Bragel International Inc v Renee Qin and Lifeglo Pty Ltd - [2005] APO 42

ABSTRACTS OF DECISIONS
DECISION OF A DELEGATE OF THE COMMISSIONER OF PATENTS
Application : No. 2003249034 in the name of BRAGEL INTERNATIONAL INC.

Title: An Improved Backless, Strapless Bra

Action: Requests for an extension of time to serve evidence in support of an opposition by RENEE QIN and LIFEGLO PTY LTD

Decision: Issued 28 September 2005 .
Abstract

Found that both opponents had provided insufficient explanation for the delay in filing evidence which would support a case justifying the requested extensions of time. Regarding the public interest in both instances the nature and significance of the evidence sought to be adduced would clearly favour the grant of extensions of time. In the matter of the private interests of the parties, the opponents’ interests were best served by the grant of extensions, whereas the applicant’s interests were best served by a refusal of the extensions. The effect of any delay on the efficient and orderly administration of the Patent Office lay against allowing the extensions, but this was not considered to be significant.
Finally after due consideration of all relevant matters, the granting of an extension of time to 18 November 2005 to the opponents to file evidence in support was found to be appropriate in all the circumstances.
In the matter of the request for extension of time I had found that both opponents had not provided a proper explanation for the delay in filing of the complete evidence in support. If adequate explanations had been provided for the delay, there was every possibility that the applicant would not have opposed the requests for extension to file evidence in support. However I had determined for both requests that the grant of an extension was justified in all the circumstances. Hence, considering all the circumstances, costs were awarded in favour of the applicant Bragel International Inc. and against the opponents Renee Qin and Lifeglo Pty Ltd.
PATENTS ACT 1990
DECISION OF A DELEGATE OF THE COMMISSIONER OF PATENTS
Re:Patent Application No. 2003249034 by Bragel International Inc., and requests to extend the time for serving evidence in support of the opposition by Renee Qin and Lifeglo Pty Ltd.

BACKGROUND

Patent Application No. 2003249034 by Bragel International Inc. (Bragel) was advertised accepted on 18 November 2004. Notices of opposition were filed by Renee Qin (Qin–first opponent) and Lifeglo Pty Ltd (Lifeglo–second opponent) respectively on 18 February 2005. Both opponents filed statements of grounds and particulars on 18 May 2005. The time for serving evidence in support expired on 18 August 2005. On 17 and 18 August 2005 Lifeglo and Qin respectively sought a three month extension of time to file evidence in support of their oppositions. The applicant Bragel opposed both applications for extension of time to serve evidence in support.
The requests for extension of time were heard in Canberra on 14 September 2005. Bragel was represented by Benjamin Fitzpatrick of counsel instructed by Rosie Stramandinoli, patent attorney of Griffith Hack, Melbourne who appeared via telephone. Lifeglo was represented by J. Roger Greene assisted by Amy Sawyer, both patent attorneys of Watermark, Melbourne who also appeared via telephone. Qin did not appear at the hearing but filed written submissions via her attorney, Fisher Adams Kelly, Brisbane.
Applications for extension of time
The Qin application gave the following reasons for seeking an extension of time:
“Further time is required to complete the preparation and service of the opponent’s Evidence-in-Support.
In addition, the opponent has just become aware of further prior art documents, and time is required to assess their relevance and, if necessary, amend the Statement of Grounds & Particulars and obtain and serve evidence in relation to these documents.”
The Lifeglo application gave the following reasons for seeking an extension of time:
“A first statutory declaration in support of the opposition has been prepared, filed and served. Further time is required to locate an expert witness and to complete evidence in support.”
Submissions by the parties
The three parties provided written submissions and two of those parties also made oral submissions via telephone at the hearing. I shall refer to those submissions wherever relevant in my decision.
DECISION
The law on extensions of time
The time for serving evidence in support of an opposition is 3 months from the date of serving the statement of grounds and particulars (regulation 5.8). This time can be extended under regulation 5.10(2):
(2)       The Commissioner may:
(a)       on the application of a party in the approved form; and
(b)       on such reasonable terms (if any) as the Commissioner specifies:
extend the time within which the party may take a step prescribed in this Chapter, not being a step that is taken under regulation 5.3 or paragraph 5.4(1)(a).
