Crimsafe Security Solutions Pty Ltd v Wamlez Pty Ltd - [2023] APO 30

IP AUSTRALIA

AUSTRALIAN PATENT OFFICE

Crimsafe Security Solutions Pty Ltd v Wamlez Pty Ltd [2023] APO 30

Patent Application: 2014200312

Title:Fastener Driver

Patent Applicant: Wamlez Pty Ltd

Opponent: Crimsafe Security Solutions Pty Ltd

Delegate: S.E. Howard

Decision Date: 19 May 2023

Hearing Date: 2 March 2023 via video conference

Catchwords: PATENTS – opposition under section 104 – amendments do not comply with s 102(1) – claims as proposed to be amended do not in substance fall within the scope of the claims before amendment – amendments do not comply with s 102(2)(a) – s 102(2)(b) – claims as proposed to be amended are clear and succinct – amendments are supported – s 40(3) – specification as proposed to be amended satisfies clear enough and complete enough disclosure requirements– s 40(2)(a) – r 5.23 documents not considered

Representation: Counsel for the applicant: Peter Creighton-Selvay
Patent attorney for the applicant: Ashley Dickson of Raven IP
Counsel for the opponent: Ben Fitzpatrick
Patent attorney for the opponent: Michael Finney of Bennett and Philp Lawyers

IP AUSTRALIA

AUSTRALIAN PATENT OFFICE

Patent Application: 2014200312

Title:Fastener Driver

Patent Applicant: Wamlez Pty Ltd

Date of Decision: 19 May 2023

DECISION

The opposition is successful. I refuse the amendments.

I award costs according to Schedule 8 against the Applicant, Wamlez Pty Ltd.

REASONS FOR DECISION

Background

This matter relates to patent application 2014200312 (‘the application’), filed in the name of Wamlez Pty Ltd (‘the Applicant’) on 17 January 2014 which claims, following an extension of time, an earliest priority date of 10 December 2012 from provisional application 2012905366.

Following two examination reports, the application was accepted on 27 July 2017 and advertised as such on 17 August 2017. The application was granted on 30 November 2017.
On 27 October 2020, Wynnes Patent and Trademark Attorneys Pty Ltd requested re-examination of the application. The application was subject to three adverse re-examination reports and one adverse voluntary amendment report before a non-adverse re-examination report was issued on 20 September 2021. Proposed amendments filed during the course of re-examination, including amendments filed on 11 January 2021, 17 February 2021, 19 May 2021 and 18 August 2021 were considered allowable and were advertised for opposition on 7 October 2021. It is important to note that all filed amendments included substitution of all the claim pages while the amendments filed on 19 May 2021 also included replacement of the description and drawings pages.
On 3 December 2021, Crimsafe Systems Solutions Pty Ltd (‘the Opponent’) filed a Notice of Opposition to the request to amend under section 104 of the Patents Act 1990 (‘the Act’). The Statement of Grounds and Particulars (‘SGP’) was filed on 22 December 2021. Evidence in Support (‘EIS’) was filed by 24 March 2022 and included a declaration by Rameshkumara Ramachandran (‘Ramachandran1’) dated 8 March 2022 with supporting Annexures A-C (hereinafter referred to as R1-A to R1-D, noting that there are two Annexure C). The Applicant filed Evidence in Answer on 23 May 2022 which included a declaration by Warren Taylor (‘Taylor’) dated 23 May 2022 with supporting Exhibits One to Seven (hereinafter referred to as T1-T7) and a declaration from Fred Davis (‘Davis’) dated 22 May 2022 with Exhibits One to Six (hereinafter referred to as D1-D6). The Opponent filed the Evidence in Reply (‘EIR’) on 27 June 2022 which included a second declaration from Rameshkumara Ramachandran (‘Ramachandran2’) dated 27 June 2022 supported by an Annexure A (hereinafter referred to as R2-A).
The Opponent’s written submissions were filed on 8 February 2023. The Applicant’s written submissions were filed on 15 February 2023. The matter was heard via video conference on 2 March 2023.

Standard of proof and onus

In their written submissions, the Opponent argued that the applicant for amendment bears the onus for establishing that the requirements of s 102 have been satisfied.[1] They referenced Weiss v Luft (1941) 65 CLR 528 which involved an appeal from a decision of the Deputy Commissioner of Patents refusing leave to amend a patent application. In Weiss v Luft at 539, the High Court found that “the applicant must show that the amendment [does not contravene the relevant limitations]”.
[1] Opponent’s written submissions [11].

In the Applicant’s written submissions and again at the hearing, they highlighted that the “Courts have repeatedly reiterated that ‘[t]he opponent bears the onus in relation to each ground of opposition’”.[2] The Applicant further argued that “the standard of proof is the balance of probabilities, the question of onus is unlikely to be determinative”,[3] for which, at the hearing, the Opponent agreed.
[2] Applicant’s written submissions [13]; quoting Merial, Inc v Intervet International BV (No 3)(2017) 122 IPR 128 at [13].
[3] Applicant’s written submissions [16].

To briefly address this matter, the present application is governed by the Act as amended by the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 (‘RTB Act’) as the application was filed after 15 April 2013. While the standard of proof that applies to section 104 opposition proceedings under the RTB Act has not been expressly stated in the Act, as reasoned by the delegate in Cytec Industries Inc v Nalco Company [2018] APO 4 at [18]: “it is a logical inference that the standard required is the balance of probabilities (consistent with the amendment to section 60(3A) that allows the Commissioner to refuse a patent application if satisfied on the balance of probabilities that a ground of opposition exists), and it is the opponent who carries the onus of proof.”

The Statement of Grounds and Particulars

In the SGP, the Opponent listed the following as grounds of opposition and pressed each at the hearing:

1.   As a result of the proposed amendments, the specification would claim or disclose matter that extends beyond that disclosed in the specification as filed (s 102(1)).
2.   After acceptance and as a result of the amendment, a claim of the specification would not in substance fall within the scope of the claims before amendment (Section 102(2)(a)).
3.   Whether or not as a result of the amendment the specification would comply with clear enough and complete enough disclosure requirements ((s 102(2)(b) and s40(2)(a))
4.   Whether or not as a result of the amendment the specification would comply with support requirements ((s 102(2)(b) and s40(3))
5.   Whether or not as a result of the amendment the specification would comply with clarity and succinctness requirements ((s 102(2)(b) and s40(3))

The Opponent provided particulars for each of the grounds.

Regulation 5.23 material

The Opponent wrote an email to me dated 27 February 2023 suggesting an intention to rely on “correspondence from Raven IP to IP Australia dated 11 January 2021, 17 February 2021 and 19 May 2021 in the course of the re-examination of Patent No. 2014200312” under r 5.23. Additionally, the Opponent expressed an intention to rely on patent application EP 1010900 (Shinto) at the hearing.
At the hearing, the Opponent was provided an opportunity to discuss why these were relevant to the matters being decided. However, throughout the course of the hearing it was apparent that I would not need to rely on the r 5.23 material provided. In particular, the correspondence related to prior amendments that were superseded by later amendments and therefore did not assist in deciding the matters related to the current s 104 opposition. Therefore, I decline to consult the material under r 5.23.
I also note that the Applicant filed two Australian court decisions under r 5.23. I am able to consider these without needing to invoke r 5.23.

The specification as filed

The specification as originally filed (‘the specification’) relates to tools, in particular tools that have “a work engaging and force exerting portion adapted to be inserted into a socket of a threaded fastener”.[4]
[4] Specification page 1 lines 6-7.

The specification identifies several disadvantages with prior art fasteners. Commonly used fasteners generally include a head portion, defining a driving engaging hole, and a threaded connecting portion. However, a problem with conventional fasteners is that the engaging hole can be enlarged and deformed from extended use.[5] A further problem with conventional fasteners such as screws, bolts and rivets, is most have readily available driver heads and, as such, can be tampered with. In certain circumstances this is undesirable.[6] Lastly, it is recognised that some craftsmen may struggle to apply the required torque to secure the fastener when working in difficult positions. Any insufficient or excessive pressure craftsmen may exert from these positions can often damage the recess in the fastener making it difficult to remove or secure.[7]
[5] Specification page 1.
[6] Specification pages 1-2.
[7] Specification page 2.
It is an object of the invention to address some of the disadvantages described above and to “provide a fastener driver with a work engaging and force exerting portion adapted to be inserted into a tamper proof threaded fastener”.[8]
[8] Specification page 2 lines 18-20.
The specification follows with a summary of the invention. This section largely mirrors the features of the claims, as will be provided below.
The specification then describes the preferred embodiments with reference to a number of figures. Figures 1-4 disclose a first embodiment comprised of a screw head (figure 4 below) with a drive recess including symmetrical shaped channels or pockets, and a corresponding driver 10 with a shaft 11 with either a non-circular cross section for engagement with a rotary tool or a handle (figure 2 below). The driver includes a tapered tip 14 with an irregular polygon cross-section with N lobes, where N matches the number of pockets in the screw head (being 5 in the embodiment of figures 1-4).[9]

[9] Specification page 8.

As evident in the figures above, the tip 14, dimensioned to fit a recess of a screw, includes five lobes 15 and grooves/channels 16 between each lobe 15. The depth of the grooves/channel 16 and lobes 15 decreases as it traverses from the end 18 toward the cylindrical shaft 20 until completely circumscribed by the cylindrical shaft 20. The fastener driver of the current invention further includes a hexagonal cross section 19 for use with a conventional driver tool and a rounded end 13 for ease of insertion into a driver. In transverse section, each groove/channel is substantially s-shaped in curvature. Each drive lobe 15 has a flat front face 21 inclined from the driver end 18 to a point 22 on the shaft 11 spaced from the end 18, as shown in figure 2 above. The lobes 15 are shaped such as to wedge between drive pockets when inserted into the screw head to prevent slipping of the fastener driver.[10]
[10] Specification pages 8-9.

