Cantarella Bros Pty Ltd v Koninklijke Douwe Egberts B.V
[2019] APO 56
•17 December 2019
Decision
IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Cantarella Bros Pty Ltd v Koninklijke Douwe Egberts B.V. [2019] APO 56
Patent Application: 2009347084
Title:System, Method and Capsule for Preparing a Beverage
Patent Applicant: Koninklijke Douwe Egberts B.V.
Opponent: Cantarella Bros Pty Ltd
Delegate: M. G. Kraefft
Decision Date: 17 December 2019
Hearing Date: Written submissions completed on 6 November 2019.
Catchwords: PATENTS – opposition under section 104 – allowability of amendments under section 102 – consideration of “as a result of the amendment” – whether claiming matter in substance disclosed in specification as filed – whether claims are fairly based – whether claims are clear – opposition unsuccessful on all points raised – proposed amendments allowable.
Representation: Patent attorney for the applicant: Davies Collison Cave
Patent attorney for the opponent: FPA Patent Attorneys
IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Patent Application: 2009347084
Title:System, Method and Capsule for Preparing a Beverage
Patent Applicant: Koninklijke Douwe Egberts B.V.
Date of Decision: 17 December 2019
DECISION
The proposed amendments satisfy the requirements of section 102. The proposed amendments are allowable.
Costs in accordance with Schedule 8 awarded against the opponent, Cantarella Bros Pty Ltd.
REASONS FOR DECISION
BACKGROUND
This matter concerns a request under section 104 by Koninklijke Douwe Egberts B.V. (“the applicant”) to amend the complete specification of patent application 2009347084 arising from the decision, Cantarella Bros Pty Ltd v Koninklijke Douwe Egberts B.V., [2018] APO 15 (“the previous decision”).
Cantarella Bros Pty Ltd (“the opponent”) filed a notice of opposition to the allowance of the amendments on 28 August 2018. A statement of grounds and particulars in support of the opposition followed on 28 September 2018.
On 26 October 2018, the applicant filed a request to dismiss the opposition. The applicant submitted that ground 2 (non-compliance with paragraph 102(2)(a)) should be dismissed due to failure to provide sufficient particulars and that the ground had no reasonable prospect of success. In addition, the applicant requested that certain particulars under ground 3 (non-compliance with paragraph 102(2)(b)) not be relied upon.
In official letters dated 20 November 2018, a delegate of the Commissioner of Patents dismissed the ground of lack of compliance with paragraph 102(2)(a), and directed that the opponent cannot rely on particulars 3.2(f) and (g), and that the opponent provide further and better particulars. On 4 December 2018, the opponent filed an amended statement of grounds and particulars.
After further correspondence between the parties and the Patent Office, a further amended statement of grounds and particulars was allowed on 5 April 2019.
At that point, the time for the opponent to file evidence in support had expired without the opponent filing any evidence. A time was thus set for the applicant to file any evidence in answer to the opponent’s statement of grounds and particulars. Subsequently the applicant indicated it would not be filing any evidence in answer. Consequently, both parties relied solely on written submissions in this opposition.
SPECIFICATION
The pertinent aspects of the present invention, as described in the specification, are discussed by the delegate at [14]-[21] of the previous decision. Discussion of the appropriate qualifications and experience of the relevant person skilled in the present art may be found at [27]-[32] of the previous decision.
For present purposes, it suffices to state that the capsules of known systems may have had substantially soft walls thereby rendering the capsules susceptible to environmental influences causing damage and/or deformation to the capsules. The claimed invention sought to address these disadvantages by providing a capsule with an additional wall element such as a stiffening rib.
AMENDMENTS TO THE CLAIMS
The proposed amendments under section 104 in this case are substantial. It suffices, at present, to set out a broad summary of the proposed changes to the claims as follows. As accepted, the specification concludes with 21 claims. Claims 1, 15 and 17 are independent claims, and claims 18-21 are omnibus claims.
As proposed to be amended, claim 1 is unchanged. Two dependent claims 10 and 12 are added, resulting in current independent claim 15 becoming proposed independent claim 17 with some textual changes. Proposed claims 18-36 are new and are, directly or indirectly, dependent on proposed claim 17. As a consequence, current independent claim 17 becomes proposed independent claim 38, which is unchanged. There is also a new, proposed dependent claim 39, resulting in current omnibus claims 18-21 becoming proposed claims 40-43 with appropriate amendments to appendancies where applicable.