This provision must be read in conjunction with regulation 5.10(5):
(5)       The Commissioner must not give a direction under subregulation (1) or grant an application under subregulation (2) or (4) unless the Commissioner:
(a)if he or she proposes to grant an application by a party - is reasonably satisfied that the other party has been notified of the application; and
(b)if he or she proposes to act on his own motion - ensures that the parties are notified of the proposed action; and
(c)       in either case:
(i)gives the parties a reasonable opportunity to make representations concerning the application or proposed action; and
(ii)is reasonably satisfied that a direction, and extension of time or the serving of evidence is appropriate in all the circumstances.
Consequently, it is a prerequisite to any decision that the Commissioner must ensure that the other party has been notified, and that both parties have had the opportunity to make representations. In the present case the other parties have been notified, and all parties have been given the opportunity to make representations.
An extension can only be granted if the Commissioner is reasonably satisfied that it is appropriate. In exercising this discretion I am guided by the decisions of Burchett J in Ferocem Pty Ltd v Commissioner of Patents (1994) AIPC 91-057; 28 IPR 243, Sackville J in A Goninan & Co Ltd v Commissioner of Patents (1997) AIPC 91-330; 38 IPR 213 and Goldberg J in National Starch & Chemical Co v Commissioner of Patents (2001) AIPC 91-697, 50 IPR 398. The general principles that flow from these decisions are:
a)The power is discretionary:    Regulation 5.10 confers a broad discretion, which cannot be reduced to imperative compliance with particular requirements. It is necessary to give genuine and proper consideration to all relevant considerations. (Ferocem at AIPC 38,208; IPR 247-8, Goninan at AIPC 39,434; IPR 220)
b)Explanation of delay: The reasons why the evidence was not served earlier are a relevant consideration, but a satisfactory explanation is not a mandatory requirement. (Ferocem at AIPC 38,207-8; IPR 247)
c)The public interest:     The public interest in determining a serious opposition on its merits is a relevant consideration. (Goninan at AIPC 39,435-6; IPR 222)
*         In order to do this, it is necessary for the Commissioner to form a view as to the nature of the evidence that it is sought to adduce, and the significance of that evidence for the opposition proceedings. (Goninan at AIPC 39,438; IPR 225-6)
*         The significance of the evidence is assessed having regard to any relevant material available, not just the evidence itself. (National Starch at [33])
*         The public interest is not protected merely because some evidence has already been served. (Goninan at AIPC 39,438; IPR 225)
d)The interests of the party seeking the exercise of discretion: The interests of the party seeking the exercise of discretion are a relevant consideration. (Ferocem at AIPC 38,208; IPR 247)
e)The interests of other parties: It is relevant to consider the disadvantage to the other party of delays in determining the opposition, and the effect of delays on the efficient and orderly administration of the Patents Office. (Ferocem at AIPC 38,208; IPR 247, Goninan at AIPC 39,436; IPR 222)
As there are two opponents I shall consider each application separately against the principles set out above.
First Opponent – Renee Qin
Explanation of the delay
Qin raised several matters in their submissions and listed three factors which they submitted led to the delay in filing the opponent’s evidence, namely:
1.   The delay in preparing the Opponent’s evidence has primarily been due to the difficulty in establishing the appropriate expert witness, or witnesses who can declare as to the knowledge of the art at the relevant date.
2.   The delay in preparation has been further exacerbated due to the Opponent’s Patent Attorneys moving premises, which required files to be stored and being non-accessible for a short period of time.
3.   Furthermore, as stated in the extension of time application, the Opponent had, just before the Extension Application was filed, become aware of further prior art documents which may be relevant to the Opposition; and if considered relevant, would require amendment to the Statement of Grounds & Particulars to be included in the Opponent’s Evidence-in-Support and inclusion in the Evidence-in-Support.”
The applicant responded as follows:
1.   The reasons provided by both opponents in the respective applications are manifestly inadequate.
2.   The principal reason provided by Ms Qin was;
“Further time is required to complete preparation and service of the opponent’s evidence in support.”
This is not an explanation for the delay. There is no explanation of what if any steps Qin has taken to prepare her evidence in support. There is no explanation of what further steps are required and an indication of how long these further steps will take.
3.   The impression of a complete lack of any activity is reinforced by the written submissions filed on behalf of Qin. These written submissions indicate that, notwithstanding that the application has been advertised as accepted for ten months, and has been under opposition for seven months, the opponent’s attorneys have still not determined who would be an appropriately skilled person. The written submissions also fail to specify what, if any steps, Qin has taken to progress her opposition in the last seven months. On the basis of the comments regarding the identification of the relevant skilled addressee, it is reasonable to assume that no constructive steps have been taken.