Further embodiments are presented in figures 5-7. These embodiments include a socket 30 centrally located in the end 18 of the driver tip 14, as demonstrated below in figures 6 and 7. The fastener driver 40 would then be paired with a complementary pin in the screw for socket 30.[11]

[11] Specification pages 9-10.

Further embodiments include providing a shorter shank 19 of the driver, a driver with four lobes 15, the pin being located on the driver and the socket in the screw head, the cross-section of the socket/pin can being a pentagonal shape with slightly curved sides or a triangle, and the lobes 15 being formed for turning the driver in a clockwise or counter clockwise direction.[12]
[12] Specification pages 10-11.

The specification describes the advantages of the current invention as providing a tamper proof fastener for additional security through the use of a unique driver design. Additionally, the fastener driver is designed to mate tightly with a complementary screw.[13]

Nature of the amendments

[13] Specification page 11.

Claims at Acceptance

The claims as originally accepted on 24 July 2017 (‘claims as accepted’), comprised 20 claims of which claims 1 and 13 are independent. Independent claims 1 and 13 and appended claim 10 are reproduced below, the full accepted claim set can be found in ANNEXURE A.

Claim 1:

1. A driver for engagement with a complimentary [sic] head portion of a
tamper-proof fastener, the driver comprising:
a shank having a first end adapted for connecting to a driving device and
a second end spaced apart from the first end;
the second end comprising a driver bit having a cross-sectional shape corresponding to an irregular polygon including three or more lobes;
grooves separating adjacent lobes and curving along the driver bit away from the second end;
each lobe spaced substantially equally about a turning axis; and
each lobe having at least a flat leading face and at least a flat trailing face wherein the trailing face and the leading face are different lengths.

Claim 10:

A driver as claimed in any preceding claim, wherein each lobe of the driver bit comprises at least three angled facets adapted to engage with complementary shaped facets in the head portion of the tamper-proof fastener.

Claim 13:

13. In combination, a driver and a tamper-proof fastener:
the tamper-proof fastener having a threaded shank and a drive head integral with the shank, the drive head having an internally formed drive head portion with at least three recessed pockets in the drive head portion, each said pocket having at least three facets extending inwardly; and
the driver comprising a shank having a first end adapted for connecting to a
driving device and a second end spaced apart from the first end, the second end comprising a driver bit having a cross-sectional shape corresponding to an irregular polygon including three or more lobes with grooves separating adjacent lobes and curving along the driver bit away from the second end, each lobe spaced substantially equally about a turning axis, and each lobe having at least a flat leading face and at least a flat trailing face wherein the trailing face and the leading face are different lengths;
wherein the faces of the lobes of the driver bits engage the facets of the recessed pockets of the tamper-proof fastener with substantially mated engagement.

Amended Claims

The claims as proposed to be amended filed on 18 August 2021 (‘proposed claims’), supersede each of the amended claims filed prior to this date. The proposed claims comprise 24 claims of which claims 1 and 14 (which corresponds to accepted claim 13) are independent and are reproduced below. I have also provided the details of appended claims 9 and 23 as proposed to be amended below. For ease I have underlined and struck through the additions and deletions respectively made to the accepted claims to achieve the proposed claims. The full proposed claim set can be found in ANNEXURE B.

Claim 1:

1. A driver for engagement with a complimentary [sic] head portion of a tamperproof
fastener, the driver comprising:
a shank having a first end adapted for connecting to a driving device and a
second end spaced apart from the first end;
the second end comprising a driver bit having a cross-sectional shape corresponding to an irregular polygon including three or more lobes, the three or
more lobes extending from a substantially flat end of the driver bit;
grooves separating adjacent lobes and curving along the driver bit away from the second end;
each lobe spaced substantially equally about a turning axis; ~~and~~
~~each lobe having at least a flat leading face and at least a flat trailing face~~
each lobe has at least four angled facets, with the at least four angled facets
engaging with complementary shaped facets in each pocket of the tamper-proof
fastener, the angled facets are irregular sized and shaped facets, the angled facets include a leading facet, a trailing facet and a central facet positioned between the
leading and trailing facets, and the central facet has at least two angled facets; and
wherein the trailing ~~face~~ facet and the leading ~~face~~ facet are different lengths.

Claim 9

A driver as claimed in any one of the preceding claims, wherein the at least four angled facets of each lobe on the driver are adapted to only engage with the complementary shaped facets in the pockets of the tamper-proof fastener.

Claim 14

14. In combination, a driver and a tamper-proof fastener:
the tamper-proof fastener having a threaded shank and a drive head integral with the shank, the drive head having an internally formed drive head portion with at least three recessed pockets in the drive head portion, each said pocket ~~having at least three facets extending inwardly~~ having at least four angled facets extending inwardly with each facet formed as an uneven surface; and
the driver comprising a shank having a first end adapted for connecting to a
driving device and a second end spaced apart from the first end, the second end comprising a driver bit having a cross-sectional shape corresponding to an irregular polygon including three or more lobes with grooves separating adjacent lobes and curving along the driver bit away from the second end, each lobe extending from a substantially flat end of the driver bit, each lobe spaced substantially equally about a turning axis~~, and each lobe having at least a flat leading face and at least a flat trailing face~~ each lobe having at least four angled facets, the angled facets having irregular sized and shaped facets, the angled facets include a leading facet, a trailing facet and a central facet positioned between the leading and trailing facets, and the central facet has at least two angled facets, wherein the trailing ~~face~~ facet and the leading ~~face~~ facet are different lengths;
and wherein the ~~faces~~ angled facets of the lobes of the driver bits engage the angled facets of the recessed pockets of the tamper-proof fastener with substantially mated engagement.

Claim 23

The combination as claimed in any one of claims 14 to 22, wherein the at least four angled facets of each lobe on the driver are adapted to only engage with the complementary shaped facets in the pockets of the tamper-proof fastener.

Amended Description

The description is proposed to be amended according to amendment item 6 filed on 19 May 2021 (‘amended description’). I have provided details of the amended paragraphs below underlining where changes were made (excluding typographical corrections):

Page 9 lines 1-3:

As illustrated in Fig. 1, the five lobes 15 extend from the central flat end surface 18. As such the cross-sectional shape of the central flat end surface 18 is formed as an equilateral pentagon.

Page 9 lines 19-34:

As best illustrated in Figs. 2, 6 and 8 each drive lobe 15 has central faces 21, 21A separating a leading face and a trailing face. Each central face consists of at least two angled facets 21, 21A inclined from the end 18 of the driving tip 14. The combination of the central, leading and trailing faces form a drive lobe 15 with at least four angled facets. Each angled facet is formed as an uneven surface or each lobe 15 may be formed having irregular sized and shaped facets. The at least four angled facets of each drive lobe 15 are designed to be received within the complementary shaped facets in each pocket of the tamper-proof fastener recess. The design of the complementary lobes 15 and pockets ensures that tamper-proof screw recess can only be engaged by the driver 10, 40.

By virtue of the lobes 15 and the mating surfaces of the drive pockets of the tamper-proof screw recess, a particularly tight fit between them is achievable. Moreover, because the drive lobes 15 can wedge between adjacent drive pockets, slipping of the driver in the recess is resisted.

Page 11 lines 22-25:

As illustrated, the driver 40 has five drive lobes 15 which have central drive faces 21, 21A separating a leading face and a trailing face. Each central drive face consists of at least two angled facets 21, 21A inclined from the end 18 of the driving tip 14.

Amended Drawings

The drawings as proposed to be amended are according to amendment item 8 filed on the 19th of May 2021 to include item numbers 21 and 21A for the angled facets inclined from the end of the driving tip. An example of this is provided below in Fig. 6.

Relevant law

According to s 104(2), where an applicant or patentee asks for leave to amend a patent request, complete specification or any other filed document, the Commissioner must consider and deal with the request in accordance with the regulations. Pursuant to s 104(5), the Commissioner must not allow an amendment that is not allowable under s 102. Relevant to the current s 104 opposition, s 102 provides:
(1)   An amendment of a complete specification is not allowable if, as a result of the amendment, the specification would claim or disclose matter that extends beyond that disclosed in the following documents taken together:
(a)   the complete specification as filed;
(b)   other prescribed documents (if any),

(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), (3) or (3A).

Subsection 102(2A)(a) states that the “relevant time” means after the specification has been accepted. As the present specification had been accepted when the amendments were requested, the requirements of subsection 102(2) apply.

Regulation 10.2A identifies the prescribed documents that can be considered for determining whether an amendment is allowable. These include the abstract as well as corrections of errors under s 104(3), s 6(c) or inclusion of missing parts. None of these are applicable in the present case.

