CQMS Pty Ltd v Esco Corporation - [2014] APO 54

IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
CQMS Pty Ltd v Esco Corporation [2014] APO 54

Patent Application: 2003275124

Title:Coupling arrangement

Patent Applicant:  Esco Corporation
Opponent:  CQMS Pty Ltd
Delegate:  R Subbarayan
Decision Date:  29 July 2014
Hearing Date:  7 May 2014, in Canberra
Catchwords:  PATENTS – opposition to grant of patent – all claims found to be clear, fairly based, novel and inventive – costs awarded against opponent.

Representation: Patent applicant: Stephen Burley of Counsel assisted by Stephen Worthley of Minter Ellison
Opponent: Fisher Adams Kelly

IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Patent Application: 2003275124

Title:Coupling arrangement

Patent Applicant: Esco Corporation
Date of Decision: 29 July 2014
DECISION
Opposition is wholly unsuccessful. The claimed invention is clear, fairly based, novel and inventive. Costs awarded against the opponent. The application is to proceed to grant if an appeal against this decision is not filed within the relevant period.
REASONS FOR DECISION
Background

Patent application 2003275124 in the name of Esco Corporation was filed on 22 September 2003 as a PCT application and claims priority from US application 60/411762 filed on 19 September 2002. The application was advertised as accepted on 23 September 2010. On 23 December 2010 CQMS Pty Ltd filed a notice of opposition to the grant of the patent under section 59 of the Patents Act. The opposition was heard in Canberra on 7 May 2014. While the Applicant appeared in person, the Opponent only filed written submissions for the hearing comprising submissions in chief received on 23 April 2014 and further submissions received on 6 May 2014.
Grounds of Opposition
The application has been opposed on the grounds of Novelty, Inventive Step, Clarity and Fair Basis.
Evidence
Evidence in Support comprises:
·Statutory Declaration dated 22 March 2013 by Dr John De Wit with exhibits JDW-01 to JDW-03
Evidence in Answer comprises:
·A first Statutory Declaration dated 8 June 2013 by Hezekiah Russel Holland
·A second Statutory Declaration dated 21 August 2013 by Hezekiah Russel Holland
Evidence in Reply comprises:
·Statutory Declaration dated 20 November 2013 by Dr John De Wit with exhibits JDW-04 to JDW-08
Onus of Proof
The examination request for this patent application was filed on 19 November 2007. As a consequence, substantive amendments of the Patents Act brought about by the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 do not apply to the present application. This includes the amendment to subsection 60 (3A) that allows the Commissioner to refuse a patent application if satisfied on the balance of probabilities that a ground of opposition exists.
Consequently the former standard for opposition proceedings applies and the opponent must establish that it is clear or practically certain that the patent is invalid (F Hoffman La Roche AG v New England Biolabs Inc [2000] FCA 283 at [29], [67]; 50 IPR 305 at 311, 319; Commissioner of Patents v Sherman [2008] FCAFC 182 at [18], [22]; 79 IPR 426; Genetics Institute Inc v Kirin-Amgen Inc [1999] 92 FCR 106 at [17]).
Specification
The present invention relates to a lock for releasably securing a wear member to an excavating bucket of an excavator. Excavating teeth are normally secured along the digging edge of excavating buckets in order to penetrate and break up the ground in advance of the bucket. Such teeth usually comprise an adaptor nose which is rigidly fixed or integrally formed with the bucket lip, a wedge-shaped point or tip constituting the wear member that is received over the adaptor and a lock or retainer that is inserted into aligned passages in the point and nose to removably secure the point to the nose. As the teeth are subjected to very arduous conditions the lock needs to be securely retained in position without loosening. This is normally achieved by forcing the lock into a very tight fit in the aligned passages. Insertion and removal of the lock therefore requires applying repeated blows to the lock with a large hammer and this can be time consuming for the operator.
The invention proposes a lock that can be installed and removed on site in an easy and quick manner without the need for repeated hammer blows and yet can effectively hold the wear part in place under severe operating conditions.
In it broadest form the lock of the invention comprises two members, one being a resilient body member having a passage and which is adapted to be received within an opening in the adaptor nose and the other being a movable locking member that is received within the passage in the resilient body member and is movable between a locking position in which it secures the wear part to the nose and a release position in which the wear part can be removed from the nose. The resilient member resists movement of the locking member from the locking position to ensure that the locking member does not move out of the locking position even under severe operating conditions.
