perform the function of passing over. Hence, claims 1, 5 and 7 as accepted are clearly disclosed and are not novel as a result.
US 498542 (FELLOWS) 30 May 1893
This document is not relevant for the issue of novelty or inventive step as there is no disclosure of the cords passing over the cord supports.
US 816340 (KNOERNSCHILD) 27 March 1906
This citation disclosed a hammock supporting frame in which the hammock is supported by a collapsible and portable frame.
The hammock, according to Lyons, is of the bed type. In the citation, a spreader bar is used which is then connected to the hammock frame.
“The crossbars 16 of the respective U shaped standards 3 and 12 are each provided with two hooks 17 17, located at a distance apart on each bar and adapted to take therein rings 18 18 on the outer ends of two groups to the crossbars or stretchers of the hammock in the ends of the fabric thereof.”
This document clearly discloses supporting of the hammock cords in spaced relation. Indeed figure 11 of the citation shows two sets of cords which are gathered together and attached to the rings (18, 18). While it could be argued that the rings function both as cord supports (in conjunction with the hooks) and as cord anchors, the claim requires the cord anchors to be spaced from the cord supports. Consequently, the claims are novel over the disclosures in this citation.
US 856315 (THOMSON) 11 June 1907
This citation relates to a portable stretcher, a couch hammock or chair and is characterised by the cloth of the hammock being secured to the base frame and which passes through slots in the supporting frames. While Lyons argued that the cords and their relationship to the frame are not disclosed, the citation discloses that the cloth is supported in spaced relation and that the cloth is passed through slots in the supporting frames and that the cloth is anchored to the base frame.
While a cloth may be considered as a disclosure of the hammock, it is not a disclosure of hammock cords. Consequently, while this document does not render the claims as lacking novelty it would solve the problem disclosed in the current citation and would be a document that would have been ascertained and considered as relevant. Consequently, claims 1 to 11, 13 and 15 lack an inventive step in light of this document.
US 3321780 (MORRIS) 30 May 1967
The citation is directed to a hammock in which a plurality of individual strings (27) is attached to triangular rings (26). While it can be argued that the groups of individual strings are supported in spaced relation both intra and inter the ends, there is no disclosure of the support anchors spaced from the cord supports. Consequently, the claims are novel over this reference.
US 5729845 (HSU) 24 March 1998
A hammock stand is disclosed in which the hammock cords pass through a spreader bar (31, 32). In a similar manner to MORRIS, this citation does not disclose the feature of the support anchors being spaced from the cord supports.
THE REMAINING CITATIONS
A number of other citations (listed below) were raised in the evidence which I will now discuss.
US 142327 (CRAFT) 2 September 1873
This citation describes a hammock lounge in which the ends of the cords of the hammock first pass through end pieces before been gathered together and attached to a cross bar. The frame is generally of the same shape as that of the invention. However, CRAFT dose not disclose the cord anchors and hence the claims are novel in view of this document.
US 271767 (BATES) 6 February 1883
This citation discloses the use of a spreader stick for hammocks. However there is no disclosure of the frame as defined and hence this citation is not relevant for the issue of novelty.
GB 421191 (PICKFORD) 17 December 1934
The citation relates generally to a frame of similar structure to that of the invention. It discloses two crossbars (17) on which a stud (18) is mounted for connection to the end of the hammock. While there is no specific disclosure of the type of hammock that would be supported in this stand, it seems reasonable for the hammock to be tied to the hook or studs. However, this citation is not a relevant document as it fails to disclose the feature of the cords passing over the cord supports and supported at the cord anchors.
US 2569596 (ANDEREGG) 2 October 1951
This citation discloses a stand for a hammock and is similar to MORRIS. The claims are novel over this reference.
US 4901381 (SWERGOLD) 20 February 1990
This citation discloses support apparatus for a hammock. The support apparatus comprises a pair of generally triangular shaped support members (12, 14) which are anchored (13) in the ground by a tether means (30) which is provided on opposite sides of the hammock. The tether means passes over the frame member before been anchored into the ground. There is no disclosure of the stand having cord anchors and the stand is not similar to that of the invention. The claims are novel over this reference.