Under regulation 10.5 (2), if the Commissioner grants leave to amend notice of that fact must be published in the Official Journal if it relates to a patent request and complete specification which has been accepted under s 49 of the Act and the proposed amendments are in respect of the complete specification or the proposed amendments would materially alter the meaning or scope of the patent request or any other filed document. Regulation 10.5(3) allows for the Minister or another person to oppose allowance of an amendment published under regulation 10.5(2).
Regulation 10.6B(3) provides that the Commissioner may revoke grant of leave to amend under regulation 10.5 if leave to amend should not have been granted or it is reasonable to revoke the grant after taking into account all of the circumstances.
For the purposes of assessing amendments under s 102, construction of the specification can be guided by reference to H Lundbeck A/S v Alphapharm Pty Ltd [2009] FCAFC 70 (‘Lundbeck’) at [118]-[120]:
“…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, including the claims, 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… construction of a specification, including the claims, is ultimately a question of law for the Court… While the claims define the monopoly claimed in the words of the patentee's choosing, the specification should be read as a whole… It is not permissible to read into a claim an additional integer or limitation to vary or qualify the claim by reference to the body of the specification… However, terms in the claim which are unclear may be defined or clarified by reference to the body of the specification...”

In addition to the above, construction of the claims are guided by a presumption that each appended claim is of differing scope and, where possible, claims should be construed accordingly. This approach was adopted recently in Airco Fasteners Pty Ltd v Illinois Tool Works Inc [2023] FCAFC 7 at [56]-[57] (‘Airco Fasteners’) where an explicit limitation present in an appended claim supported the view that the broader independent claim did not itself possess said limitation.

Person skilled in the art

At the hearing, the parties provided submissions on which declarant’s evidence should be preferred. While neither party disputed the relevance of any information a person skilled in the art could derive from the figures for the purposes of assessing disclosure, the Applicant argued that the Opponent’s expert, Mr Ramachandran, appeared to have ignored the drawings which provide necessary context and disclosure of the invention. In response, the Opponent argued that the drawings in the specification as filed, as opposed to the annotated versions provided by the Applicant’s experts, do not assist in providing the necessary disclosure.

To the extent that it is necessary, where there is conflicting evidence, I will provide reasoning in the relevant parts of this decision for which declarant’s evidence is preferred.

Section 102(1) of the Act

Section 102 was amended by the RTB Act. The Explanatory Memorandum to the RTB Act at Item 29 clarified that s 102 requires an applicant to meet the disclosure requirements at the time of filing the complete specification:
“The item introduces a provision preventing amendment of a complete patent specification after filing to add new matter that would go beyond the disclosure contained in the specification at its filing date. An applicant would not be able to amend the specification to add any material that the hypothetical skilled person could not directly derive by reading the information in the specification as filed.”
In Commonwealth Scientific and Industrial Research Organisation v BASF Plant Science GmbH [2020] FCA 328; 151 IPR 181 (‘CSIRO v BASF’), Beach J concluded that the approach to be taken under section 102(1) should align with the approach in the UK and Europe.[14]
[14] CSIRO v BASF at [185].
Firstly, in CSIRO v BASF at [14], Beach J stated that a matter arising “as a result of the amendment” requires a comparison between the application as accepted and the application as proposed to be amended:
“Now it is not in doubt that the matter arising ‘as a result of the amendment’ is identified by identifying the difference between the application as accepted and the application as proposed to be amended. One then compares what is disclosed in the application as proposed to be amended, of course read as a whole, with what is disclosed in the application as filed. If as a result of the amendment proposed, the specification would disclose or claim matter that extends beyond that disclosed in the application as filed, the amendment is not allowable. Moreover, part of the analysis concerning construing the application as filed is to be undertaken through the eyes of a person skilled in the art at the relevant time.” (italics in original)
Upon reviewing UK authorities, Beach J in CSIRO v BASF at [202] referred to Richardson-Vicks Inc’s Patent [1995] RPC 568 where it was observed at [576]:
“I think the test of added matter is whether a skilled man would, upon looking at the amended specification, learn anything about the invention which he could not learn from the unamended specification.”
Further observations made by Beach J in CSIRO v BASF regarding section 102(1) have been conveniently summarised by the Delegate in 1414 Degrees Limited V Climate Change Technologies Pty Ltd [2022] APO 38 at [14]:
i.“the test is a strict one”;[15]
ii.“subject matter will be impermissibly added unless the matter is clearly and unambiguously disclosed in the application as filed”;[16]
iii.“the required disclosure may be express or implied … a patent applicant is not permitted to add by amendment matter simply because it would have been obvious to the skilled person”;[17] and
iv.“context is important. A patent applicant cannot extract features disclosed in one context and introduce them into a specification stripped of that context. So, the concept of intermediate generalisation as discussed in the UK authorities applies to s 102(1) in its construction and application.”[18]
[15] Ibid at [215].
[16] Ibid at [216].
[17] Ibid at [217].
[18] Ibid at [218].

"adapted to only engage”

In the Opponent’s written submissions at [23]-[31] they argued that claims 1-8, 10-22 and 24 do not comply with s 102(1) because proposed claim 9, and similarly proposed claim 23, introduces the integer (emphasis added):
“wherein the at least four angled facets of each lobe on the driver are adapted to only engage with the complementary shaped facets in the pockets of the tamper proof fastener”
The Opponent suggested that because claims 9 and 23 introduced the requirement that the facets of each lobe on the driver are adapted only to engage with complementary shaped facets in the tamper proof fastener this implied the same requirement would not be present in any prior claims.[19]
[19] Opponent’s written submissions [23]-[31].

At the hearing they further clarified that the assertion was based on a presumption against redundancy of the dependent claims. They referenced the Patents Manual and the recent Full Court decision Airco Fasteners Pty Ltd v Illinois Tool Works Inc [2023] FCAFC 7 (‘Airco Fasteners’). At [56]-[57] of Airco Fasteners, the Full Court referred to the limitations of claim 3 of the patent at issue to support their conclusion that claim 1, other than what was expressly stated, did not provide any limitation as to where the fuel metering valve was located within the fuel cell housing.
In their written submissions, the Applicant asserted that construction of claim 1 should not be driven by a dependent claim.[20] They also highlighted that, both before and after the amendment:
“…claim 1 required the diver claimed [sic] to engage ‘with a complementary head portion of a tamper-proof fastener’ but did not otherwise impose any requirements as to the nature of that engagement.”[21] (italics in original)
[20] Applicant’s written submissions [33].
[21] Applicant’s written submissions [34].
The Applicant further argued that:
“…it is unclear on what basis The Opponent asserts such drivers [having angled facets that are not adapted to only engage with a tamper proof fastener] as having previously been excluded from the ambit of claim 1.”[22]
[22] Applicant’s written submissions [35].
The Applicant also submitted that claim 10, as accepted, provided for a driver that has at least three angled facets that are adapted to engage with a tamper proof fastener; it was never a requirement that the angled facets on each lobe were adapted to only engage with complementary shaped facets of the tamper proof fasteners. Therefore, the “new subject matter” alleged by the Opponent was already the subject of claim 10 and cannot be said to be “as a result of the amendment” as required by s 102(1).[23]
[23] Applicant’s written submissions [36].

Consideration

Firstly, I note that proposed claim 1 and claim 1 as accepted use complimentary and complementary interchangeably. I consider ‘complimentary’ to be a typo that should read ‘complementary’ given the context of the specification.
The issue in question appears to be regarding the nature of the engagement between lobes on the driver and the facets in the pockets of the tamper-proof fastener. I have provided the relevant parts of proposed claim 1 below.
1. A driver for engagement with a complimentary head portion of a tamper-proof
fastener, the driver comprising…three or more lobes… each lobe has at least four angled facets, with the at least four angled facets engaging with complementary shaped facets in each pocket of the tamper-proof fastener…

It is evident that the subject of the claim is “a driver”. Moreover, given that it is well established that “for” places a limitation on what is claimed only to the extent that it must be suitable for the specified purpose, it is clear that the driver is “suitable for” engagement with a complementary head portion of a tamper-proof fastener.

There is not much guidance from the experts on how to construe “tamper-proof fastener”, or what features a driver must possess to suitably engage with a tamper-proof fastener. Some insight can be derived from the specification as filed; in particular, page 1 line 29 - page 2 line 3 states:
“… screws and bolts with various head designs and patterns such as slotted, Phillips and hex have been developed. These conventional fasteners, however, are easily operated on and therefore tampered with as driver heads with corresponding head designs and patterns are readily available. For special applications where the fasteners as applied need to be tamper-proof, fasteners with special head designs and driver tools with complementary head designs must be used.”
This indicates that a driver for a tamper-proof fastener should have a non-conventional driving tip design that engages with a complementarily-designed fastener and that conventional driver heads should not be able to engage with the fastener.
Proposed claim 1 requires that the angled facets on the lobes engage with complementary facets in each pocket of the tamper proof fastener. In regard to the term “complementary”, page 11 lines 20-24 states:
“The driver is designed to mate tightly with a complementary screw having sockets in which the lobes of the driver will snugly fit. The driver has been designed so that it will only mate with a particular complementary shaped screw. Therefore, a screw which has 3 sockets will only mate with a driver which has three lobes of complementary cross-sectional shape.”
In light of the above, the nature of the engagement between the lobes on the driver and the corresponding pockets of the tamper-proof fastener is that the lobes are sized and shaped such that their angular facets mate with, or are tightly received within, corresponding pockets in the tamper proof fastener. As such, I consider the angled facets of the lobes on the driver to be required to engage with a complementary tamper-proof fastener. I cannot see how the lobes of a driver head, even with a non-conventional design, could still be considered suitable for a tamper-proof fastener if it was also suitable for a conventional fastener. This is made evident given the lobes of the driver are sized and shaped such as to fit within complementary shaped facets in pockets of a tamper-proof fastener. In other words, if a tamper-proof fastener has a head portion that would engage with angled facets of each lobe on a driver, wherein the lobes of the driver could also drive other devices, then the fastener could not still be considered tamper-proof.
In addition to the above observations, the Opponent argued that the scope of proposed claim 1 should be read in the context of proposed claim 9 with a presumption against redundancy. Proposed claim 9 is provided below (emphasis added):
9. A driver as claimed in any one of the preceding claims, wherein the at least four angled facets of each lobe on the driver are adapted to only engage with the complementary shaped facets in the pockets of the tamper-proof fastener.