As will become apparent later, the opposition is concerned with proposed independent claim 17 and some of its dependent claims. The relevant claims for the present matter are recited below, with the proposed amendments as indicated.
17. An exchangeable capsule configured to be held in a receptacle of an apparatus such that the apparatus and capsule define a system for preparing a beverage using a product, the capsule comprising a circumferential wall, a bottom closing the circumferential wall at a fist (sic) end, and a lid closing the circumferential wall at a second end opposite the bottom, the wall, bottom and lid enclosing an inner space in which the product is contained, wherein the bottom comprises an entrance area in fluid connection with which fluid dispensing means of the apparatus can be placed
wherebyto supply fluid, such as water,can be supplied,under a pressure of 4 – 20 bar to the capsule,by the fluid dispensing means to the product such that,whereby the fluid is supplied to the product and the beverage is thus prepared, wherein the lid comprises an exit area, arranged to permit passage of the beverage away from the held capsule, to an outlet of the apparatus, the capsule further comprising at least one rib extending from the circumferential wall into the inner space to provide additional stiffness to the capsule.18. An exchangeable capsule according to claim 17, to which the fluid can be supplied by the fluid dispensing means under a pressure of 4.5 – 18 bar.
19. An exchangeable capsule according to claim 18, to which the fluid can be supplied by the fluid dispensing means under a pressure of 5 – 15 bar.
21. An exchangeable capsule according to any one of claims 17 to 20, wherein the exit area is arranged to permit drainage of the beverage away from the held capsule and has a higher flow resistance than the entrance area, to enable a pressure build-up in the capsule before the beverage drains from the capsule via the exit area.
28. An exchangeable capsule according to any one of claims 23 to 27, wherein the roasted and ground coffee is compacted.
31. An exchangeable capsule according to any one of claims 17 to 30, wherein the exit area forms a fluid-permeable sheet.
36. An exchangeable capsule according to any one of claims 17 to 35, wherein the or each rib extends from the bottom towards the lid.
APPLICABLE LAW
As a consequence of the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 (“the Raising the Bar Act”), there are substantial changes to the Patents Act 1990 (“the Act”). The date of effect of those changes was 15 April 2013. The application of the Raising the Bar Act in the present case depends on the date of the request for examination. The applicant filed its request for examination on 3 April 2013. Consequently, the Patents Act as in force before 15 April 2013 applies in the present case.
This means the former standard for opposition proceedings applies and the opponent bears the onus of establishing that the amendment should not be allowed (by analogy F Hoffman-La Roche AG v New England Biolabs Inc [2000] FCA 283; 50 IPR 305 at 311, 319; Commissioner of Patents v Sherman [2008] FCAFC 182; 79 IPR 426; Genetics Institute Inc v Kirin-Amgen Inc [1999] FCA 742; [1999] 92 FCR 106 at [17]).
Section 102 governs the allowability of amendments. At the relevant time, section 102 read as follows:-
(1)An amendment of a complete specification is not allowable if, as a result of the amendment, the specification would claim matter not in substance disclosed in the specification as filed.
(2)An amendment of a complete specification is not allowable after the relevant time if, 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).
Subsection 102(2A) stated that, for the purposes of subsection (2), “relevant time” means after the specification has been accepted.
Relevantly to this case, the pertinent part of section 40, at the relevant time, read as follows:-
(3)The claim or claims must be clear and succinct and fairly based on the matter described in the specification.
The expression “as a result of the amendment” has been considered on many occasions. In RGC Mineral Sands Pty Ltd v Wimmera Industrial Minerals Pty Ltd (“RGC”), [1998] FCA 1358, 89 FCR 458 at page 466, Carr and Goldberg JJ discussed subsection 102(1) as it stood at the time.
“That subsection requires one first to identify precisely what is the amendment. In this case that is done by identifying the difference between the specification as accepted … on the one hand and, on the other hand, as the specification would read if amended in the manner sought. Then one reads the specification as a whole (as so amended in the manner sought) to see whether as a result of the amendments sought (which must mean by reason of the amendment sought) the specification would claim matter not in substance disclosed in the specification as filed. The subsection focuses on the amendment proposed and it must be that amendment which has the result of pushing the claimed matter over the line defined by the expression ‘matter not in substance disclosed in the specification as filed’. The key point to keep in mind is, as counsel for the respondent contended (in our view correctly), that the words ‘as a result of the amendment’ are not to be confused with the expression ‘after the amendment’.”