US 4925138 (RAWLINS) 15 May 1990
This citation discloses a collapsible hammock stand with two cross bars (7) having pairs of extending loops (30) for attachment to a conventional hammock. The claims are novel over this reference.
US 5659906 (NICKELL) 26 August 1997
This citation discloses a sling hammock bed suspended by four ropes. The claims are novel over this reference.
PHOTOGRAPHS: NOBLE DECLARATION
In Noble’s second declaration, he referred to the photographs of a hammock slung beneath a truck. The photographs show that the cords pass over the side rails of the truck which are then tied below the side rails onto a convenient part of the truck. While this discloses the supporting and anchoring aspects of the hammock, it is questionable whether it discloses the hammock stand per se. Claim 1 in its broadest sense requires a stand and a frame assembly. While the truck can support a hammock, it is not a disclosure of a stand having a frame assembly. Consequently, the claims are novel over this reference.
OBVIOUSNESS
A number of arguments were presented regarding obviousness. These arguments related to the general tying of ropes, to the use of a hammock suspended beneath a truck and to comments about a commercial product.
TYING OF ROPES
Noble presented a number of arguments on the question of obviousness. These submissions generally related to more general propositions about tying of ropes and cords to suitable supports as evidenced in exhibit JACN7. However, it does not seem to me that a person skilled in the art would directly and without difficulty arrive at the claimed solution from this base.
TRUCK PHOTOGRAPHS
As previously noted the example of a hammock tied off under a tray of a truck was put into evidence. Noble stated that hammock cords when they pass over a support will necessarily form hammock cords in spaced relation. Therefore, Noble argued that the tying of the hammock cords to part of the frame would be obvious in view of the tying of a hammock to the frame of a truck. However, I am unable see how general knowledge of tying a hammock “in the wild” is relevant to the issue of a hammock stand per se. Even if it could be shown that suspending a hammock beneath a truck is common general knowledge in the art, it seems to me the art for the purposes of obviousness lies in the art of hammock stands. It does not seem to me that a person skilled in the art would directly and without difficulty arrive at the claimed solution from this base.
For the purposes of Section 7 of the Patents Act, the photograph can be treated as a single piece of prior art information. However, it is doubtful that it could reasonably be expected to have been ascertained, understood, regarded as relevant as the photo was not in the public domain as it was taken and apparently remained in the property of Noble. Presumably, Noble was arguing that the photo represents an aspect of common general knowledge in the art of hammock supporting and I assume Noble is pressing that the photo represents part of the art of tying a hammock to any convenient support like trees or posts, for example. However, the invention relates primarily to a stand for a hammock with the stand functioning as the supporting means.
SIMMONDS DECLARATION
Peter Simmonds is a director of Choice Gear. The company imports handicrafts from Central and South America and has a particular focus on hammocks. Mr Simmonds states that he keeps himself up to date with trade catalogues, overseas trips, and what is available in stores. While he has not paid any attention to patent literature, he seems to be versed in the art in Australia.

Mr Simmonds made a reference to a K-Mart hammock, which seems to be of a bed type structure. However, there is insufficient evidence on the structure of this hammock for me to determine what features defined the K-Mart hammock. Mr Simmonds also referred to two US patents (MORRIS and NICKELL) which he states could with “some degree of design taking place” produce the hammock stand of the claims. I am not convinced. There is simply no evidence to suggest that the “degree” of design work was obvious to a person skilled in the art.
SUMMARY OF S59 ACTION AGAINST THE ACCEPTED SPECIFICATION
I have found that claims 1 to 15 lack fair basis and that claims 1 to 15 are not novel in view of HOWE. I have also found that claims 1, 5 and 7 lack novelty in view of COOK. Additionally, I have found that claims 1 to 11, 13 and 15 lack an inventive step in view of THOMSON.
SECTION 104
Lyons has proposed changes to the description, claims and had proposed to delete figure 3. With regard to the description, there are a number of additional paragraphs explaining the difference between a “Mexican” hammock and an “American” hammock.
“There are two basic hammock configurations that are well known. A “Mexican” hammock is conventionally strung between two points and the user spreads the hammock and lies diagonally across the hammock and the hammock is able to swing. In an “American” hammock cords do not converge to a point as in the Mexican but are supported, usually by a spacer bar, so the hammock is retained in a generally flat configuration. An example of the latter configuration is in US 5,729,845, US 3,321,780 Figure 1 and 2 and US 816,340.”