In a preferred form, the resilient member is an elastomeric sleeve that is mounted within a cavity in a base member which in turn is shaped to fit within a pocket or cavity in the nose. The elastomeric sleeve includes an axial passage having a square cross-section. The locking member is a rigid member having a stem and a projection extending laterally from the stem. The stem also has a square cross-section shank portion which is received within the axial passage of the elastomeric sleeve and is rotatable therein between locking and release positions. The complementary square cross-sections of the shank and the sleeve resists rotation of the shank from the locking and release positions unless a certain force is applied and this ensures that the locking member is prevented from unintentionally rotating out of the locking position while in use.
The specification ends with 20 claims including 6 independent claims. The claims read as follows and include added integer numbers (as proposed by the opponent) to identify the various integers of the independent claims:
1.(i) A wear assembly for an excavating bucket including:
(ii) a base fixed to the excavating bucket and including a nose;
(iii) a wear part having a socket to receive the nose, and (iv) a hole extending through the wear part to open in the socket, the hole having a peripheral outline; and
(v) a lock for releasably holding the wear part to the base, (vi) the lock including a locking member and a resilient member, (vii) the resilient member defining a central passage through which the locking member is received, and (viii) the locking member being rotatable within the central opening of the resilient member between a locking position where the lock secures the wear part to the base and a release position rotationally spaced from the locking position, (ix) wherein the resilient member resists the movement of the locking member from the locking position.
2.The wear assembly in accordance with claim 1, wherein the locking member includes a radially extending flange that moves in an arc about the rotational axis when the locking member moves from the release position to the locking position.
3.(i) A wear assembly for an excavating bucket including:
(ii) a base fixed to the excavating bucket and including a nose;
(iii) a wear part having a socket to receive the nose, and (iv) a hole extending through the wear part to open in the socket, the hole having a peripheral outline; and
(v) a lock for releasably holding the wear part to the base, (vi) the lock including a locking member having a stem and a lateral projection extending from the stem in a fixed relation to the stem, (vii) the locking member being rotatable about a longitudinal axis of the stem between a release position and a locking position (viii) with the lateral projection being axially aligned with the hole in the release position and at least partially outside of the peripheral outline of the hole in the locking position such that the lateral projection is set between the nose and the wear part to prevent release of the lock, and (ix) a resilient member engaging the locking member to resist turning of the locking member from the locking position to the release position, (x) wherein the resilient member defines a passage through which the stem is received.
4.The wear assembly in accordance with claim 3, wherein the stem and the passage have complementary non-circular shapes for alternatively holding the stem in the release position and the locking position.
5.The wear assembly in accordance with claim 3 or claim 4, wherein the resilient member is in a first state when the locking member is in the release position and in the locking position and in a second state where the resilient member is flexed relative to the first state while the locking member is turned between the release position and the locking position.
6.(i) A wear assembly for an excavating bucket including:
(ii) a base fixed to the excavating bucket, (iii) the base including a nose having upper and lower converging walls, (iv) opposite sidewalls, and (v) a pocket in one of the sidewalls;
(vi) a wear part having a socket to receive the nose, and (vii) a hole extending through the wear part to open in the socket, (viii) the hole being generally aligned with the pocket when the nose is fit into the socket, (ix) the hole having a peripheral outline; and
(x) a lock for releasably holding the wear part to the base, (xi) the lock including a locking member having a stem and a lateral projection extending from the stem in a fixed relation to the stem, (xii) the stem having a tool-engaging formation on one end so that the locking member is rotatable about a longitudinal axis of the stem between a release position and a locking position (xiii) with the lateral projection being axially aligned with the hole in the release position and at least partially outside of the peripheral outline of the hole in the locking position such that the lateral projection is set between the nose and the wear part to prevent release of the lock, and (xiv) an elastomer received into the pocket and including a central opening to receive the stem, (xv) the elastomer engaging the locking member to resist turning of the locking member from the locking position to the release position.
7.The wear assembly in accordance with any one of claims 1 to 6, wherein the locking member includes a formation on one end to engage a tool to turn the locking member from the release position to the locking position.
8.The wear assembly in accordance with any one of claims 1 to 7, wherein the lock has an axial length that is the same in each of the release and locking positions.
9.The wear assembly in accordance with any one of claims 1 to 8, wherein the lock remains at substantially the same depth in the wear part and the base in both the release position and the locking position.