As highlighted by the Opponent, the main difference between proposed claim 1 and proposed claim 9 is the addition of ‘adapted to only engage’. As discussed above, it appears that claim 1 has this limitation in the context of the claim as a whole. Therefore, it would appear that claim 9 is redundant.
While I accept that a presumption against redundancy may assist in construing claims, I do not think such a presumption can be used to create ambiguity where there was none before. It is not unusual for an Applicant to use different language to discuss similar features purely out of an abundance of caution. To construe the angled facets of the lobes on the driver, in the context of proposed claim 1, as engaging with anything other than the tamper-proof fastener would be contrary to the purpose of a tamper-proof fastener.
Based on the scope of claim 1, and since neither party dispute that the feature in question was sufficiently disclosed in the specification as filed, it follows that the proposed claim 9 and similarly proposed claim 23 do not result in claims 1-8, 10-22 and 24 adding matter that would extend beyond the specification as filed.

“a leading facet, a trailing facet and a central facet positioned between the leading and trailing facets”

Proposed claim 1 and 14 provide for each lobe having “a leading facet, a trailing facet and a central facet positioned between the leading and trailing facets”.

From their submissions, it appears that the Opponent is arguing that that the specification as filed does not disclose a ‘central facet’. At the hearing, the Opponent argued the Applicant had relied on implied disclosure of a central facet, when there was no basis for this in the figures or description of the specification as filed. In support of this the Opponent referred to figure 8 as filed, which depicts one lobe/drive element labelled 15 and two groove/channels labelled 16 located either side of the lobe. They then directed attention to Exhibit T3 pages 7-8, suggesting Mr Taylor had labelled the substantially flat tip of the driver shown in figure 8, provided below in paragraph [56], as the “1^st Central Facet” and the entire lobe labelled as 15 in figure 8 as the “2^nd Central Facet”.[24] They argued that there was no reference in the specification as filed which taught that the lobe/drive element was a central facet. In support, they referred to page 9 lines 7-9 of the specification as filed, which states:
“Each drive lobe 15 has a flat front face 21 which is inclined from the end 18 of the driving tip 14 to a point 22.”
[24] Opponent’s written submissions [49]-[50].
Figure 8, as annotated by Mr Taylor in Exhibit T3 is provided below for reference.

In their written submissions, the Opponent criticised Dr Davis’s evidence, particularly the annotated version of figure 1, referred to as figure A in Exhibit D3, where he labelled the facets. They submitted that there was no reference to a “central facet end surface” or an item labelled “21a” in the drawings in the specification as filed. They also noted that the feature Dr Davis labelled as the “central facet end surface” was the flat front face on one of the lobes of the driver tip.[25] The Opponent further claimed that, in figure C of Exhibit D6, Dr Davis labelled an edge of the driving tip end 18, as one of the “angled facets on the central facet”; however, they argue, this feature was better described as a chamfer since it provides a transitional edge between two faces of an object.[26] Figure A of Exhibit D3 and figure C of Exhibit D6 are provided below:

[25] Opponent’s written submissions [55].
[26] Opponent’s written submissions [56].

In response, the Applicant highlighted claim 1 as accepted already required the driver to have a “trailing face” and a “leading face” and argued that “facet” should be construed as synonymous with “face”. They referenced the Macquarie Dictionary (8^th ed) which defines “facet” to mean:
1. One of the small plane polished surfaces of a cut gem
2. Aspect; phase: a facet of the mind.[27]
[27] Applicant’s written submissions [48].
The Applicant also highlighted that the specification as filed used “face” and “facet” interchangeably.[28] To support their assertion, they referred to claim 13 as accepted when compared with page 4 line 3 of the specification as filed. Claim 13 required “the faces of the lobes of the driver bits [to] engage the facets of the recessed pockets of the tamper-proof fastener with substantially mated engagement”, while page 4 line 3 of the specification as filed provided that each “lobe [was to be] formed by at least three angled facets” which were to “engage with the complementary shaped facets in the pockets of the tamper-proof fastener” (my emphasis added).[29] At the hearing the Applicant argued that a chamfer, or a transitional edge, can also be described as a surface or a face/facet.
[28] Applicant’s written submissions [63].
[29] Applicant’s written submissions [63].

At the hearing, the Opponent denied claim 13 as accepted is evidence “facet” is synonymous with “face”. They argued that a drafter would use different terms to attribute different meaning thus the specification teaches away from using them synonymously.
In their written response, the Applicant referred to page 3 lines 23-25 of the specification as filed which disclosed that “each lobe of the driver bit may comprise at least three angled facets extending from an end of the driver bit to a distance spaced from the end of the driver bit”. They argued that the three angled facets of each lobe are evident from the figures as filed. In particular, as Dr Davis identified in figure A of Exhibit D3 and figure C of Exhibit D6, there were three facets of each lobe which he had labelled either a “central facet”, a “leading facet” or a “trailing facet”.[30]
[30] Applicant’s written submissions [64]-[65].

The Applicant submitted that, as Dr Davis described, the “leading facet” is the “facet that is on the leading or frontal side of the lobe when it rotates to engage with the fastener”,[31] and the “trailing facet” as the “facet that is on a side of a moving object that follows behind. In the case of lobes of a driver bit, I understand this to mean a facet that is on the rear, following on behind, side of a rotating lobe”.[32] They then assert that the “central facet” is clearly the facet located between the leading and trailing facets.[33] They submitted that this was consistent with the evidence of Mr Taylor.[34]
[31] Applicant’s written submissions [67]; quoting D6 page 11.
[32] Applicant’s written submissions [68]; quoting D6 page 11.
[33] Applicant’s written submissions [69].
[34] Applicant’s written submissions [70]; citing T5 pages 7-8

In light of the above, the Applicant concluded that the specification as filed, in particular the figures, clearly and unambiguously disclosed that each lobe has a trailing facet, a central facet and a leading facet.[35]
[35] Applicant’s written submissions at [71].

Consideration

The first point of contention is whether or not “facet” is synonymous with “face”. I do not find the definition the Applicant provided from the Macquarie dictionary to be particularly helpful in the construing “facet” in the context of the current invention. The definition provided in the Macquarie dictionary does not relate more broadly to “faces” or “surfaces” in the art of fasteners or drivers.

The specification as filed states at page 2 line 27-30 (my emphasis added):
“…a driver bit having a turning axis and a lobe for each recessed pocket [in a head portion of a complimentary tamper-proof fastener], each said lobe spaced substantially equally about the turning axis and having a driving face which is a complementary fit with the recessed pocket of the tamper proof-proof fastener…”

The specification at page 3 lines 23-26 then states (my emphasis added):
“…each lobe of the driver bit may comprise at least three angled facets…wherein the angled facets engage with complementary shaped facets in the pockets of the tamper-proof fastener.”

It is apparent from these paragraphs that the driving “face” and the angled “facet” serve the same functional purpose; both are designed to engage with a complementary shaped recess or facet in a tamper-proof fastener.
Additionally, Mr Taylor agreed that “face” and “facet” were used interchangeably throughout the specification and proceeded to use the terms synonymously throughout Exhibit T3.[36] Similarly, Dr Davis described “face” as being synonymous with “facet” in Exhibit D6.[37]
[36] Exhibit T3 page 22 for example.
[37] Exhibit D6 page 8.
Given the above, I consider “face” and “facet” to be synonymous. These terms can be construed to include surfaces as defined by the claims.
With regards to whether “a trailing facet”, “a leading facet” and “a central facet” is clearly and unambiguously disclosed in the specification as filed, I note page 3 lines 23-26, provided above, provides for “each lobe of the driver bit may comprise at least three angled facets”. It is evident that each of the “at least three angled facets” of each lobe are just further defined and labelled as either a “a trailing facet”, “a leading facet” and “a central facet”. Furthermore, given the conclusion that “facet” and “face” are synonyms within the context of the current invention, there is no reason the “flat front face” described at page 9 lines 7-9 of the specification as filed could not equally be described as “a central facet”.
I conclude that the above amendment does not result in the specification claiming or disclosing matter that extends beyond that disclosed in the specification as filed and therefore complies with s 102(1).

“the central facet has at least two angled facets”

Proposed claim 1 and 14, and similarly proposed amendments to pages 9 and 11, provides for each lobe having a central facet that “has at least two angled facets”.

At the hearing the Opponent noted that the Applicant relied on the annotated figures provided by Dr Davis and Mr Taylor for disclosure of this feature, however submitted that the annotated features were not consistent with the description.
The Opponent first referenced page 3 lines 23 to 26 of the specification as filed, provided below:
“Preferably, each lobe of the driver bit may comprise at least three angled facets extending from an end of the driver bit to a distance spaced from the end of the driver bit, wherein the angled facets engage with complementary shaped facets in the pockets of the tamper-proof fastener.”