Pre-existing defects in the specification are not relevant in considering the allowability of amendments under section 102. As noted by Bennett J in Apotex Pty Ltd v Les Laboratoires Servier (No 2), (“Apotex”), [2009] FCA 1019 at [28]:-
“There may be deficiencies in the (existing) complete specification or lack of compliance with s40 which do not fall for consideration at this time. The question is whether, as a result of the introduction of the proposed new claims, the amendments are not allowable because of the requirements of s102.”
In summary, it is the difference between the specification as it stands and as it is proposed to be amended that must be considered.
STATEMENT OF GROUNDS AND PARTICULARS
The statement of grounds and particulars, as allowed, listed the following grounds of opposition.
(1)The proposed amendment is not allowable because, as a result of the amendment, the specification would claim matter not in substance disclosed in the complete specification as filed (section 102(1));
(2)the proposed amendment is not allowable because, as a result of the amendment, the specification would not comply with subsection 40(3) (section 102(2)(b)).
The opponent provided particulars in support of each of the above grounds.
SUBMISSIONS ON THE LAW
The law and the consequent operation of section 102 did not appear to be in any significant dispute between the parties. Accordingly I will only comment on a few additional aspects as follows.
The opponent referred to ICI Chemicals & Polymers Ltd v The Lubrizol Corporation Inc, [2000] FCA 1349 at [118], to submit that there was a close relationship between ‘in substance disclosed’ and ‘fair basis’ such that it would be “a rare case indeed where a claim which claims matter in substance disclosed in the specification as filed is not, equally, fairly based on the matter described in the specification (and vice versa)”. Accordingly, the opponent stated that one question when determining whether claimed matter is not in substance disclosed, or not fairly based, is effectively whether there is a real and reasonably clear disclosure in the relevant specification of what is claimed in the amended claim (United States Gypsum Company v CSR Building Products Ltd, [2017] FCA 595 at [45]).
The applicant similarly noted a close relationship between ‘matter in substance disclosed’ and the test for fair basis, referring to Bristol-Myers Squibb Company v Apotex Pty Ltd, [2010] FCA 814 at [39], amongst other cases. In this context, the applicant then dealt with the principles applicable to the question of fair basis, including the requirement of a real and reasonably clear disclosure. In the latter respect, the applicant cited Lockwood Security Products Pty Ltd v Doric Products Pty Ltd (“Lockwood”), [2004] HCA 58, which in turn referred to the words of Fullagar J in Societe des Usines Chimiques Rhone-Poulenc v Commissioner of Patents, [1958] HCA 27, (1958) 100 CLR 5 at 11. At [69] of Lockwood:-
“Section 40(3) requires, in Fullagar J’s words, ‘a real and reasonably clear disclosure’. But those words, when used in connection with s 40(3), do not limit disclosures to preferred embodiments.
‘The circumstance that something is a requirement for the best method of performing an invention does not make it necessarily a requirement for all claims; likewise, the circumstance that material is part of the description of the invention does not mean that it must be included as an integer of each claim. Rather, the question is whether there is a real and reasaonably clear disclosure in the body of the specification of what is then claimed, so that the alleged invention as claimed is broadly, that is to say in a general sense, described in the body of the specification’.” (Re: Rehm Pty Ltd v Websters Security Systems (International) Pty Ltd, [1988] FCA 162 at [54]).
The opponent also accepted that “[l]ack of precise definition in claims is not fatal to their validity, so long as they provide a workable standard suitable to the intended use” (Flexible Steel Lacing Co v Beltreco Ltd, [2000] FCA 890, at [81]).
DISCUSSION
Whether Claiming Matter In Substance Disclosed In The Specification As Filed
In respect to new claim 21, the opponent noted, amongst other things, that the specification as filed teaches that the entrance layer has a certain flow resistance determined by e.g. the width, the cross-section and/or the distribution of the entrance openings over the entrance layer. The opponent further noted that the exit layer has a certain flow resistance determined by e.g. the porosity and/or permeability of the filter layer such as filter paper. Moreover, the flow resistance of the exit layer is higher than the flow resistance of the entrance layer to enable pressure build-up in the capsule before the beverage drains from the capsule via the exit layer.