10.The wear assembly in accordance with any one of claims 1 to 9, wherein the base includes a pocket generally aligned with the hole in the wear member, and the resilient member is received into the pocket.
11.The wear assembly in accordance with any one of claims 3 to 10, wherein the stem rotates relative to resilient member in moving from locking position to the release position.
12.The wear assembly in accordance with any one of claims I to 11, wherein the resilient member is composed of an elastomer.
13.(i) A lock for holding a wear part to a base that is fixed to an excavating bucket including:
(ii) a locking member having a stem and a lateral projection extending from the stem in a fixed relation to the stem, (iii) the locking member being rotatable about a longitudinal axis of the stem between a release position and a locking position (iv) with the lateral projection being axially aligned with a hole in the wear part when the locking member is in the release position and at least partially outside of a peripheral outline of the hole in the locking position such that the lateral projection is set between the nose and the wear part to prevent release of the lock; and
(v) a resilient member engaging the locking member to resist turning of the locking member from the locking position to the release position, (vi) wherein the resilient member defines a passage through which the stem is received.
14.The lock in accordance with claim 13, wherein the stem and the passage have complementary non-circular shapes for alternatively holding the stem in the release position and the locking position.
15.The lock in accordance with claim 13 or claim 14, wherein the stem has an end formed with a non-circular configuration adapted to engage a tool for turning the stem between the release and locking positions.
16.The lock in accordance with any one of claims 13 to 15, which has an axial length that is the same in each of the release and locking positions.
17.The lock in accordance with any one of claims 13 to 16, wherein the wear part is a point of an excavating tooth.
18.The wear assembly in accordance with any one of claims 1 to 12, wherein the wear part is a point of an excavating tooth.
19.A wear assembly for an excavating bucket, substantially as described herein with reference to the accompanying drawings.
20.A lock for holding a wear part to a base that is fixed to an excavating bucket, substantially as described herein with reference to the accompanying drawings.
Construction of the claims
The correct approach to the construction of claim has been discussed in a number of authorities including the following:
In Catnic Components Ltd. v. Hill & Smith Ltd. (1982) R.P.C. 183 Lord Diplock stated
“A patent specification should be given a purposive construction rather than a purely literal one derived from applying to it the kind of meticulous verbal analysis in which lawyers are too often tempted by their training to indulge”
In Kirin-Amgen Inc v Hoechst Marion Roussel Ltd (2004) 64 IPR 444 Lord Hoffman stated
“"Purposive construction" does not mean that one is extending or going beyond the definition of the technical matter for which the patentee seeks protection in the claims. The question is always what the person skilled in the art would have understood the patentee to be using the language of the claim to mean”
More recently in H Lundbeck A/S v Alphapharm Pty Ltd [2009] FCAFC 70, 81 IPR 228 at [118] – [120] Bennett J stated
“Whether reference is made to the discussion of the High Court in Welch Perrin and Company Proprietary Limited v Worrel [1961] HCA 91; (1961) 106 CLR 588 and Kimberly-Clark Australia Pty Limited v Arico Trading International Pty Limited (2001) 207 CLR 1, Sheppard J in Décor Corporation Pty Ltd v Dart Industries Inc (1988) 13 IPR 385, Hely J in Flexible Steel Lacing Company v Beltreco Ltd [2000] FCA 890; (2000) 49 IPR 331, Bennett J in Sachtler GmbH and Co KG (formerly Sachtler AG) v RE Miller Pty Ltd [2005] FCA 788; (2005) 221 ALR 373, or the elegant exposition of claim construction by Lord Hoffman in Kirin-Amgen Inc v Hoechst Marion Roussel Ltd (2004) 64 IPR 444, the end point is that the words in a claim should be read through the eyes of the skilled addressee in the context in which they appear. Words used in a specification are to be given the meaning which the person skilled in the art would attach to them, having regard to his or her own general knowledge and to what is disclosed in the body of the specification (Jupiters Ltd v Neurizon Pty Ltd [2005] FCAFC 90; (2005) 222 ALR 155 at [67]). This applies to words used in the claims.”
It is clear from the submissions of the parties, that there are two claim construction issues that need to be resolved before I make any determination in relation to anticipation.
Resists movement from the locking position
Each of the independent claims requires that that the resilient member/elastomer resists movement/turning of the locking member from the locking position.
The opponent submitted that this feature does not specify the level of resistance that is provided and some form of resistance is all that is required.