4.   The second reason relied on by Qin in the written submissions is that the opponent’s attorneys moved premises. To the extent that this could ever be relevant to the grant of an extension of time, the attorneys have failed to provide any details about the nature of the move, when it occurred and the extent of delay caused by the move.
The opponent’s attorney has submitted that they had difficulties in establishing appropriate expert witnesses. They have provided detailed reasoning on those parties that cannot be considered to be experts in the art. No information has been provided on who is considered to be the expert witness. Further, what efforts were made to locate an expert witness have not been specified. Mention has been made of prior usage and an importer of relevant goods but there is no indication of location of an expert witness either in Australia or overseas. I note that the application has been under opposition for seven months but no evidence has been provided to show the efforts made to progress the opposition. I do not consider that a statement on the opponent’s attorney shifting premises, without supporting detail of the extent of delay and degree of inconvenience caused is sufficient justification for a delay in filing evidence in support. Further the discovery of further prior art documentation does not justify the delay in filing of evidence in support. Further prior art can be introduced as further evidence at any stage of the opposition. I am not satisfied that a proper explanation for the delay has been provided.
The public interest
Qin’s attorney submitted the following arguments:
·“While it can be alleged by the Applicant that the extension of time could delay the ultimate grant of a Patent on the accepted Application, which may be to the detriment of the applicant; it is clearly in the public interest to ensure that any Patent, if granted on the application, should be prima facie valid, and it would be against the public interest not to have the validity of the application tested during Opposition proceedings, which is the reason why third party, post-acceptance, Opposition proceedings are provided in the Patents Act 1990 and Patent Regulations.
·It appears to be established Patent Office practice to allow at least one (1) three (3) month extension of time for service of Evidence-in-Support in Patent Oppositions; and refusal of the Extension Application would be contrary to such practice.
·On balance, the public interest must truly outweigh the Applicant’s much narrower self-interest and the extension of time application should be allowed.
The applicant’s attorneys responded as follows:
·Qin’s attorneys assert…that it is established practice of the Office to grant at least one (1) three (3) month extension of time. The contention for an inflexible policy of this nature must be wrong at law given that the discretion cannot be reduced to an imperative compliance. Every case must be determined on its merits. In particular, where there is manifest failure to provide any cogent explanation for the reasons for further time, then the Office has the power to refuse an application even if it is the first one.
·Moreover, it is submitted that in such circumstances, the public interest in ensuring that opponents are obliged to progress their opposition with a minimum level of diligence outweighs the public interest in having oppositions determined on their evidence.
·Accordingly, it is submitted that, in both cases, the public interest is best served by refusing the applications on the basis of the failure of either opponents to take constructive steps to prosecute their oppositions.
In order to determine the extent to which the public interest impacts on determining a serious opposition on its merits I have to assess the nature of the evidence that it is sought to adduce and the significance of that evidence on the current opposition proceedings. The opponent had only filed a statement of grounds and particulars in this matter prior to its request. The opponent filed partial evidence on 12 September 2005, consisting of a declaration from its attorney and copies of three patent specifications listed in the statement of grounds and particulars (comprising a statutory declaration by James Grant Adams with exhibits JGA-1 to 3). The statement of grounds and particulars has raised matters of novelty, prior use, inventive step, manner of manufacture and section 40 issues. Supporting arguments have been provided for section 40 issues and patent documents have been cited for novelty and lack of inventive step. Having considered the statement of grounds and particulars I am satisfied that a serious opposition is in train even though the opponent has only partially filed their evidence in support.
The grounds of novelty and inventive step would require expert evidence for establishing the state of the art and what constituted the common general knowledge in Australia at the relevant date (see National Starch (supra) at para 29). I consider that the filing of any evidence in support, at a later stage, which addresses serious issues of novelty and inventive step is likely to be of high significance for a proper determination of the opposition and therefore definitely in the public interest. I find that a refusal of the extension would work against a proper determination of the opposition and thus go against the public interest.
The interests of Renee Qin
The opponent's case would clearly be prejudiced if I were to refuse the extension and thus preclude it from serving evidence in support of the opposition. The stages of the serving of evidence in answer and evidence in reply would then proceed in the absence of arguments and expert evidence from the opponent in the matters of novelty, inventive step, section 40/fair basis and manner of manufacture. This could potentially impact on the rights of the opponent and public at large in terms of the monopoly finally granted. The opponent's interests clearly lie in a proper determination of the validity or otherwise of the patent application and a clear indication of the monopoly ground that they cannot encroach upon. I conclude that the opponent's interests lie in obtaining an extension of time to enable it to file evidence in support of its opposition.