It appears, from their written submissions, that the Opponent is using this paragraph to construe the limitations and features of the “angled facets”. In particular, with reference to the above paragraph, they suggest that angled facets should extend longitudinally down from the end of the driver bit and should engage with the facets of the tamper-proof fastener; anything else cannot be considered an angled facet.[38] They further assert that, based on this, the substantially flat end of the driver bit cannot be considered to be, nor can it comprise, an angled facet since such “facets” cannot contribute to the rotational force transmission about the turning axis or be said to engage with facets in the pockets of the tamper-proof fastener in any functional way.[39]
[38] Opponent’s written submissions [35].
[39] Opponent’s written submissions [36]-[39]

The Opponent points out that both the Applicant’s experts consider the “central facet” to be the flat end of the driver bit. In particular, they refer to figure A of Exhibit D3 where Dr Davis labels figure 1 of the specification as filed to include reference to a “central facet” and a “central facet end surface”, none of which, the Opponent argued, was defined in the specification as filed.[40]
[40] Opponent’s written submissions [43].
Additionally, the Opponent refers to Dr Davis’s annotated version of figure 2, labelled as figure B in Exhibit D3. The Opponent notes that figure B includes a label “Three angled facets on each central facet (labelled 21 in the specification)”. The Opponent highlights that one of the arrows extending from this label and identifying the three angled facets points to an area below point 22 (as shown in figure 2), which, they argue, the facets should not extend beyond. In support of this, the Opponent refers to page 9 lines 7–9 of the specification as filed which states “Each drive lobe 15 has a flat front face 21 which is inclined from the end of 18 of the driving tip 14 to a point 22”.[41]
[41] Opponent’s written submissions [44].
At the hearing the Applicant clarified that the annotated figures are used to demonstrate what a person skilled in the art can derive from the figures. The Applicant’s written submissions argued that the existence of a central facet, which has two angled facets, is clearly evident from the figures contained in the specification as filed and that the paragraph the Opponent referred to was merely a preference for the configuration of the facets. In support, the Applicant referred to several annotated figures provided by Mr Taylor and Dr Davis, each of which are provided below.[42]
[42] Applicant’s written submissions [39]-[41], [46].
The Applicant referred to figure 8, as annotated by Mr Taylor in Exhibit T3.

Similarly, they referred to item 15 of figure 7 of the specification as filed, provided below.

Finally, they provided Dr Davis’s annotated version of figure 2, known as figure C of Exhibit D6.

The Applicant further argued that the construction of the term “facet” should not be restricted to the definition put forth by the Opponent as there is no requirement in the claims, or otherwise, that a facet must “extend longitudinally down” the shaft of the driver or that any of the facets must contribute to “rotational force transmissions about the turning axis”.[43] They referred to page 4, lines 25–26 of the specification which states that the facets in both the fastener and tool preferably “have surfaces which extend substantially planar”,[44] but also noted that page 3, line 28 of the specification as filed, and as amended, provides for “irregular sized and shaped facets” and, thus, facets need not be “substantially planar”.[45]
[43] Applicant’s written submissions [50], [56].
[44] Applicant’s written submissions [48].
[45] Applicant’s written submissions [49].

Notwithstanding the above, the Applicant asserts that, even if the construction provided by the Opponent is adopted, it is clear from figures 2, 7 and 8 that there is disclosure of angled facets extending longitudinally down from the end of the driver bit and that what has been labelled as the “1^st Central Facet”/“Central end facet” do not merely extend horizontally on the same plane as the driver tip. They argued that Mr Taylor’s observation in exhibit T5 at item 11(f) supported the proposition that the “1^st Central Facet”/“Central end facet” is present and “does not merely extend horizontally on the same plane of the driver tip, but also extends longitudinally” from the flat end of the driver”.[46]
[46] Applicant’s written submissions [52]-[53].

Additionally, the Applicant argues that the engagement between the “1^st Central Facet”/“Central end facet” and corresponding facets or pockets in the tamper-proof fastener does, in fact, perform a functional purpose.[47] As discussed in paragraph [58] of the Applicant’s written submissions:
“… the evidence of Dr Davis makes clear that the ‘1st Central Facet’/‘Central end facet’ plays ‘a useful role in guiding engagement’ and is an ‘important part in the geometry that transmits torque’. As Dr Davis has explained, ‘it is the complete geometry of the driver tip that is involved in engaging or not engaging with the fastener (not just the sides of the driver tip)’. Similarly, the evidence of Mr Taylor [at item 11(g) of Exhibit T5] is that ‘1st Central Facet’/‘Central end facet’ does ‘provide rotational force transmission about the turning axis’ and that the ‘end of the driver bit’ does ‘play a part in the rotational force transmission’.”
[47] Applicant’s written submissions [57].

Lastly, the Applicant responded to submissions regarding whether a facet identified by Dr Davis could be considered a facet if it extended beyond point 22. The Applicant pointed out that lines 7–9 of page 9 of the specification as filed, as referenced by the Opponent, was referring to the so-called “Central down-length facet” identified in the evidence and not the “1^st Central Facet”/“Central end facet”. Additionally, they highlighted that the paragraph cited does not state that the flat front face terminates at point 22; rather that the flat front face is to incline to point 22.[48]
[48] Applicant’s written submissions [60].

Consideration

It is clear that the passages cited by the Opponent highlight that there is only explicit written disclosure of “at least three angled facets extending from the end of the driver bit”[49], with no explicit mention of a central facet, or a flat front face, having “at least two angled facets”.[50] For example, page 9 lines 7-9 of the specification as filed, cited by the Opponent, states that “Each drive lobe 15 has a flat front face 21 which is inclined from the end 18 of the driving tip 14 to a point 22”. It seems clear from this that the only written disclosure of “angled facets” are those that extend from the end of the driving tip. Furthermore, Mr Taylor’s submissions at Exhibit T5 item 11(f) do not suggest the “1^st Central Facet”/“Central end facet” exists; he was, instead, referring to “angled facets”.
[49] See specification pages 3 and 9.
[50] See specification page 9.
Additionally, Mr Taylor’s submissions at item 11(g) of Exhibit T5 do not suggest that the end of the driver bit plays a role in the rotational force transmissions; in fact, he suggests that if the substantially flat surface 18 was replaced with angled facets this would provide rotational force transmission about the turning axis, not that it does at present.
With the above in mind, I do not think the “1^st Central Facet” labelled in figure 8, as annotated by Mr Taylor in Exhibit T3, can be described as one of the angled facets of the central facet, as put forth by the Applicant. There is neither a clear and unambiguous disclosure of an angle to the end face nor, assuming such a surface existed, that the end face is only part the central facet since such a surface could equally be described as a facet of the trailing facet or the leading facet. Again, there is only explicit disclosure of angled facets and a flat front face 21 (or central facet) that extend or incline from the flat end of the driver and,[51] as Mr Taylor stated, the angled facets are not located on the flat end of the driver (item 18).[52]
[51] Specification as filed page 9.
[52] Exhibit T5 item 11(f).
I conclude that the proposed amendment to claims 1-24, and similarly proposed amendments to pages 9 and 11, do not comply with the requirements of s 102(1) as there is not clear and unambiguous disclosure of “the central facet has at least two angled facets”.

“the trailing facet and the leading facet are different lengths”

Proposed claim 1 and 14 provides for each lobe that “the trailing facet and the leading facet are different lengths”.

The Opponent argued, in their written submissions, that this feature would extend to matter not disclosed in the specification as filed. They referred to page 8 lines 24 to 29 of the specification as filed to argue that there is only disclosure of the angled facets starting at the same point and ending at the same point, therefore they cannot be of different lengths.[53] Page 8 lines 24 to 29 of the specification as filed states:
“The tip 14 includes five lobes 15 extending from the end 18 and down the tip 14 a distance which substantially corresponds to the depth of the drive recess in the screw head. As the tip 14 moves from the end 18 the depth of the groves 16 and lobes 15 decreases such that as the tip 14 approaches the cylindrical body 20 of the driver 10 the tip 14 decreases in depth to a point where the tip 14 is completely circumscribed by the cylindrical shaft 20”
[53] Opponent’s written submissions [60].
They further argued that, in figure C of Exhibit D3, Dr Davis appears to have labelled the curved edges of each respective facet for the purposes of assessing length rather than taking the actual length of each facet; submitting that each facet is a surface comprised of multiple edges.[54]
[54] Opponent’s written submissions [61].

In response the Applicant first submits that the requirement that “the trailing facet and the leading facets are different lengths” cannot be said to arise “as a result of the amendment”. They argued that claim 1 and 13 as accepted already provided for “the trailing face and the leading face are different lengths” and “face” and “facet” are interchangeable synonyms.[55]
[55] Applicant’s written submissions [75]-[76].
Secondly, the Applicant argued that the specification as filed clearly disclosed that the leading and trailing facets have different lengths. They referred to Exhibit D6, where Dr Davis explained that when the length of the facets is measured longitudinally, the difference in length results from the fact that the trailing facets have greater curvature along their length than the leading facets, as demonstrated in figure D of Exhibit D6 provided below.[56]

[56] Applicant’s written submissions [77]-[78].

Furthermore, the Applicant noted that the specification as filed did not require the facets to start and finish at the same points. More specifically, page 3 lines 26-28 of the specification as filed disclosed that ‘[e]ach angled facet may be formed as an uneven surface or each lobe may be formed having irregular sized and shaped facets’.[57] (my emphasis)
[57] Applicant’s written submissions [79].

100.Lastly, the Applicant argued that, even if they were to measure the length of the leading and trailing facets having regard to the length of surface extending outwardly from the centre of the end of the driver, as can be observed from figures 1 and 5 of the specification as filed, the length of the trailing facet is longer than the length of the leading facet.[58]
[58] Applicant’s written submissions [80].