The applicant on the other hand argued that the sufficiency of the resistance would need to be considered in light of the lock’s intended purpose.
I agree. It is clear from the reading the specification that the purpose of the resilient or elastomeric member is to resist unwanted or unintentional movement of the locking member from the locking position but still permit actuation of the lock in an easy and reliable manner and to provide certainty in properly setting the locking member in the release and locking positions. In my view this feature of the claims needs to be interpreted in this context. To do otherwise would be departing from the clear intent of the specification and also from the principles stated in the authorities that I have referred to above.
Therefore in my view this feature in the claims should be construed as the resilient member/elastomer providing sufficient resistance to prevent unintentional movement of the locking member from the locking position while in use.
Movement from the locking position
The opponent also submitted that in claim 1 in the phrase “resists the movement”, the term “movement” is not restricted to rotational movement and could also include axial movement.
I am not convinced. The claim defines the locking member as being rotatable between a locking position and a release position and then defines the resilient member as resisting movement from the locking position. In my view the skilled addressee would therefore clearly understand that the “movement” refers to the movement from the locking position to the release position which has already been defined as a rotational movement. Therefore I construe the term “movement” in claim 1 as a rotational or turning movement rather than an axial movement.
NOVELTY
Although the opponent had listed documents D1-D10 as destroying the novelty of the claimed invention, they only pressed documents D2, D5 and D7 at the hearing.
D2: US 2576225
Document D2 is entitled “Detachable locking means for an excavating bucket tooth” and is clearly directed to similar subject matter as the claimed invention. It states that an object of the invention is to provide “a locking means which is constantly and effectively operable to maintain the point releasably locked on the tang and to automatically take up any slack occurring between the point and the tang during use of the tooth”. It describes four embodiments for achieving this object.
Dr De Wit, the opponent’s expert witness, has annexed to his declaration a “novelty table” (exhibit JDW-01) breaking each claim into its different features and where the corresponding feature in the cited documents can be found. In this decision I will where appropriate follow the same reference numerals for various features of the claims as used by Dr De Wit.
In relation to D2, while Dr De Wit variously refers to passages relating to different embodiments, it is clear that the opponent primarily relies on the embodiments shown in figures 11-12 and figures 13-14.
Even from a cursory reading of D2, it is plainly evident that the locking device of these two embodiments works in a totally different manner to that of the invention described in the application in suit. However the opponent submitted that the invention has been claimed broadly in such a manner as to be anticipated by the disclosure of D2.
In both of these embodiments shown in figures 11-12 and figures 13-14, the locking means includes a wedge key 38 having a recess 50 in which a stud 68 surrounded by a coil spring 70 is received and a plug 66 removably secured in an opening on the top of point 35. The plug bears against the head 69 of stud 68 to maintain spring 70 under compression to thereby urge the key downward to lock the point on the tang and to absorb any play between the point and the tang.

Integers (i) to (vi) of claim 1 are fairly generic to most locking means for a detachable bucket tooth and it is clear that these features are disclosed in D2 and the applicant has not contested this.
Dr De Wit equates spring 70 to the resilient member and the combination of plug 66 and stud 68 to the locking member. As stud 68 is received within spring 70, he states that this is a disclosure of feature (vii). While Dr De Wit accepts that there is no explicit disclosure of stud 68 being rotatable within spring 70, he is of the view that stud 68 will inevitably rotate when plug 66 is rotated due to the frictional engagement between the plug and the upper surface of head 69 and that therefore feature (viii) is disclosed.
Mr Holland for the applicant on the other hand is of the view that “the stud 68 does not rotate relative to the spring between any locking and release position, although it does axially translate to a compressed position”.
In my view Mr Holland’s interpretation is to be preferred. The plug 66 is the only component of the locking means that rotates between locked and release positions and it is certainly not received within spring 70. Although the stud is received within the spring, it is not fixed to the plug and there is clearly no disclosure or a requirement for the stud to rotate within the spring. Any minor rotation of the stud due to frictional forces between the plug and head if it does occur in the embodiment of figures 11-12, will be purely incidental and not intentional and certainly will not be between a locking position where the lock secures the wear part to the base and a release position. I am therefore not satisfied that feature (viii) is disclosed.