The opponent stated there was no real and reasonably clear disclosure within the specification as filed of any other means for achieving such a comparative flow resistance. In contrast, new claim 21 claims every manner of achieving such a flow resistance relationship and, thus, the opponent contended that claim 21 clearly travels beyond the subject matter of the invention described.
From the above, it would appear the opponent contended that, because the specification describes only a few ways of controlling the flow resistance at each of the entrance layer and the exit layer, the claim must be restricted to those ways. On the other hand, it would firstly be apparent from the specification as filed that these are embodiments of the invention, and that other ways of controlling flow resistance would have also been apparent to the relevant person skilled in the art at the relevant time. Secondly, the description of the invention itself discusses these ways as merely being by example.
The applicant noted an alternative from page 3 of the specification as filed. The first two paragraphs state that the additional, stiffening rib may be configured to also provide a flow resistance to the fluid entering the capsule.
New claim 21 defines the exit area being arranged to permit drainage of the beverage and having a higher flow resistance than the entrance area, to enable a pressure build-up in the capsule before the beverage drains therefrom. This is broadly described in the body of the specification as filed. I find that new claim 21 would claim matter in substance disclosed in the specification as filed.
For new claim 31, the opponent stated that the only disclosure of a fluid-permeable sheet, in the specification as filed, was that of the lid forming a substantially continuous fluid-permeable sheet. By contrast, the opponent further described the exit area, as used in the specification, as a conceptual term used to define a certain zone or area of the capsule by its function. Accordingly, the opponent submitted there was no real and reasonably clear disclosure in the specification as filed of a conceptual zone or area with the ability to form a physical, structural feature.
This complaint would appear to be artificially distinguishing a feature or features as conceptual or physical, and arguing the semantics of the terminology used in the specification. In this respect, the following extract from Eli Lilly and Company Limited v Apotex Pty Ltd, [2013] FCA 214, at [139], is pertinent:-
“It is well settled that the Court should, from the outset, approach the task of patent construction with a generous measure of common sense. The Court must place itself in the position of a person skilled in the relevant art, being the subject matter of the patent. From this perspective, the patent is to be read as a whole, in the context of the specification and in light of the prevailing common general knowledge and state of the relevant art at the priority date”.
In the present case, the relevant paragraph of the specification, as filed, is at the foot of page 9. Therein, the lid forms an exit area of the capsule through which the beverage can drain. Moreover, the lid comprises an exit layer that forms the lid and, more particularly, the entire lid is formed as a porous sheet exit layer, and forms a substantially continuous fluid-permeable sheet. Clearly the lid is a means for enabling the exit of beverage and is permeably layered or sheet-like, and it would appear natural that the reference to “exit area” should also be seen as such.
While an exit area may appear, on the face of it, conceptually broader in scope than a lid, it is noteworthy that claim 1, as originally filed, and page 1 line 13 of the specification as originally filed, define the lid comprising an exit area. Moreover, the definition in new claim 31 of the exit area forming a fluid-permeable sheet provides some restrictive context, along the lines of the specification as filed, as to the nature of the exit area. I find that new claim 31 would claim matter in substance disclosed in the specification as filed.
In respect to new claim 36, the opponent stated that the specification as filed disclosed only that a stiffening rib is an additional wall element that extends from the bottom to the lid of the capsule. That is, there was no disclosure of a rib extending towards the lid, as claimed.
The opponent further noted that the specification, as filed, deliberately distinguished an extension towards something from an extension to something. For instance, the opponent referenced several points in the specification where the additional wall element extended towards the inner space of the capsule in contrast to references where the additional wall element extended to the lid of the capsule.
The applicant principally relied on Figure 4a and stated there was a clearance between the rib and the lid. In submissions, the applicant accentuated this by an annotated, enhanced and enlarged drawing of Figure 4a. While the applicant cited the Leonardis v Sartas No 1 Pty Ltd case, [1996] FCA 449, as authority that a drawing alone can provide fair basis for a feature of a claim, the opponent referred to the same case in respect to its discussion of the relative dimensional significance of the relevant, illustrated feature. The opponent stated that, in contrast to the “space under the spacing unit” in Leonardis, the clearance between the ribs and the lid, as shown in original Figure 4a, is so insignificant by comparison with the height of the ribs and capsule itself that the applicant is forced to present two enlarged and colour-enhanced versions of Figure 4a to draw attention to it. The opponent submitted that Leonardis is not authority for a magnified and colour-enhanced version of a drawing providing fair basis for a claim. In the present case, I would find that, while there may be a clearance or gap illustrated in Figure 4a, in proportion to the whole of the rib structrure and the capsule, the clearance is minute. Effectively, Figure 4a illustrates the rib extending to the lid.
