Bulk Handling Australia Group Pty Ltd Summary

IP AUSTRALIA

AUSTRALIAN PATENT OFFICE

Bulk Handling Australia Group Pty Ltd [2012] APO 4

Patent Application: 2011200001

Title:Fold-Up Container

Patent Applicant: Bulk Handling Australia Group Pty Ltd

Delegate: E J Knock

Decision Date: 10 January 2012

Catchwords: PATENTS – examiner objection – case management of divisional applications – no response by applicant – application refused

Representation: Patent applicant: Norman Morcom, Morcom Pernat, Melbourne

IP AUSTRALIA

AUSTRALIAN PATENT OFFICE

Patent Application: 2011200001

Title:Fold-Up Container

Patent Applicant: Bulk Handling Australia Group Pty Ltd

Date of Decision: 10 January 2012

DECISION

I refuse the application.

REASONS FOR DECISION

Patent application 2011200001 was filed by Bulk Handling Australia Group Pty Ltd as a divisional of application 2003203866 on 1 January 2011. An examination report issued on 25 August 2011, raising five objections. In line with the Commissioner's approach to case management of divisionals, the report included the following note:

“Objection(s) 1-5 of my report is based on the same grounds objected to in the examination of patent application 2003203866. Please note that if a response overcoming this objection is not filed within two months of the date of this report the Commissioner will consider whether to direct amendment of the application under section 107 or proceed to refuse the application under section 49(2) of the Act. If you intend to proceed under either of these provisions the Commissioner will notify you in writing and indicate the time and place you may be heard on the matter. In deciding the matter the Commissioner will consider all possible grounds of objection to the application not only those identified above."

As no reply was received, the Commissioner issued a hearing notice in the following terms:

"The examination report of 25 August 2011 raised an objection(s) equivalent to that in the parent application. In line with our approach to case management of divisionals, you were given two months to respond to that report. As no response has been received, the matter will now be set for hearing.
I believe that it is possible to hear this matter on the basis of written submissions, so I allow you one (1) month from the date of this letter to file any submissions you wish. Your submissions should address the ground(s) of objection identified in the examination report. Once your submissions have been received, or alternatively if no submissions are received, the matter will be passed to a hearing officer to issue a written decision. Please note that it is possible for the Commissioner to refuse the application or direct amendment.
Alternatively, if you file amendments overcoming the objection(s) within this period, the Commissioner will not proceed with the hearing. However, if the amendments do not fully overcome the objection(s), you will be advised of this fact and the hearing may continue as above."

The applicant has not provided any submissions.

The objection

I have reviewed the examiner's report, and I agree that there are appropriately raised objections. The applicant has chosen not to defend the application. They have provided no submissions disputing the objections, and have not proposed any amendment to attempt to overcome the objections. In these circumstances there are no reasonable prospects of the applicant overcoming the objections. The application should be refused.

E J Knock
Delegate of the Commissioner of Patents

CaseChat Overview and Summary

Bulk Handling Australia Group Pty Ltd sought to have a patent granted for a fold-up container. The Australian Patent Office rejected the application, and the matter was brought before the court. The key issue before the court was whether the application should be refused due to the applicant's failure to respond to objections raised by the examiner. The examiner's report raised five objections to the patent application, and the applicant was given two months to respond to the report. When no response was received, the Commissioner issued a hearing notice allowing the applicant one month to file submissions. The applicant did not provide any submissions. The court found that the objections raised by the examiner were appropriately raised, and the applicant had not provided any submissions or proposed any amendments to overcome the objections. The court held that in these circumstances, there were no reasonable prospects of the applicant overcoming the objections, and the application should be refused.

The court found that the applicant's failure to respond to the examiner's report and provide any submissions or amendments to overcome the objections resulted in the refusal of the application. The court noted that the Commissioner's approach to case management of divisional applications required the applicant to respond to the examiner's report within two months. When no response was received, the Commissioner issued a hearing notice allowing the applicant one month to file submissions. The applicant did not provide any submissions, and the court found that this resulted in the refusal of the application. The court held that the applicant's failure to respond to the examiner's report and provide any submissions or amendments to overcome the objections meant that there were no reasonable prospects of the applicant overcoming the objections, and the application should be refused.

The court's decision was that the patent application should be refused. The court found that the objections raised by the examiner were appropriately raised, and the applicant had not provided any submissions or proposed any amendments to overcome the objections. The court held that in these circumstances, there were no reasonable prospects of the applicant overcoming the objections, and the application should be refused. The court noted that the applicant had been given ample opportunity to respond to the examiner's report and provide submissions or amendments to overcome the objections, but had failed to do so. The court's decision was that the application should be refused, and the applicant's failure to respond to the examiner's report and provide any submissions or amendments to overcome the objections was the reason for the refusal.

The final orders of the court were that the patent application should be refused. The court held that the applicant's failure to respond to the examiner's report and provide any submissions or amendments to overcome the objections resulted in the refusal of the application. The court noted that the applicant had been given ample opportunity to respond to the examiner's report and provide submissions or amendments to overcome the objections, but had failed to do so. The court's decision was that the application should be refused, and the applicant's failure to respond to the examiner's report and provide any submissions or amendments to overcome the objections was the reason for the refusal. The court's final orders were that the patent application should be refused, and the applicant's failure to respond to the examiner's report and provide any submissions or amendments to overcome the objections was the reason for the refusal.

Bulk Handling Australia Group Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established