Consideration

101.As discussed previously, “face” and “facet” are considered synonymous within the context of the specification as filed. Therefore, the proposed amendment cannot be considered to be “as a result of the amendment” as required under s 102(1). Regardless, I consider there to be clear and unambiguous disclosure of the trailing facet and the leading facet being different lengths. The specification as filed clearly allows for the facets of each lobe to be irregularly sized or shaped and have uneven surfaces;[59] a person skilled in the art would understand this to include facets that may have different lengths. Given the context provided by page 3 lines 26-28, a person skilled in the art would understand length to be referring to a length of a, potentially, uneven surface of an angled facet extending along the driver.
[59] Specification as filed page 3.
102.Therefore, the above proposed amendment does not contravene the requirements of s 102(1).

“the three or more lobes extending from a substantially flat end of the driver bit”

103.As a result of the amendments, proposed claim 1 and 14 includes “the three or more lobes extending from a substantially flat end of the driver bit”.

104.The Opponent’s written submissions argued that this feature introduces new subject matter contrary to s 102(1). Firstly, they claim that the specification as filed makes no reference to the number of lobes extending from a substantially flat end of the driver bit. Secondly, the Opponent noted that the specification as filed requires lobes of the driver bit to be “extending from an end of the driver bit to a distance spaced from the end of the driver bit”.[60] They argued that, since the proposed claim does not limit the scope to lobes that extend from an end of the driver bit to a distance spaced from the end of driver bit, the scope includes lobes extending beyond that distance, thus including new subject matter.[61]
[60] Opponent’s written submissions [65].
[61] Opponent’s written submissions [63]-[67].

105.In written submissions, the Applicant highlighted that the Opponent appears to concede that the specification as filed does, in fact, disclose lobes “extending from an end of the driver”. Thus, the Applicant was of the impression that the only feature in dispute was whether the end of the driver from which the lobes extend could be “substantially flat”. They pointed to figures 2 and 20 and page 8, lines 33-34 of the specification as filed as evidence of this disclosure.[62] Page 8, lines 33-34 states:
[62] Applicant’s written submissions [82].
“As shown in figures 1 and 2 the end 18 of the driver 10 is formed as a substantially flat surface and defines the start of the tip 14”.

Consideration

106.Firstly, I observe that the specification as filed at page 4 lines 2-4 states:
“…each said lobe formed by at least three angled facets extending from an end of the driver bit to a distance spaced from the end of the driver bit…”
107.The above, in combination with page 8 lines 33-34, as pointed out by the Applicant, provides clear and unambiguous disclosure of “the three or more lobes extending from a substantially flat end of the driver bit”. Furthermore, the fact that proposed claim 1 does not require the lobes to extend “from an end of the driver bit to a distance spaced from the end of the driver bit” does not result in disclosure of matter that extends beyond the disclosure of the specification as filed; particularly given “a distance spaced from the end of the driver bit” may encompass a broad range of distances.
108.In conclusion, the above proposed amendment does not contravene the requirements of s 102(1).

“each lobe has at least four angled facets”

109.Proposed claim 1 and 14 introduces the feature that “each lobe has at least four angled facets, with the at least four angled facets engaging with complementary shaped facets in each pocket of the tamper-proof fastener”. In written submissions, the Opponent argued that there is no disclosure in the specification as filed that each lobe is required to have at least four angled facets and that there is not sufficient disclosure of a fourth facet.[63]
[63] Opponent’s written submissions [70].

110.In their written response, the Applicant pointed out that not only did the Opponent agree at [68] of their written submissions that the specification as filed disclosed having “at least three facets”, but that it is plainly obvious that “at least four facets” is a subset of that disclosure. They further argued that such disclosure is also evident from the figures, as discussed above. Thus, they conclude, that this amendment cannot be considered to “extend beyond that disclosed” as required under s 102(1).[64]
[64] Applicant’s written submissions [83].

Consideration

111.In the specification as filed, both page 3 lines 24-25 and page 4 lines 2-4 describe lobes formed by at least three angled facets and prima facie “at least four angled facets” is a narrowing of the “at least three angled facets”. However, as discussed previously, there is only clear and unambiguous disclosure of each lobe having just three angled facets that extend from an end of the driver; therefore, the amendment requiring there to be four or more angled facets per lobe, would extend to combinations beyond those contemplated by the specification as filed.
112.In conclusion the proposed amendment to claims 1-24 does not comply with s 102(1) for the reasons provided above.

Conclusion

113.Claims 1-24 and amended pages 9 and 11 do not comply with s 102(1) as the following matters introduced by amendment would extend beyond that disclosed in the complete specification as filed: “each lobe has at least four angled facets”, and “the central facet has at least two angled facets”. The Opposition is successful on this ground.

Section 102(2)(a) of the Act

114.Relevant principles applying to s 102(2)(a) are conveniently laid out by Yates J in Bristol-Myers Squibb Company v Apotex Pty Ltd [2010] FCA 814 at [40]:
“Consideration of the prohibition in s 102(2)(a) requires a comparison between the proposed new claims and the claims of the specification immediately before amendment. Once again the prohibition is conditioned on a state of affairs existing as a result of the amendment, namely that a claim would not in substance fall within the scope of the claims before amendment. Thus the identification of the amendment is, once again, an important first step. Moreover, the reference to “within the scope of the claims” before amendment is significant. The comparison is not between a particular amended claim and that claim before amendment. The expression “within the scope of the claims” directs attention to all the claims. For this reason a practical test is to ask whether an amendment makes anything an infringement which would not have been an infringement before the amendment…”

"adapted to only engage”

115.Similarly to the submissions provided with regards to s 102(1), the Opponent argued that as a result of proposed claim 9 and 23, claims 1-8, 10-22 and 24 would include combinations where the angled facets of each lobe on the driver are not adapted to only engage with the complementary shaped facets in the pockets of the tamper-proof fasteners, thus falling outside the scope of the claims as accepted.[65]
[65] Opponent’s written submissions [103]-[104].

116.The Applicant relied on their submissions provided above in relation to s 102(1). To briefly summarise, the Applicant argued that claim 1 as accepted did not impose a requirement as to the nature of the engagement between the driver and the tamper-proof fastener. They further argued that this feature cannot be said to be “as a result of the amendment” since claim 10, with similar language as that of proposed claim 1, never required that the angled facets on each lobe were adapted only to engage with complementary shaped facets of the tamper proof-fastener.

Consideration

117.For the reasons discussed in relation to s 102(1), proposed claims 9 and 14 do not meaningfully expand the scope of claims 1-8, 10-22 and 22. Therefore, claims 1-8, 10-22 and 23 do not contravene s 102(2)(a) as a result of the above amendment.

“the central facet has at least two angled facets”

118.Relying on similar submissions to those provided for s 102(1), the Opponent argued that each lobe having a central facet that “has at least two angled facets” would not fall within the scope of the claims as accepted.[66]
[66] Opponent’s written submissions [109]-[110].

119.The Applicant responded that claim 1 as accepted did not require the driver to have a central facet comprising two or more facets, therefore this amendment narrows the scope of claim 1 thus falling within the scope of the claims as accepted.[67]
[67] Applicant’s written submissions [102].

Consideration

120.I agree with the Applicant. The amendment, described above, narrows the scope of the claim to further define the features of one of the “three or more lobes” as provided for in accepted claims 1 and 13. It follows that the amendment does not makes anything an infringement which would not have been an infringement before the amendment and, therefore, satisfies s 102(2)(a).

“the trailing facet and the leading facet are different lengths”

121.The Opponent argued that, as a result of the amendments, proposed claim 1 encompasses driver bits with each lobe having a trailing facet and a leading facet with different length which is not within the scope of the accepted claims.[68]
[68] Opponent’s written submissions [113].

122.Relying on their submissions for s 102(1), the Applicant disagreed with this assertion. They pointed out that “face” and “facet” are used interchangeably in the specification as filed, therefore this requirement was already present in the claims as accepted.[69]
[69] Applicant’s written submissions [103].

Consideration

123.As discussed previously, it is evident that “face” and “facet” can be used interchangeably. Therefore, as a result of the above amendment, the scope of proposed claim 1 remains the same when compared with claim 1 as accepted and thus does not contravene the requirements of s 102(2)(a). Similar reasoning can be applied to claim 14 and any appended claims.

“the three or more lobes extending from a substantially flat end of the driver bit”

124.The Opponent submitted that, as a result of the amendments, proposed claim 1 encompasses driver bits with each lobe having three or more lobes extending from a substantially flat end of the driver bit, which was not within the scope of claim 1 as accepted.[70] They argue similar considerations apply to proposed claim 14 and any appended claims.
[70] Opponent’s written submissions [115].

125.The Applicant highlighted that claim 1 as accepted encompassed a driver having “three or more lobes”, but did not require that the lobes extend from a specified location, or that the end of the driver be “substantially flat”. They argue that these new limitations narrow the scope and therefore do not contravene the requirements of s 102(2)(a).[71]
[71] Applicant’s written submissions [104].

Consideration

126.It is evident that claim 1 as accepted already required three or more lobes. I agree with the Applicant that there was no requirement that the lobes extend from a substantially flat end of the driver. I consider this amendment to narrow the scope of proposed claim 1 to further define the features of the three or more lobes and the end of the driver. Therefore, I consider the amended feature to be “within the scope of the claim” before amendment and thus complies with s 102(2)(a).