The interests of Bragel and the Patent Office
The private interests of the applicant in this matter will best be served when it is able to defend its patent application. A proper determination of the opposition (either a grant/refusal/suggested amendments to the specification) will help it with determining future actions in respect of its patent application. At this juncture the applicant has only the notice of opposition, a statement of grounds and particulars and late filed evidence that is available to it. In the absence of detailed submissions from persons skilled in the art for the opposition, the applicant is disadvantaged in that it does not have the full case before it that it has to answer. Also any unnecessary protraction of the opposition proceedings is to the applicant’s disadvantage, as it cannot proceed to a full commercial exploitation of its patent application. I conclude that a delay in the proceedings is clearly against the interests of the applicant. The effect of such a delay on the efficient and orderly administration of the Patent Office lies against allowing the extension, but this is not a significant consideration.
Is the Extension of Time appropriate in all the circumstances?
I shall now consider the various factors and how they impact on a final decision in this matter. I had found that the opponent had not provided a proper explanation for the delay in filing evidence. The opponent has not provided sufficient details supporting a case justifying an extension to file evidence in support. In the matter of the private interests of the parties, the opponent’s interests are best served by the grant of an extension, whereas the applicant’s interests are best served by a refusal of the extension.
Regarding the public interest, the consideration of the nature of the evidence the opponent seeks to adduce and the significance of that evidence for opposition proceedings, I found that from a consideration of the statement of grounds and particulars and late filed evidence, an extension of time would clearly be in the public interest.
I did not find that a satisfactory explanation had been provided by the opponent for the delay in filing evidence in support. I find that the interests of the opponent as weighed up against those of the applicant are fairly equal. The interests of the Patent Office are not of major significance. I have determined that a serious opposition is in train and that the evidence likely to be adduced, at a later stage, which addresses serious issues of novelty and inventive step would be of high significance for a proper determination of the opposition and therefore definitely in the public interest. After due consideration of all relevant matters, I consider that the granting of an extension of time to the opponent until 18 November 2005 to validate the partial evidence filed on 12 September 2005 and allow for the filing of the remaining evidence in support would be appropriate in all the circumstances. At the time of issuing this decision, I am not aware that the opponent has as yet filed any remaining evidence. Consequently I grant the opponent an extension of time up to 18 November 2005 to file the remaining evidence in support.
Second Opponent – Lifeglo Pty Ltd
Explanation of the delay

Lifeglo’s attorney stated:
“In summary, the applicant (for the request for extension) has made progress in attempting to locate an expert witness to support the ground of inventive step as set out in the Statement of Grounds and Particulars. However, there has been some difficulties in obtaining an appropriate person and these reasons are also set out in the Statutory Declaration.”
The statutory declaration by one of Lifeglo’s attorneys indicates the following:
·The contact person in Lifeglo dealing with the attorneys immediately after the filing of the statement of grounds and particulars (18 May 2005) left the firm in June 2005. His departure necessitated the attorneys having to brief other Lifeglo employees on the status of the opposition. Furthermore the new contact required time to consider the opposition.
·That prior to 18 August 2005 several attempts were made to find an expert witness by contacting, bra manufacturers, bra retailers and the Cancer Council in Victoria (the last being an attempt to locate breast prosthesis manufacturers and retailers in Australia).
·In August 2005 fourteen breast prosthesis retailers, distributors and or manufacturers were contacted in an attempt to locate a suitable expert witness, but a suitable witness had not been located by 18 August 2005 when a request for extension was filed.
The applicant responded as follows:
“The reasons provided by Lifeglo are also manifestly inadequate, being.
“Further time is required to locate an expert witness and to complete the evidence in support.”
Again, this is not an explanation for the delay. There is no explanation of what if any steps Lifeglo has taken to prepare its evidence in support. In particular, there is no indication of what actual steps, if any, Lifeglo has taken in the preceding seven (7) months to locate a suitable expert. There is no explanation of what further steps are required and an indication of how long these further steps will take.”