In a general context though, it is clear that an extension towards a feature may only be partially extending to that feature. The question in the present case is whether a fair reading of the specification by the relevant person skilled in the art would have guided that person to conclude that the wall element must extend from the bottom of the capsule all the way to the lid of the capsule. In this respect, there is at least one reference in the specification as filed, at page 12 lines 21 and 22, which states that the additional wall element may extend from the bottom to the lid (my emphasis). That is, the additional wall element may or it may not extend from the bottom to the lid. Moreover the specification describes, at page 13 lines 26 and 27, an increase of the cross-section of the ribs from the bottom towards the lid (my emphasis again). In the present context, I would find a person skilled in the present art would have considered an extension of the wall element towards the lid, and not necessarily all the way to the lid. I find that new claim 36 would claim matter in substance disclosed in the specification as filed.
Whether The Claims Are Fairly Based
The opponent effectively relied on the same arguments as above to submit there was no real and reasonably clear disclosure within the specification, as proposed to be amended, of the features within new claims 21, 31 and 36. Accordingly, the opponent stated those claims were not fairly based on the matter described in the specification. For similar reasons as above, I find that this ground of opposition is not made out.
Whether The Claims Are Clear
The opponent contrasted current claim 15 with the corresponding new claim 17 as proposed to be amended. The opponent noted that accepted claim 15 required the entrance area of the capsule to be capable of allowing fluid to be supplied under pressure by the fluid dispensing means to the product, whereas new claim 17 required the fluid dispensing means to supply fluid under a pressure of 4 - 20 bar to the capsule.
According to the opponent, the introduction of this limitation of the fluid dispensing means of the apparatus implied that the claim is effectively directed to either:-
(a)the system defined by the capsule and the apparatus, the latter including the fluid dispensing means supplying fluid under the claimed pressure of 4 – 20 bar; or
(b)use of the capsule in the apparatus that has the fluid dispensing means supplying fluid under the claimed pressure of 4 – 20 bar.
The opponent effectively suggested the above alternatives impacted on the applicability of section 117 of the Act, which relates to infringement by supply of products. The opponent thus submitted that new claim 17 does not provide a workable standard by which a third party could, without difficulty, determine whether or not a produced capsule would fall within the scope of the claim and, accordingly, as a result of the amendment, new claim 17 lacks clarity.
In this respect, the opponent’s argument is difficult to follow. New claim 17 is clearly directed to an exchangeable capsule with, amongst other things, a bottom comprising an entrance area. That entrance area can have an external fluid dispensing means placed in fluid connection therewith. That of itself appears to be clear enough. In any case, all of this exists in current claim 15. Thus, even if there were a problem with this definition, it is not as a result of the amendment.
If the opponent’s complaint relates to a switch of emphasis of the fluid supply whereby, in claim 15, the entrance area of the capsule can allow fluid to be supplied under pressure to the product, whereas, in new claim 17, the fluid dispensing means supplies fluid under pressure to the capsule, then again, any difficulty with this is not readily apparent. Firstly, current claim 15 also defines that the fluid can be supplied under pressure by the fluid dispensing means. Thus again, even if there were a problem, it is not as a result of the amendment. Secondly, I would also consider this definition is not incongruent with the entrance area of the capsule also allowing the fluid supply under pressure. The fluid dispensing means is simply the upstream supply means of fluid under pressure to the capsule, when in fluid connection. The entrance area of the capsule is a downstream means allowing the through-flow of that fluid to the product. This arrangement is evident in both the current claim 15 and the proposed claim 17. Thirdly, it is not readily apparent how the supposed introduction of the limitation of the fluid dispensing means, as described by the opponent, implies the opponent’s above-described alternatives of construction of new claim 17.
Alternatively, if the opponent’s complaint of an introduced limitation of the fluid dispensing means relates to the nominated pressure between 4 -20 bar in new claim 17, again, any difficulty with this is not readily apparent on the face of it. In subsequent submissions on this point from both sides, this argument appeared to become lost, in all likelihood, because it was difficult to establish from the outset. In the final analysis, the opponent appeared to suggest new claim 17 was flawed because the specification was silent as to how the functional capability of the capsule, impliedly attributed by the applicant to the functional capability of the fluid dispensing means, produced a beverage only when it is supplied with a fluid under a pressure of 4 – 20 bar.