“each lobe has at least four angled facets”

127.Proposed claim 1 replaces the integer “and each lobe having at least a flat leading face and a flat trailing face and the leading face…” with “each lobe has at least four angled facets…”.

128.The Opponent’s written submissions argued that, as a result of the amendment, the requirement for a flat leading face and a flat trailing face has been removed, thus broadening the scope to include driver bits that do not have a flat leading face and/or a flat trailing face.[72]
[72] Opponent’s written submissions [101].
129.In their written submissions, the Applicant conceded that the effect of the proposed amendment is to remove the requirement. They accept that this amendment contravenes the requirements of s 102(2)(a).[73]
[73] Applicant’s written submissions [99]-[100].

Consideration

130.I agree with the parties that the amendment broadens the scope of proposed claim 1 to include leading and trailing faces/facets that are not flat. For the same reasons, claims 2-24 also contravene the requirements of s 102(2)(a).

Conclusion

131.Claims 1-24 do not comply with s 102(2)(a) due to the removal of the requirement for each lobe to have a flat trailing face and a flat leading face. The Opposition is successful on this ground.

Section 102(2)(b) of the Act

Clarity

132.As provided for in s40(3) of the Act, the claims must be clear and succinct. Therefore, under s 102(2)(b) I must determine if, “as a result of the amendment”, the claims are unclear.

133.As noted in Flexible Steel Lacing Company v Beltreco Ltd [2000] FCA 890 at [81]; [2000] FCA 890; (2001) 49 IPR 331 at 349 (and cited with approval in Austal Ships Sales Pty Ltd v Stena Rederi Aktiebolag [2008] FCAFC 121; (2008) 77 IPR 229) (‘Austal Ships’):

“Lack of precise definition in claims is not fatal to their validity, so long as they provide a workable standard suitable to the intended use… The consideration is whether, on any reasonable view, the claim has meaning… In determining this, the expressions in question must be understood in a practical, common sense manner… Absurd constructions should be avoided… and mere technicalities should not defeat the grant of protection…”

134.In particular, the claims are considered to provide a workable standard if a third party could, without difficulty, determine whether an act falls within the scope of the claim; see Monsanto Company v commissioner of Patents (1974) 48 ALJR 59 (‘Monsanto’) at 60-61:

“There will, I think, in the present case be no difficulty in a third party ascertaining whether or not what he proposes to do falls within the ambit of the claim… For these reasons I do not regard the use of the adjective “substantial” as giving rise to any uncertainty.”

“a leading facet, a trailing facet and a central facet”

135.The Opponent argued in their written submissions that proposed claim 1 and 14 was unclear as it is not understood what a leading facet, a trailing facet or a central facet refer to, or how a person skilled in the art would practically apply these features. They also pointed out that there is no reference to these features in the specification as filed.[74]
[74] Opponent’s written submissions [77].

136.In their written response, the Applicant submitted that a) each of these terms has a workable meaning, b) this feature cannot be considered “as a result of the amendment” since claim 1 as accepted already required a trailing face and a leading face and c) amended page 9, starting at line 19, of the specification clarifies that “each lobe 15 has central faces 21, 21A separating a leading face and a trailing face”.[75]
[75] Applicant’s written submissions [88].
137.It is clear that this amended feature is referring to three of the at least four angled facets on each lobe, further labelled as either a leading, trailing or central facet.
138.The amended feature does not result in any ambiguity.

“central facet has at least two angled facets”

139.Proposed claims 1 and 14 require that “the central facet has at least two angled facets”. In written submissions, the Opponent argued that it is unclear how one central facet can have two angled facets and that no guidance could be found in the specification as filed.

140.With reference to page 3 lines 23 to 26 of the specification as filed, the Opponent construed “angled facets” to include those that extend longitudinally down from the end of the driver bit and, as clarified at the hearing, those that engage with complementary shaped facets in the pockets of the tamper-proof fastener.[76] They argued that, since the end of the driver bit plays no part in the rotational force transmission about the turning axis, the angled facets do not comprise the end of the driver bit itself.[77]
[76] Opponent’s written submissions [79]-[80].
[77] Opponent’s written submissions [82].

141.In written submissions, the Applicant argued the specification as filed clearly disclosed at least two angled facets on the central facet. They suggest further clarity can be derived from amended page 9, starting from line 19, which explains “[e]ach central face consists of at least two angled facets 21, 21A inclined from the end of 18 of the driving tip 14”.[78]
[78] Applicant’s written submissions [89].
142.Regardless of whether there is sufficient disclosure of this feature, the meaning and scope of the amendment is clear. This feature requires that the central facet, or face, is made up of at least two angled facets.
143.The amended feature does not cause a lack of clarity.

“the trailing facet and the leading facet are different lengths”

144.In the Opponent’s written submissions, they argued that proposed claim 1 and 14 is unclear due to the feature “the trailing facet and the leading facet are different lengths”. They argued that it is unclear what trailing and leading facets are and, further, that it is unclear how this would be measured, or how differing lengths could be achieved in practice.[79]
[79] Opponent’s written submissions [83]-[85].

145.In their written response, the Applicant argued that this feature is clear enough to provide a “workable standard”. Furthermore, they submit that this feature was not introduced “as a result of the amendment” since claim 1 as accepted required “the trailing face and the leading face are different lengths”. Lastly, they assert there is no difficulty in calculating the different lengths, and the fact that length may be calculated either horizontally or longitudinally does not render the claim unclear.[80]
[80] Applicant’s written submissions [90].
146.Given “face” and “facet” are synonymous, as discussed previously, the amendment cannot be said to be “as a result of the amendment”. Regardless, this amended feature is plainly clear. It is referring to the trailing facet and leading facet being different lengths. In context is clear that the length is referring to a length of the uneven surface of an angled facet extending along the driver.
147.The amended feature does not result in a lack of clarity.

“each lobe extending from a substantially flat end of the driver bit”

148.In the Opponent’s written submissions, they argued that proposed claim 1 and 14 is ambiguous as it is unclear whether the feature of “each lobe extending from a substantially flat end of the driver bit” includes the lobes extending from either end of the driver bit.[81]
[81] Opponent’s written submissions [92].

149.The Applicant submitted that it is clear that the lobes are not part of the substantially flat end of the driver bit, but instead extend from it.[82]
[82] Applicant’s written submissions [92].
150.According to proposed claim 1, the driver has a first end and a second end wherein the second end comprising the lobes extending from a substantially flat end of the driver bit. It is clear that this feature is just referring to the lobes located on the second end of the driver and extending from, but not a part of, the substantially flat end of the driver.
151.The amendment described above does not result in a lack of clarity.

Clarity of claim 13 and 24

152.The Opponent submitted that claims 13 and 24 are unclear as there is not antecedent basis for “the central flat end surface extending from each lobe”. At the hearing I asked how this created ambiguity in the claims. They responded that the ambiguity arises from there being no proper antecedent basis for this feature when appended to claim 4.

153.In response the Applicant pointed out that the Opponent’s expert Mr Ramachandran did not indicate any difficulty in understanding the scope of these claims.[83]
[83] Applicant’s written submissions [90].
154.Proposed claim 13 is provided below (similar wording is used in proposed claim 24):
“A driver as claimed in claim 4, wherein the central flat end surface
extending from each lobe is formed having a cross-sectional shape of an
equilateral pentagon.”
155.It is not initially apparent from the claims what “the central flat end surface” is referring to; there is no prior discussion of this a feature. However, in context it appears that “the central flat end surface” is intended to refer to the substantially flat end of the driver bit, as defined in proposed claim 1. This is evident from page 9 lines 1-3 of the amended specification which labels item 18 as the “central flat end surface”. Regardless of the amended specification, it is apparent that the “substantially flat end of the driver bit” of proposed claim 1 performs the same function and has the same features as the “central flat end surface” of proposed claim 13.
156.Claims 13 and 24 are clear for the reasons provided above.

Conclusion

157.Claims 1-24 do not result in ambiguity and thus comply with s40(3) under s 102(2)(b). The Opposition is unsuccessful on this ground.

Clear enough and complete enough

158.The relevant question to ask here in relation to s 102(2)(b) and s 40(2)(a) is whether, “as a result of the amendment”, the specification would not describe the invention in a clear enough or complete enough manner for the invention to be performed by a person skilled in the relevant art.
159.The Opponent used similar reasoning as that provided above in s 102(1) to argue that, as a result of proposed claim 9 and 23, there is not clear enough and complete enough disclosure for claims 1-8, 10-22 and 24. They argued that the specification does not disclose drivers and combinations where the angled facets of each lobe on the driver are not “adapted to only engage with complimentary shaped facets of the pockets of the tamper proof fastener” in a clear enough and complete manner.[84]

[84] Opponent’s written submissions [93]-[95].
160.The Applicant relied on their previous submissions in response. They further argue that Mr Ramachandran did not give any evidence that he would have any difficulty producing something within each claim by reason of insertion of new claim 9 and 23.[85]
[85] Applicant’s written submissions [93]-[94].
161.As discussed in relation to s 102(1), proposed claim 1, and for similar reasons proposed claim 14, already required this integer. Since both parties agreed this feature was sufficiently disclosed in the specification as filed and the specification as amended, I consider there is clear enough and complete enough disclosure of the features in claims 1-8, 10-22 and 24.
162.Claims 1-24 comply with s40(2)(a) under s 102(2)(b). The Opposition is unsuccessful on this ground.

