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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Beaumont Gregory Lyons v Jonathon Charles Albert Noble and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2007] APO 17
Decision Date: 4 May 2007

CaseChat Overview and Summary

This case involved an opposition under sections 59 and 104 of the Patents Act 1990 to a patent application for a hammock stand by Jonathan Charles Albert Noble. The patent applicant, Beaumont Gregory Lyons, filed an application for a patent for a hammock stand that comprises 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. The patent application was accepted and advertised on 20 February 2003. Noble filed an opposition on 20 May 2003, arguing that the claims of the patent lacked fair basis, novelty, and inventive step. The hearing on the opposition was set down for 7 July 2006 at Canberra. Both parties agreed to a joint hearing on the oppositions. The court found that claims 1 to 15 of the accepted specification lacked fair basis and novelty in view of HOWE. Additionally, claims 1, 5 and 7 lacked novelty in view of COOK. Claims 1 to 11, 13 and 15 lacked an inventive step in view of THOMSON. The court found that the proposed amendments were allowable under section 104 of the Patents Act 1990, but that the current proposed amendments did not overcome the novelty and inventive step objections. The court allowed Lyons 60 days from the date of the decision to file such amendments to overcome the objections. Costs were not awarded as Noble was not successful in its opposition to the proposed amendments.

Orders