In this respect, the opponent appeared to adopt a strained construction of new claim 17. In the claim, there is no defined pressure dependency on the capsule in its capacity for the production of a beverage. The claim clearly defines the capacity to place the fluid dispensing means in fluid connection with the entrance area of the capsule to supply fluid under a pressure of 4 – 20 bar to the capsule (my emphasis).
I find that new claim 17 is clear.
The opponent submitted that new claims 18 and 19 lacked clarity as a result of the amendment for the same reasons as for new claim 17. It would follow from above that I find claims 18 and 19 are clear.
In respect to new claim 21, the opponent presented similar argument to the previous discussion of claim 21 to state that new claim 21 claims every manner of achieving the defined flow resistance relationship. The opponent thus submitted the claim lacks clarity, as a result of the amendment.
The issue of new claim 21 being for matter in substance disclosed has been addressed above. As for any alleged lack of clarity, as a result of the amendment, with comparative flow resistance in new claim 21 itself, the claim defines the exit area having a higher flow resistance than the entrance area. In submissions, the opponent subsequently took issue with the specification describing two possible configurations of the exit area. The first was that the exit area is produced as a perforate and/or porous layer. The second was that the exit area was perforated by piercing means.
The application of one or both configurations to the exit area may well influence the flow resistance of the exit area. On the other hand, I fail to see how this detracts from the clarity of the claim. The claim simply monopolises a relative position where the exit area has a higher flow resistance than the entrance area. The means for achieving this at both the entrance and the exit is open in the claim, but that does not inherently make the claim unclear in this case. I find that new claim 21 is clear.
For new claim 28, the opponent took issue with the terminology of the roasted and ground coffee being compacted. The opponent stated there was no clarification in the specification as to what constituted compaction, such as any specific minimum density. Rather, the opponent noted that the specification, as proposed to be amended, merely referred to different compartments comprising different compaction of extractable product, and to optimal compaction. Moreover, the opponent indicated there was no temporal restriction in the claim as to when compaction occurred.
The applicant principally submitted that the word “compacted” would be understood by the skilled person in the context of the well-known practice of tamping coffee grounds for beverage brewing. Thus, the skilled person would understand the capsule is filled so that the coffee is compacted.
Furthermore, the applicant submitted that it was unnecessary for the claim to specify a specific minimum density or any other quantitative definition for compaction. The applicant referred to VIP Plastic Packaging Pty Ltd v B.M.W. Plastics Pty Ltd, [2011] FCA 660. At [145]:-
“… the use of the words … may not have a precise meaning but, in the context, in which they are used they provide the skilled addressee with a workable standard suitable to the intended use.”
It could be argued, for new claim 28, that the degree of compaction of the coffee product is open. On the other hand, I expect it would have been readily understood that compaction is principally a process of combining or placing particles more tightly into a smaller, relative volume. Taking guidance from [30]-[32] of the previous decision that relevant persons skilled in the present art would be those versed with the design and manufacture of coffee capsules for beverage dispensing machines, I would expect such persons would have readily provided a workable standard, at the relevant time, as to what constituted compaction in the present context. I find that new claim 28 is clear.
In respect to new claim 31, the opponent raised again its point of the exit area, as used in the specification, as a conceptual term used to define a certain zone or area of the capsule by its function, and that it was thus unclear how a conceptual zone or area has the ability to form a physical, structural feature rather than be formed or embodied by it.
New claim 31 defines the exit area forming a fluid-permeable sheet. While it would appear that the relevant person skilled in the art would have readily been able to provide a workable standard of this definition on the face of it, one may also note the earlier, proposed independent claim 17’s definition of the lid of the capsule comprising an exit area. New claim 31, thus, is directed to the lid of the capsule comprising an exit area which in turn forms a fluid-permeable sheet. I find that new claim 31 is clear.
CONCLUSION
The opposition is unsuccessful on all points raised by the opponent in this case. I see no other relevant point of non-compliance. I conclude the proposed amendments satisfy the requirements of section 102. The proposed amendments are allowable.
COSTS
It is normal that costs follow the event. I see insufficient reason to depart from that approach in the present case. The opposition is unsuccessful. I award costs in accordance with Schedule 8 against the opponent, Cantarella Bros Pty Ltd.
M. G. Kraefft
Delegate of the Commissioner of Patents
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