Dr De Wit further states that the frictional resistance created by the axial force of the spring 70 would resist movement of the locking member from the locking position and that is therefore a disclosure of feature (ix). However I am not convinced. While it may provide some minor frictional resistance to the rotational movement of the plug, the purpose of the spring is urge the key downward and not to provide resistance to unwanted rotational movement of the plug. As I have discussed earlier under claim construction, in my view the level of resistance needs to be sufficient to prevent unintentional rotation out of the locking position. There is no clear and unmistakeable direction that the axial force of the spring will achieve this result. In any event, as noted earlier the plug itself is not received within the spring. Clearly this feature is also not disclosed.
Claim 1 and its dependent claims are therefore novel over D2.
Independent claims 3 and 6, similar to claim 1, require that the stem of the locking member is rotatable within the central opening of the spring and that the spring resists turning of the locking member. As discussed in relation to claim 1, these integers are not disclosed in D2. Claim 6 further limits the resilient member as being an elastomer and there is no disclosure of an elastomer in D2. It follows that claim 3 and 6 and their dependent claims are also therefore novel.
Claim 13 differs from the other independent claims in that it is directed to the lock per se rather than the entire wear assembly. While Dr De Wit asserts that all of the features of this claim are disclosed in the embodiment of figures 13-14 of D2, I remain unconvinced. While stud 68 and its cam head 69a can be equated to integer (ii), they clearly do not rotate as discussed earlier. Although plug 66a can be rotated between locking and release positions, it is received within the hole in the wear part and not within the spring. Integers (iii) and (iv) are therefore not disclosed. Integer (v) is also not disclosed for reasons indicated in relation to claim 1. Claim 13 is also therefore novel over D2.
Omnibus claim 19 is directed to a wear assembly substantially as described in the specification with reference to the drawings and therefore includes at least all the limitations of each of independent claims 1 and 6. Claim 19 is also therefore novel over D2.
Omnibus claim 20 is directed to a lock substantially as described in the specification with reference to the drawings and therefore includes at least all the limitations of claim 13. Claim 20 is also therefore novel over D2.
D5: US 5435084
Document D5 is entitled “Apparatus and method for attaching a digging tooth tip”. It describes a locking device comprising a pin that is inserted into aligned openings in the point (wear part) and the nose and secured therein using an eccentric locking head on the pin. While it is also directed to a locking arrangement for the wear point, it is an arrangement that appears quite different to that of the present invention. However according to Dr De Wit it still discloses all the integers of each of the independent claims.
D5 discloses a wear part 27 with a socket received over a nose 29, aligned holes 35 extending through upper and lower plates of the wear part, a lock for holding the wear part over the nose, the lock comprising a locking member in the form of a pin 39 and a lock block 41 that supports a resilient member 43. The pin has a lock ring 55 seated in a ring groove 57 and an eccentric head 45 with formations that engage in grooves in the lock block. The pin is inserted into the aligned openings in the wear part and the nose and then rotated to a locked position so that the eccentric head moves the lock block to compress the resilient member and thereby maintain the pin in the locked position.
Dr De Wit for the opponent submitted that either the resilient pad 43 or the lock ring 55 could correspond to the resilient member of claim 1.
The resilient pad certainly does not have a central passage through which the locking pin is received and therefore this limitation of the claims is not disclosed if I were to consider the resilient pad as the resilient member.
In relation to the lock ring, D5 is totally silent as to the material or construction of this ring.
Dr De Wit states “lock ring 55 may be of a metallic split ring design however it may also be a complete unbroken torus made from a more resilient material such as an elastomer”, while Mr Holland for the applicant states “the sole purpose of the lock ring 55 is to stop the pin from axial movement through the hole when it is installed” and “typically this was a split steel ring”.
If the lock ring was made of an elastomer it would clearly fulfil the requirement of the feature of the resilient member. If it is of the split ring design, Dr De Wit asserts “I also consider the lock ring 55 to be a resilient member as it springs back into shape after the pin 39 is driven past the main shaft”. The applicant has not disputed this interpretation. Clearly for the lock ring to be fitted into the ring groove, it would need to expand irrespective of which end of the pin it is inserted from. Mr Holland also states that when the pin is driven downward during removal, the ring would need to expand and slide over the head of the pin. This would clearly require the ring to have resilience. I therefore accept that the lock ring could be equated to the resilient member of the claims irrespective of whether it is made of an elastomer or a split metal ring.
In relation to the feature that the resilient member resists rotation of the locking member from the locking position, the opponent was of the view that the resilient member, lock ring and other components pressed tightly together would resist movement of the locking member from the locking position through frictional forces.