The opponent’s attorney has submitted that they had difficulties in locating appropriate expert witnesses. They have provided details of a broad time range (up to and including August 2005) within which they contacted bra manufacturers, retailers and breast prosthesis retailers, and manufacturers. The details of the outcomes of these contacts have not been provided other than a conclusion that they were unable to locate a suitable expert witness. No information has been provided on who is considered to be the expert witness. There is no indication of location of an expert witness either in Australia or overseas. I note that the application has been under opposition for seven months but there is no firm indication of how the matter is going to be progressed to obtain an expert witness and/or suitable evidence. I do not consider that a statement on the attorney’s contact in the opponent’s firm changing, without supporting detail of the extent of delay and degree of inconvenience caused is sufficient justification for a delay in filing evidence in support. I am not satisfied that a proper explanation for the delay has been provided.
The Public Interest
Lifeglo’s attorney submitted the following arguments:
“…there is serious public interest in this opposition because, as alleged by the other opponent (Renee Qin), there has been prior use of the product which is the subject of the patent application. It is in the public interest not to grant a patent which may be invalid. Therefore, the proceedings should be determined on their merit, and the nature and significance of the evidence sought in this opposition indicates there is a serious opposition on foot. This evidence has been unable to be completed in the three months which was originally set down to lodge and serve evidence in support of the opposition.
The applicant’s attorneys responded as follows:
·Both opposing parties say that the public interest is best served by allowing the extensions of time. There is no rule of practice that the (Patent) Office must grant the first extension of time. The contention for an inflexible policy of this nature must be wrong at law given that the discretion cannot be reduced to an imperative compliance. Every case must be determined on its merits. In particular, where there is manifest failure to provide any cogent explanation for the reasons for further time, then the Office has the power to refuse an application even if it is the first one.
·Moreover, it is submitted that in such circumstances, the public interest in ensuring that opponents are obliged to progress their opposition with a minimum level of diligence outweighs the public interest in having oppositions determined on their evidence.
·Accordingly, it is submitted that, in both cases, the public interest is best served by refusing the applications on the basis of the failure of either opponents to take constructive steps to prosecute their oppositions.
In order to determine the extent to which the public interest impacts on determining a serious opposition on its merits I have to assess the nature of the evidence that it is sought to adduce and the significance of that evidence on the current opposition proceedings. Lifeglo filed partial evidence in support (before the due date of 18 August 2005) consisting of a declaration by Amy Jane Sawyer and copies of eleven patent documents (referred to in the statement of grounds and particulars). Lifeglo has indicated that they are seeking an expert witness to support the ground of inventive step in order to complete their evidence in support. The expert witness is required to provide details of what is known and considered to form the common general knowledge. The statement of grounds and particulars has raised matters of novelty, prior use, inventive step, manner of manufacture and section 40 issues. Supporting arguments have been provided for section 40 issues and patent documents have been cited for novelty and lack of inventive step. Having considered the statement of grounds and particulars I am satisfied that a serious opposition is in train even though the opponent has only partially filed their evidence in support.
The grounds of novelty and inventive step would require expert evidence for establishing the state of the art and what constituted the common general knowledge in Australia at the relevant date (see National Starch (supra) at para 29). I consider that the filing of any evidence in support, at a later stage, which addresses serious issues of novelty and inventive step is likely to be of high significance for a proper determination of the opposition and therefore definitely in the public interest. I find that a refusal of the extension would work against a proper determination of the opposition and thus go against the public interest.
The interests of Lifeglo Pty Ltd
Lifeglo submitted:
“We submit that there can be little or no prejudice suffered by the applicant by the allowance of a three month extension of time in which to serve evidence in support of the present opposition. In the absence of any prejudice, the request for an extension of time of three months to serve evidence in support of the opposition should be allowed.
In contrast, the opponent would be unfairly prejudiced by failure to grant the extension of time to serve evidence in support, and in particular evidence by skilled persons attesting to matters of common general knowledge and lack of inventive step. To shut out the opponent from addressing evidence to these matters would be an unfair prejudice against the opponent, and also contrary to the public interest to ensure that invalid patents are not granted where there is a serious opposition in train.”
The opponent's case would clearly be prejudiced if I were to refuse the extension and thus preclude it from serving the remaining evidence in support of the opposition. The stages of the serving of evidence in answer and evidence in reply would then proceed on partial evidence and in the absence of arguments and expert evidence from the opponent in the matters of novelty, inventive step, section 40/fair basis and manner of manufacture. This could potentially impact on the rights of the opponent and public at large in terms of the monopoly finally granted. The opponent's interests clearly lie in a proper determination of the validity or otherwise of the patent application and a clear indication of the monopoly ground that they cannot encroach upon. I conclude that the opponent's interests lie in obtaining an extension of time to enable it to file the remaining evidence in support of its opposition.
