Cryovac, Inc v Viskase Corporation
[2001] APO 47
•18 September 2001
OFFICIAL NOTICE
DECISION OF A DELEGATE OF THE COMMISSIONER OF PATENTS
Application : No. 692957 in the name of CRYOVAC, INC
Title: Patch Bag Comprising Homogeneous Ethylene/Alpha-olefin Copolymer
Action: Application for an extension of time under Section 223 by VISKASE CORPORATION to file a Notice of Opposition to an amendment and opposition thereto by CRYOVAC, INC
Decision: Issued .
Abstract
Extension from 29 September 2000 to 29 October 2000, to file a notice of opposition granted.
While there is a paucity of evidence of a clear intent on the part of Viskase to oppose the request to amend, the case made in the supporting declarations is not inherently incredible. In addition, the rights for the opposition have now been transferred to Bemis Company Inc. Bemis are clearly interested in progressing the opposition. As such, Bemis’ interests weigh heavily in granting the extension. The public interest also supports an extension.
Costs awarded against Cryovac.
PATENTS ACT 1990
DECISION OF A DELEGATE OF THE COMMISSIONER OF PATENTS
Re:Patent Application No. 692957 by CRYOVAC, INC, an application under Section 223 by VISKASE COMPANY for an extension of time to file a Notice of Opposition to an amendment and opposition thereto by CRYOVAC, INC.
BACKGROUND
Patent application No. 40238/95 (692957) ("the patent") in the name of Cryovac, Inc ("Cryovac") is directed to a bag for the packaging of bone-in meat products. The bag has a polymer patch adhered to it to prevent or reduce the incidence of puncture of the bag by the exposed bone of the meat product contained therein. The application was advertised accepted on 18 June 1998, and sealed on 5 November 1998.
A request to amend the complete specification of the patent was filed on 6 June 2000, and advertised accepted on 29 June 2000. As such, any opposition to the allowance of the amendment had to be filed by 29 September 2000. On 24 October 2000, Viskase Corporation ("Viskase") filed a notice of opposition to the amendment. On 25 October 2000 Viskase filed an application under section 223 requesting an extension to 29 October 2000 in which to file the notice of opposition along with a declaration to support the application.
Following comments from Cryovac, a letter from the Commissioner was sent to Viskase on 4 December 2000, highlighting deficiencies in its application. Following another declaration by Viskase, Cryovac formally objected to the extension on 24 January 2001.
Following Cryovac's objection, Viskase filed a further three declarations.
The Commissioner was also informed on 24 January 2001 that the packaging film interests of Viskase had been transferred to Bemis Company Inc ("Bemis"). As such, the opposition was now proceeding in Bemis' name.
A hearing date was originally set for 22 February 2001. However, following various delays, the hearing date was changed several times. The hearing was finally set for 4 September 2001 in Canberra.
Mr Andrew Dark, patent attorney for Davies Collison Cave, Melbourne, who appeared in person, represented Cryovac. Mr Richard Baddeley, patent attorney of Watermark, Perth, represented Viskase and appeared by telephone.
EVIDENCE IN SUPPORT OF THE APPLICATION
In support of their application, Viskase filed 5 declarations. These were:
(a)A declaration by Richard Hiram Baddeley ("B1") which accompanied the original application of 25 October 2000, with exhibit RHB-1.
(b)A second declaration by Richard Hiram Baddeley ("B2") dated 22 December 2000 in response to the letter of 4 December 2000 from the Commissioner.
(c)A third declaration by Richard Hiram Baddeley ("B3") dated 20 March 2001.
(d)A declaration by Cedric M. Richeson, a patent attorney employed by Viskase.
(e)A declaration by Timothy J. Engling, a patent attorney employed by Lee Mann Smith McWilliams Sweeney & Ohlson - a US firm which represents Bemis.
Cryovac filed no evidence in answer to these declarations.
The B1 declaration is as follows:
"1 (a) I am a registered Patent Attorney and a partner of Watermark Patent and Trademark Attorneys; Patent attorneys for the Applicant in the matter of Opposition to the amendment request dated June 6, 2000 for Australia Patent No. 692957 in the name of Cryovac Inc.