Lyons compares the different style of hammocks and submits that the hammock of the invention is a hybrid possessing elements of both styles of hammocks.
“The present invention utilises a Mexican hammock on a frame whereby the cords pass over a support and the ends of the cords are anchored below the support so that effectively there is formed a form of hybrid hammock between the Mexican and American forms which results in a compact assembly where the cords are prevented from moving off the support, in the preferred embodiment by cord stops. However, the cords are still mobile enough to allow use in the conventional Mexican style, where the user lays diagonally and is able to swing albeit in a more limited manner. In the invention the cords remain mobile at the fold over on the supports and converge to the anchor. This mobility allows enjoyment as a Mexican hammock. The arrangement of the cords, cord stops, supports and the dimension of the hammock are chosen to afford an optimal assembly for comfort and use.”
As an aside it would appear that Lyons has inadvertently deleted from page 4 of the description the following paragraph relating to the hammock cord restraining means;
“Preferably, the hammock cord supports have hammock cord restraining means preventing movement of said cords along said support.”
However, the following which seems to relate to the proposed deleted figure 3 construction is retained;
“Preferably, said cord supports include means for terminating and anchoring said cords at said support.”
The proposed changes to the description also include consistory clauses for claim 1 and dependant claim 13.
And finally there is a proposed change to the last paragraph of the description which relates to how the cords behave.
“For example, the hammock cords will adopt a position on the cross-bar to which they would naturally fall according to the dimensions of the cross-bar, cord thickness, spacing between the cross-bar and anchors and the length of the cords.”
Noble has made a number of comments about these changes and additions which I will address when I consider the S104 allowability issues.
THE SPECIFICATION AS PROPOSED TO BE AMENDED
Lyons proposed that claim 1 be amended as follows.
1. A suspended hammock assembly [stand] comprising a hammock supported by a hammock stand comprising a frame assembly having a base frame and spaced hammock cord supports whereby [a] the hammock [can be] is strung between the cord supports in operative position, characterised in that the hammock cord supports [are adapted to] support the hammock cords in spaced relation, the stand having respective cord anchors spaced from said supports so that the cords pass over the cord supports and are anchored at said anchors and there being cord restraining means blocking outward movement of outermost ones of said cords.
[deleted text], added text
There have been a number of changes to the claimed definition of the invention. A hammock stand is now redefined as a suspended hammock assembly comprising the stand and the suspended hammock. The assembly has been further restricted to including a cord restraining means. However, I note that no location is specified in claim 1 for the cord restraining means.
Claims 13 to 24 are new. In these claims the hammock is clearly defined as having a fabric portion with cords extending from the portion. The relationship between the cords, cord supports and cord anchors is more specific and the cords are now stated as being mobile so that the hammock can swing and the cords can have a limited movement.
NOVELTY – CLAIMS AS PROPOSED TO BE AMENDED
While the proposed claims, apart from the omnibus claims, define a combination of the stand and hammock, claims 1 to 12 do not specify the type of hammock under consideration. Claims 1 to 12 are not limited by the feature of the hammock having a fabric portion, a hammock axis that extends longitudinally, and cords extending from each end of the fabric portion (as currently defined in claim 13). Claims 1 to 12 make no reference to the construction of the hammock, they merely define that the hammock possesses cord supports and that it is suspended. Consequently, a broad construction needs to be applied to the hammock assembly of claims 1 to 12. In claim 1, there is an implied restriction that the cords are mobile as there are cord restraining means that block outward movement of the outermost cords.
As discussed above in relation to the accepted claims 5, 8, 12 and 14, HOWE inherently discloses cord restraining means. Claims 2 to 12 are similar in construction to claims 2 to 4, 6 to 13 as accepted and the same considerations apply. Consequently, claims 1 to 12 lack novelty in view of HOWE.
COOK is directed to a suspended assembly in which the cords are confined in the through hole in the upright posts. The issue is whether the feature of amended claim 1, “there being cord restraining means blocking outward movement of outermost ones of said cords”, is disclosed in COOK. In the citation, outward movement of all of the cords is restrained and hence the outermost ones of the cords must necessarily be restrained. Consequently, this feature is disclosed and claims 1 and 6 lack novelty.