I am not convinced. Clearly the lock ring on its own does not impose any resistance to the rotational movement of the locking member; this function is performed by the resilient member 43. The function of the locking ring is to hold the locking member in the hole in the nose when the wear part is attached and not to hold the locking member in its locking position. Any frictional resistance that it may provide to the turning of the locking member from the locking position would be negligible and incidental and the skilled addressee would not consider it as being sufficient to prevent unwanted movement of the locking member from the locked position while in use.
I have earlier found that the movement referred to in the last line of claim 1 refers to rotational movement and does not include axial movement. Hence the opponent’s submission that the lock ring resists axial movement of the locking member, even if that is the case, still does not disclose feature (ix) of claims 1 and 3, feature (xv) of claim 6 and feature (v) of claim 13.
Independent claims 3, 6 and 13 also require that in the locking position, the lateral projection on the stem should be at least partially outside of the peripheral outline of the hole in the wear part such that the lateral projection is set between the nose and the wear part to prevent release of the lock. Dr De Wit is of the view that this feature is disclosed in D5 and refers to figure 5 as the relevant disclosure. However I am unable to see to anything in figure 5 to suggest that is indeed the case. On the contrary, figure 4 would suggest that the eccentric head 45 will be fully within the outline of the hole 35 in both the release and locking positions.
Claim 1-20 are novel over D5.
D7: US 6108950
D7 is entitled “Self-adjusting tooth/adapter connection system for material displacement apparatus”. It is clearly directed to a locking device for locking a wear part on to the nose of an excavator bucket.
The primary component of the locking device is a wedge shaped connector member 34 which is adapted to be inserted into aligned openings in the wear part and the nose. The wedge member has a longitudinal passage in which is received an elongate force exerting member 38, a coiled spring member (resilient member) 36 and a resilient key structure 40. The force exerting member has a lateral projection in the form of blocking flange 80. In use after the wedge member is inserted into the aligned openings, the force exerting member is rotated to bring the blocking flange partially outside the peripheral outline of the hole in the wear part such that it is set between the nose and the wear part to prevent release of the lock. The resilient key structure maintains the locking device in the locking position. The locking device therefore works somewhat similar to the present invention.
While the opponent admitted that the resilient key member is the feature of D7 that has been specifically designed to resist unwanted movement of the locking member from the locking position, they argued that the coiled spring member would also inherently provide resistance to the movement of the locking member as stated by Dr De Wit.
I am not convinced. The purpose of the spring member is to automatically tighten the fit of the wear part on the nose as the interfacing surfaces wear out. Any resistance to rotational movement of the force exerting member due to the axial force of the coiled spring will be incidental and minimal and there is nothing to suggest that this resistance is sufficient to prevent unwanted rotational movement of the force exerting member out of the locking position. That function is clearly provided by the resilient key structure and that integer does not have a central passage through which the locking member is received.
The feature of the resilient member having a central passage to receive the locking member and which also resists rotational movement of the locking member from the locking position is therefore not disclosed in D7. All of the claims are therefore novel over D7.
INVENTIVE STEP
The opponent has not filed any evidence in relation to inventive step and at the hearing stated that they do not wish to press this ground.
Mr Holland in his declaration has stated that he does not consider the invention to be obvious in light of the common general knowledge or in light of the prior art documents relied upon by the opponent.
I find that the claimed invention does not lack an inventive step.
CLARITY AND FAIR BASIS
The opponent did not provide any submissions in relation to these grounds but merely stated that they repeat the matters set out in their Statement of Grounds and Particulars (SGP).
Item 3.1 of the SGP lists 8 issues that the opponent considers make the claims unclear. I have considered these and there is nothing in there that cannot be easily resolved by reference to the body of the specification. I also note that neither Dr De Wit nor Mr Holland had any difficulty in determining the scope of the claims. I find that the claims are clear.
Item 3.2 of the SGP lists a few alleged fair basis issues with the claims. Having considered these I can find no basis to conclude that any of the claims lack fair basis. All the claims have a real and reasonably clear disclosure in the body of the specification and they are all therefore fairly based.
COSTS
The opponent has been wholly unsuccessful in this opposition. In such circumstances it is only appropriate that the applicant is entitled to costs. I award costs according to schedule 8 against the opponent.
R Subbarayan
Delegate of the Commissioner of Patents