The interests of Bragel and the Patent Office
The applicant submitted:
“Bragel’s interests clearly favour the refusal of the applications for extension of time. The oppositions will significantly delay the grant of Bragel’s patent and therefore delay the enforcement of rights conferred by the granted patent. This prejudice is greatly exacerbated by a failure of the opponents to progress their respective oppositions. The interests of the opponents must be considered in light of their failure to prosecute their oppositions with at least a minimal level of diligence. Considered in this context, their private interests do not outweigh the public and private interests in refusing applications.”
The private interests of the applicant in this matter will best be served when it is able to defend its patent application. A proper determination of the opposition (either a grant/refusal/suggested amendments to the specification) will help it with determining future actions in respect of its patent application. At this juncture the applicant has only the notice of opposition, a statement of grounds and particulars and late filed evidence that is available to it. In the absence of detailed submissions from persons skilled in the art for the opposition, the applicant is disadvantaged in that it does not have the full case before it that it has to answer. Also any unnecessary protraction of the opposition proceedings is to the applicant’s disadvantage, as it cannot proceed to a full commercial exploitation of its patent application. I conclude that a delay in the proceedings is clearly against the interests of the applicant. The effect of such a delay on the efficient and orderly administration of the Patent Office lies against allowing the extension, but this is not a significant consideration.
Is the Extension of Time appropriate in all the circumstances?
I shall now consider the various factors and how they impact on a final decision in this matter. I had found that the opponent had not provided a proper explanation for the delay in filing the remaining evidence including expert evidence. The opponent has not provided sufficient details supporting a case justifying an extension to file the remaining evidence in support. In the matter of the private interests of the parties, the opponent’s interests are best served by the grant of an extension, whereas the applicant’s interests are best served by a refusal of the extension.
Regarding the public interest, the consideration of the nature of the evidence the opponent seeks to adduce and the significance of that evidence for opposition proceedings, I found that from a consideration of the statement of grounds and particulars and partially filed evidence, an extension of time would clearly be in the public interest.
I did not find that a satisfactory explanation had been provided by the opponent for the delay in filing the remaining evidence in support. I find that the interests of the opponent as weighed up against those of the applicant are fairly equal. The interests of the Patent Office are not of major significance. I have determined that a serious opposition is in train and that the evidence likely to be adduced, at a later stage, which addresses serious issues of novelty and inventive step would be of high significance for a proper determination of the opposition and therefore definitely in the public interest. After due consideration of all relevant matters, I consider that the granting of an extension of time to the opponent until 18 November 2005 to allow for the filing of the remaining evidence in support would be appropriate in all the circumstances. At the time of issuing this decision, I am not aware that the opponent has as yet filed any remaining evidence. Consequently I grant the opponent an extension of time up to 18 November 2005 to file the remaining evidence in support.
CONCLUSION
In the matter of requests for extension of time to file evidence in support by the opponents Renee Qin and Lifeglo Pty Ltd, I have determined that extensions be granted for both parties up to 18 November 2005 to file evidence in support.
COSTS
The power to award costs, which is based on section 210 and regulation 22.8, is discretionary and consequently I must take all relevant considerations into account.
The applicant made the following submissions on costs:
“Even if the opponents are granted an extension of time, Bragel seeks its costs. The manifest inadequacy of the reasons provided by the opponents was the reason why Bragel was forced to object. Accordingly, even if further time is granted, costs should be awarded to Bragel.
Qin’s attorney did not make any submissions on costs.
Lifeglo’s attorney submitted that costs should follow the event and in the event that the delegate determined that the explanation supporting the extension request was deemed inadequate then costs should not be awarded to either party.
In the matter of the request for extension of time I have found that both opponents had not provided a proper explanation for the delay in filing of the complete evidence in support. I had determined for both requests that the grant of an extension was justified after a consideration of all the circumstances.
I consider that in the circumstances, if the opponents had provided adequate explanations for the delay in filing of evidence in support, then there was every possibility that the applicant would not have opposed the requests for extension to file evidence in support.
Hence, after considering all the circumstances, I award costs in favour of the applicant Bragel International Inc. and against the opponents, Renee Qin and Lifeglo Pty Ltd.
Jacob Elijah
Delegate of the Commissioner of Patents
Patent attorneys for the applicant : Griffith Hack, Melbourne
Patent attorneys for the first opponent : Fisher Adams Kelly, Brisbane
Patent attorneys for the second opponent : Watermark, Melbourne