In THOMSON the outermost edges of the cloth are restrained by the slot through which the cloth passes. I would consider that the lack of inventive step similarly applies to claims 1 to 12 and 26.
In relation to claims 13 to 24, the citations lack relevance as they fail to disclose the specific relationship between the cords supports and cord anchors such that a limited movement of cords is possible. Additionally, the nature of the hammocks in HOWE and THOMSON is such that they relate more to sling beds rather than to a hammock comprising a fabric portion with cords extending from each end of the fabric portion.
In relation to the omnibus claims 25 and 26 which relate to the hammock stand and not to the assembly of a hammock stand with a hammock attached, the issues identified with the existing omnibus claims still exist. Consequently, claim 25 lacks novelty and inventive step over HOWE and claim 26 does not possess an inventive step in view of THOMSON for the reasons already stated.
Claims 1 to 12 suffer the same fair basis issue as was found with the accepted claims. However, as this issue pertained to the claims as accepted, they did not arise as a result of the amendments. Hence their allowability is not adversely affected.
In relation to the allegation of obviousness of claims 1 to 26, I have already considered the evidence with regard to these claims and the accepted specification. I consider that none of the evidence filed in the opposition is relevant.
SUMMARY OF S104 ACTION AGAINST THE SPECIFICATION AS PROPOSED TO BE AMENDED
I have found that claims 1 to 12 and 25 are not novel in view of HOWE, that claims 1 and 6 lack novelty over COOK and that claims 1 to 12 and 26 lack an inventive step over THOMSON. Claims 13 to 24 are novel and possess an inventive step over the cited references. Furthermore none of the evidence appears relevant to the issue of obviousness of claims 13 to 24. I have also found that claim 1 to 12 are not fairly based for the same reason as the claims as accepted.
S104 ISSUES
Section 104 provides an applicant with the opportunity to amend the complete specification and section 104(5) provides that an amendment is not allowable if it is not allowable under s 102.
S102 also provides that an amendment is not allowable if as a result of the amendment, the specification would claim matter not in substance disclosed in the specification as filed,
S102 also provides that if after the relevant time (i.e. after the date of acceptance), as a result of the amendment:
(a) a claim of the specification would not in substance fall within the scope of the claims of the specification before amendment; or
(b) the specification would not comply with subsection 40(2) or (3).
then the amendment is not allowable.
In his submissions Noble alleged that all grounds of non allowability apply. Specifically, Noble alleged that the following changes occurred as a result of the proposed amendments:
1. a change in the definition of the invention from a hammock stand to a suspended hammock assembly comprising the combination of a hammock supported by a hammock stand renders claim 1 unclear as it implies that the hammock assembly is, itself, suspended.
2. the change in scope from a stand per se to an assembly of a hammock and stand renders the claims as having a differing scope which falls outside of the scope of the claims before amendment.
3. the deletion of the words “adapted” in relation to the hammock cord supports alters the scope of the claimed invention as adapted implies some adaptation of the hammock cord supports to support the cords is a spaced relation.
4. claim 1 now includes the features of original claim 5 pertaining to cord restraining means blocking outward movement of the cords.
5. claims 13 to 24 refer to the mobility of the cords which is a feature wholly absent from the specification as accepted.
6. there were changes proposed to the description that introduced the distinction between the “American” and “Mexican” hammocks, that introduced consistory statement regarding claims 1 and 13 and that added to the description on page 8 matter relating to cord behaviour.
I shall deal with these issues in the nominated order above and consider where appropriate Lyons’s submissions on the matter.
Amendment 1
In my view, there is no lack of clarity through the introduction of this amendment. The claim is directed towards a combination of a stand and a hammock. It is clear from a reading of the specification that the hammock is suspended within the stand and the construction argued by Noble does not introduce any ambiguity.
Amendment 2
It follows from what I have said above that there is no widening of the scope of claim 1. In my view, claim 1 has effectively been narrowed to a combination claim.