Support

163.The relevant question to ask here in relation to s 102(2)(b) and s 40(3) is whether, “as a result of the amendment”, the claims would not be fully supported by matter disclosed in the description.
164.The Opponent again relied on their submissions above to argue that proposed claims 1-8, 10-13, 14-22 and 24 lack support in light of proposed claims 9 and 23. The Applicant also relied on previous submissions to respond to this assertion.
165.For the reasons already discussed, 1-8, 10-13, 14-22 and 24 are sufficiently supported and comply with s40(3) under s 102(2)(b). This ground of opposition has not been successful.

CONCLUSION

166.The proposed amendments contravene subsection 102(1) and 102(2)(a) and are therefore not allowable. I must not allow the amendments pursuant to s 104(5) and I revoke the grant of leave to amend pursuant to r 10.6B(3)(a).

COSTS

167.The opposition is successful. The Applicant made submissions that a variation of costs should be awarded since they had conceded that the proposed amendments contravene s 102(2)(a). However, I do not see how a concession that effectively says that an opposition would be successful provides a basis for such a variation. I will award costs, according to Schedule 8, against the Applicant, Wamlez Pty Ltd.

S.E. Howard
Delegate of the Commissioner of Patents

ANNEXURE A: CLAIMS AT ACCEPTANCE

1. A driver for engagement with a complimentary head portion of a
tamper-proof fastener, the driver comprising:
a shank having a first end adapted for connecting to a driving device and a second end spaced apart from the first end;
the second end comprising a driver bit having a cross-sectional shape corresponding to an irregular polygon including three or more lobes;
grooves separating adjacent lobes and curving along the driver bit away from the second end;
each lobe spaced substantially equally about a turning axis; and
each lobe having at least a flat leading face and at least a flat trailing face wherein the trailing face and the leading face are different lengths.

2. A driver as claimed in claim 1, wherein the driver bit has three lobes spaced substantially equally about the turning axis for engagement with the tamper-proof fastener having three recessed pockets in the head portion.

3. A driver as claimed in claim 1, wherein the driver bit has four lobes spaced substantially equally about the turning axis for engagement with the tamper-proof fastener having four recessed pockets in the head portion.

4. A driver as claimed in claim 1, wherein the driver bit has five lobes spaced substantially equally about the turning axis for engagement with the tamper-proof fastener having five recessed pockets in the head portion

5. A driver as claimed in any one of claims 1 to 4, wherein the driver bit includes a centrally located socket formed in an end of the driver bit which is adapted to snugly receive a complementary pin centrally located within the head portion of the tamper-proof fastener.

6. A driver as claimed in any one of claims 1 to 4, wherein the driver bit includes a centrally located pin formed in an end of the driver bit which is adapted to snugly seat in a complementary socket centrally located within the head portion of the tamper-proof fastener.

7. A driver as claimed in claim 5 or claim 6 wherein the pin and socket have a polygon cross-section.

8. A driver as claimed in any of claims 1 to 7, wherein the lobes are formed turning in a clockwise direction about the turning axis.

9. A driver as claimed in any of claims 1 to 7, wherein, the lobes are formed turning in a counter-clockwise direction about the turning axis.

10. A driver as claimed in any preceding claim, wherein each lobe of the driver bit comprises at least three angled facets adapted to engage with complementary shaped facets in the head portion of the tamper-proof fastener.

11. A driver as claimed in any preceding claim, wherein each said lobe is spaced substantially equally about the turning axis.

12. A driver as claimed in any preceding claim, wherein the driver is fabricated from steel or stainless steel.

13. In combination, a driver and a tamper-proof fastener:
the tamper-proof fastener having a threaded shank and a drive head integral with the shank, the drive head having an internally formed drive head portion with at least three recessed pockets in the drive head portion, each said pocket having at least three facets extending inwardly; and
the driver comprising a shank having a first end adapted for connecting to a driving device and a second end spaced apart from the first end, the second end comprising a driver bit having a cross-sectional shape corresponding to an irregular polygon including three or more lobes with grooves separating adjacent lobes and curving along the driver bit away from the second end, each lobe spaced substantially equally about a turning axis, and each lobe having at least a flat leading face and at least a flat trailing face wherein the trailing face and the leading face are different lengths;
wherein the faces of the lobes of the driver bits engage the facets of the recessed pockets of the tamper-proof fastener with substantially mated engagement.

14. The combination of claim 13 wherein the substantially mated engagement of the driver and the tamper-proof fastener resists disengagement during tightening of the tamper-proof fastener by the driver.

15. The combination of claim 13 comprising three lobes and three pockets.

16. The combination of claim 13 comprising four lobes and four pockets.

17. The combination of claim 13 comprising five lobes and five pockets.

18. The combination of claim 13 further comprising a centrally located socket formed in an end of the driver bit and a complementary pin centrally located within the head portion of the tamper proof fastener, wherein the pin and socket are adapted for snug engagement.

19. The combination of claim 13 further comprising a centrally located pin formed in an end of the driver bit and a complementary socket centrally located within the head portion of the tamper proof fastener, wherein the pin and socket are adapted for snug engagement.

20. The combination as claimed in claim 17 or claim 18 wherein the pin and socket have a polygon cross-section.

ANNEXURE B: PROPOSED CLAIMS

1. A driver for engagement with a complimentary head portion of a tamperproof
fastener, the driver comprising:
a shank having a first end adapted for connecting to a driving device and a second end spaced apart from the first end;
the second end comprising a driver bit having a cross-sectional shape corresponding to an irregular polygon including three or more lobes, the three or more lobes extending from a substantially flat end of the driver bit;
grooves separating adjacent lobes and curving along the driver bit away from the second end;
each lobe spaced substantially equally about a turning axis;
each lobe has at least four angled facets, with the at least four angled facets engaging with complementary shaped facets in each pocket of the tamper-proof fastener, the angled facets are irregular sized and shaped facets, the angled facets include a leading facet, a trailing facet and a central facet positioned between the leading and trailing facets, and the central facet has at least two angled facets; and
wherein the trailing facet and the leading facet are different lengths.

7. A driver as claimed in claim 5 or claim 6, wherein the pin and socket have a polygon cross-section.

8. A driver as claimed in claim 1, wherein the at least two angled facets on the central facet are inclined from the substantially flat end of the driver bit to a point which substantially corresponds to a depth of the head portion in the tamper-proof fastener.

9. A driver as claimed in any one of the preceding claims, wherein the at least four angled facets of each lobe on the driver are adapted to only engage with the complementary shaped facets in the pockets of the tamper-proof fastener.

10. A driver as claimed in any of the preceding claims, wherein the lobes are formed turning in a clockwise direction about the turning axis.

11. A driver as claimed in any one of claims 1 to 9, wherein, the lobes are formed turning in a counter-clockwise direction about the turning axis.

12. A driver as claimed in any one of the preceding claim, wherein the driver is fabricated from steel or stainless steel.

13. A driver as claimed in claim 4, wherein the central flat end surface extending from each lobe is formed having a cross-sectional shape of an equilateral pentagon.

14. In combination, a driver and a tamper-proof fastener:
the tamper-proof fastener having a threaded shank and a drive head integral with the shank, the drive head having an internally formed drive head portion with at least three recessed pockets in the drive head portion, each said pocket having at least four angled facets extending inwardly with each facet formed as an uneven surface; and
the driver comprising a shank having a first end adapted for connecting to a driving device and a second end spaced apart from the first end, the second end comprising a driver bit having a cross-sectional shape corresponding to an irregular polygon including three or more lobes with grooves separating adjacent lobes and curving along the driver bit away from the second end, each lobe extending from a substantially flat end of the driver bit, each lobe spaced substantially equally about a turning axis, each lobe having at least four angled facets, the angled facets having irregular sized and shaped facets, the angled facets include a leading facet, a trailing facet and a central facet positioned between the leading and trailing facets, and the central facet has at least two angled facets, wherein the trailing facet and the leading facet are different lengths; and
wherein the angled facets of the lobes of the driver bits engage the angled facets of the recessed pockets of the tamper-proof fastener with substantially mated engagement.

15. The combination as claimed in claim 14, wherein the substantially mated engagement of the driver and the tamper-proof fastener resist disengagement during tightening of the tamper-proof fastener by the driver.

16. The combination of claim 14, comprising three lobes and three pockets.

17. The combination of claim 14, comprising four lobes and four pockets.

18. The combination of claim 14, comprising five lobes and five pockets.

19. The combination of claim 14, further comprising a centrally located socket formed in an end of the driver bit and a complementary pin centrally located within the head portion of the tamper-proof fastener, wherein the pin and socket are adapted for snug engagement.

20. The combination as claimed in claim 14, further comprising a centrally located pin formed in an end of the driver bit and a complementary socket centrally located within the head portion of the tamper-proof fastener, wherein the pin and socket are adapted for snug engagement.

21. The combination as claimed in claim 19 or claim 20 wherein the pin and socket have a polygon cross-section.

22. The combination as claimed in any one of claims 14 to 21, wherein the at least two angled facets on the central facet are inclined from the substantially flat end of the driver bit to a point which substantially corresponds to a depth of the head portion in the tamper-proof fastener.

23. The combination as claimed in any one of claims 14 to 22, wherein the at least four angled facets of each lobe on the driver are adapted to only engage with the complementary shaped facets in the pockets of the tamper-proof fastener.

24. The combination as claimed in claim 18, wherein the central flat end surface extending from each lobe is formed having a cross-sectional shape of an equilateral pentagon.