Bruce Allan Poltrock v an Wayne Ennor - [1986] APO 40

In the Matter of the Patents Act 1952
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In the Matter of Application No. 552035for a Patent by BRUCE ALLAN POLTROCK
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In the Matter of Opposition thereto by IAN WAYNE ENNOR
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In the Matter of an Application for Extension of Time under Section 59.

DECISION OF A SUPERVISING EXAMINER:
Background
BRUCE ALLAN POLTROCK lodged a provisional application entitled "Agricultural Implement Having Means for Clearing Accumulated Earth Therefrom" on 5 May, 1983. This was followed by a complete after provisional specification No. 27720/84, whose acceptance was advertised under application No. 552035 on 22 May, 1986.
On 22 August, 1986 IAN WAYNE ENNOR lodged an application under S.59(1) for an extension of time until 22 November, 1986 in which to lodge a notice of opposition to the grant of application No. 552035. POLTROCK objected to the extension of time and so the matter was set down for a hearing. Before the date of the hearing both parties waived their right to be heard and lodged written submissions.

The circumstances and grounds in the application for an extension of time read as follows:
"I am in the process of ascertaining whether any prior publication or use of the invention claimed in application serial No. 552035 occurred prior to 5th May 1983, and I am also awaiting advice from the Commissioner of Patents in relation to Section 158(2) of the Patents Act 1952. Thus, more time is required to obtain information upon which a decision to lodge a notice of opposition may be based."

Submissions
The submission made on behalf of ENNOR reads as follows:

"Firstly, we are hampered by a complete lack of grounds underpinning the objection. In anticipation of any suggestion that the proposed opposition is frivolous, we point out the prospective opponent is the applicant for patent in Australia under No. 20530/83 for an invention entitled 'Agricultural Implement', and is a manufacturer of agricultural products generally, trading under the name Ennor Engineering. He is clearly a 'person interested', although it is submitted that this stage in the matter is not the time to determine locus standi.

The prospective opponent understands that apparatus embodying the invention of application serial No. 552035 was publicly displayed prior to the priority date of 5th May 1983. At the time of lodgement of the extension application, he had not obtained hard evidence that such publication had occurred prior to that date. He was also awaiting the results of an enquiry to the Patent Office, to establish whether any such prior exposure was protected by Section 158.

In summary, there would appear to be no basis for the present objection. A request for such an extension is, after all, a preliminary step to the possible lodgement of a Notice of Opposition. Such Notice may not be lodged. In this case it depends on the results of investigations being carried out at present by the prospective opponent. An extension of this type should only be refused, if there…

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.

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Details

Case: [1986] APO 40
Decision Date: 11 November 1986

CaseChat Overview and Summary

In the case of Bruce Allan Poltrock v Ian Wayne Ennor, the issue was an application by Ian Wayne Ennor for an extension of time to lodge a notice of opposition to the grant of a patent application filed by Bruce Allan Poltrock. The application for extension was opposed by Poltrock, leading to a hearing before a supervising examiner. Both parties submitted written arguments instead of attending the hearing. Ennor sought an extension of time to determine if the invention had been publicly disclosed before the priority date of May 5, 1983, and to await advice from the Commissioner of Patents regarding section 158(2) of the Patents Act 1952.

The central legal issue was whether the prospective opponent, Ennor, had provided sufficient grounds to justify an extension of time under section 59(1) of the Patents Act. The decision in the Vangedal-Nielsen case was cited, which held that an extension should be granted if there was evidence of a potentially serious opposition. Poltrock argued that Ennor had not provided substantial evidence of a serious opposition at the time of the extension application. Ennor countered that he genuinely intended to mount a serious opposition and was awaiting necessary information.

The supervising examiner concluded that Ennor had a good reason for not opposing within the initial three-month period, as he was awaiting advice from the Commissioner regarding section 158(2). The examiner found that Ennor genuinely intended to lodge a notice of opposition and that granting the extension would serve the public interest by allowing Ennor more time to gather evidence. The extension application was therefore allowed, and costs were awarded against Poltrock.

Orders