Amendment 3
It is argued that the change from hammock cord supports which are adapted to support the hammock to the hammock cord supports which support the hammock is a widening one. Specifically it was argued that the expression “adapted” placed restrictions on the cord supports in that there is implied some adaptation that will allow the cords to be supported in a spaced relation. At the hearing, Noble suggested that the support could be grooved so that the cords maintain the defined relation. However, this is embellishing the meaning of the term with a nuance that is not supported by the description. As the word is currently used in the specification “adapted” simply means that the “cord supports” function as a support for the cords.
Amendment 4
Noble conceded that this amendment was allowable. I agree as claim 1 has been narrowed to include the features of claim 5.
Amendment 5
Noble argues that claims 13 to 24 claim new matter. In particular, Noble alleged that the concept of the cords being mobile to the extent that they move as the hammock swings is a feature which has no basis in the accepted specification.
While I agree that there was no discussion of the movement of the cords in the accepted specification, I am not in agreement that this means that the introduction of an explanation renders the amendments as being not allowable. I agree with Noble that there is clearly no description of how the cords move when the hammock is used and there is no problem identified with the prior art that relates to cord movements. However, what can be inferred from the description is that cords must be mobile otherwise the restraining means or bilateral upstands that lock outward movement of the outermost cords would be of no effect. A purposive construction rather than a purely literal construction is preferred to be applied: Catnic Components Limited v Hill and Smith Limited, (1981) FSR 60. I think, on the basis of the discussion of the evidence that it is inherent in the art that cords move and that it is relatively easy to infer that the function of the bilateral upstands is to retain the cords on the cord support.
In determining whether as a result of amendment a claim of the specification claims matter “in substance disclosed” or not, the test for fair basis of a claim can be employed. Thus, for an amended claim to claim matter in substance disclosed in the specification as filed, then in effect that claim must also be fairly based on the specification as filed.
“In RGC Mineral Sands Pty Ltd v Wimmera Industrial Minerals Pty Ltd 42 IPR 353, Burchett J accepted the principle of “a real and reasonably clear disclosure” set out in CCom Pty Ltd v Jiejing Pty Ltd 28 IPR 481 for testing a proposed amended claim against the original disclosure.” Patent Manual of practice & Procedures – 2.23.8.2
The question to be answered is whether there is a “real and reasonably clear disclosure” of the mobility of the cords and from Ethyl Corporation’s Patent (1972) RPC 169 “disclosed in substance” also includes impliedly disclosed. Impliedly disclosed in this context can be that which would be implied by the expert reader. The question therefore reduces to whether an expert reader of the specification would regard the mobility of the cords as disclosed.

100. In my view, claim 13 as proposed defines the movement and inter-connection of the cords with the functionality of swinging of the hammock in a clear and functional way. The amendment is allowable.
101. Claim 13, which is stated as been appended to claim 1, refers to “bilateral cord stops” whose function is to prevent cords sliding off the supports, which prima facie, is different to the “cord restraining means” of claim 1. While these expressions differ, the expression in claim 13 does not appear to extend the scope of the claim and any perceived conflict can be resolved in favour of these expressions referring to the same functionality.
Amendment 6
102. As conceded by Noble, the amendments to the description are clearly allowable.
SUMMARY OF S104 OPPOSITION
103. In summary, the amendments to the specification are allowable under s104.
CONCLUSION
104. In relation to the S59 opposition, I have found that Noble has been successful against the claims as accepted and in part successful with the claims as proposed to be amended. And while I had found that the proposed amendments are allowable the current proposed amendments, do not overcome the novelty and inventive step objections. Consequently I allow the amendments. As there is patentable subject matter and subject to any appeal I allow Lyons 60 days from the date of this decision to file such amendments to overcome my objections.
COSTS
105. Costs generally follow the event. While Nobel was successful in it opposition under S59 it was not successful in its opposition to the proposed amendments. Furthermore, the citations that gave rise to novelty and inventive step issues were raised only after the substantive hearing had occurred and they were identified in the filed S45(3) results. For these reasons it is not appropriate to make an award of costs. Consequently, each party is to bear its own costs in the matter.
G.M.Cox
Delegate of the Commissioner of Patents
4 May 2007
Patent attorneys for the applicant : Intelpro, Brisbane, Qld
Patent attorneys for the opponent : Garry Wilson Patent and Trade Mark Attorney, Sydney, NSW