(b)This patent is presently the subject of an Order 15A proceeding before the Federal Court of Australia to which Viskase Corporation is a party.
The amendment request was published for Opposition purposes on June 29, 2000 leaving a deadline for filing Notice of Opposition of September 29, 2000.
Due to an oversight on my part, constituted by failure to diary and monitor the Opposition deadline in our diary system as is expected and usual practice, the Notice of Opposition was not filed in due time.
(a) However, it was the intention of the Applicant to file an Opposition on or before the Opposition deadline of September 29, 2000.
(b)Indeed, I annex as Exhibit RHB-1 to this declaration a copy of a letter dated July 6, 2000 and sent to Mr Dark, patent Attorney for Cryovac Inc, by facsimile on that date.
(c)That letter foreshadows possible Opposition to allowance of the amendment request.
Accordingly, when I realised that the Opposition deadline had been missed, on October 24, 2000, without Notice of Opposition being filed as required, I took immediate steps to file the Notice of Opposition and to apply for an extension of time for doing so."
The letter of RHB-1 is as follows:
"We write regarding Australian Patent No. 692957. The patent is currently the subject of an order 15A application pursuant to which you have sworn an affidavit.
We learnt from the affidavit that you have filed a request for leave to amend the patent. Our client is considering that request. Subject to such consideration and inspection of any relevant documents as may be ordered by the Federal Court, we foreshadow possible Opposition to that request."
Cryovac, in their comments, stated that the declaration did not establish that the contention that Viskase did have the intention to file a notice of opposition. While a possible opposition was foreshadowed in RHB-1 this fell well short of establishing the intention of Viskase to oppose. In addition, Cryovac said that there was no evidence as to how Mr Baddeley failed to enter the opposition deadline in his diary, no evidence as to whether Viskase was advised on the deadline, and no evidence why Viskase failed to instruct Mr Baddeley to file a notice of opposition, notwithstanding the failure to diary by Mr Baddeley.
Following these comments, the Commissioner wrote to Viskase on 4 December 2000 stating that:
"… the Commissioner agrees that exhibit RHB-1 merely demonstrates that the opponent was foreshadowing a possible opposition, and does not establish a clear intent to file such an opposition. As a result, the Commissioner is not satisfied that there has been a causal link between the failure to monitor the opposition and the failure to file the opposition. …
The Commissioner therefore requires further evidence establishing that the opponent had given instructions to their attorneys to file a notice of opposition or evidence otherwise establishing that the opponent had a clear intention to file an opposition."
Following this B2 was filed. In this declaration, Mr Baddeley states (among other things):
7(a)(i)"… I have been authorised by my client, Viskase Corporation, as its Australian Patent Attorney, to conduct or manage prosecution of many Patent Applications, Oppositions and other patent disputes and matters on its behalf since 1995. For these authorised matters, which may include taking definite actions to protect my client's position, it is left to my best judgement as how best to proceed.
…..
(b)Generally, my duties, as assigned to me by Viskase Corporation, require me to act, given my greater familiarity than they with Australian patent practice and procedure, at all times in the best interest of my client in prosecution of such matters. Specific written instructions are not necessarily required by me to perform my duties in accordance with this standard. ….
(c)Such duties include noting, diarying and monitoring Opposition and prosecution deadlines to protect my client's interests, and I regret that, through simple oversight, I did not do that in this case, contrary to expected and usual practice of my firm.
8(a)Viskase Corporation's duly authorised advisors, including myself, have had serious concerns about Cryovac's request to amend since well prior to the September 29, 2000 deadline for filing an Opposition, which deadline and concerns were reported to Viskase Corporation.
…
(d)My view though agreed upon with other advisors, was that Opposition was an appropriate procedure to have those concerns addressed and that Notice of Opposition should therefore be filed provided that:
(1)no instructions to the contrary were received from Viskase Corporation; and
(2)further consideration of the matter revealed no other reason for not proceeding
…
(f)… I believe that it is apparent from my authorisation, my full consideration of the matter, and the consequential serious concerns I had about Cryovac's request to amend, …., that Opposition would be filed to protect the best Interests of Viskase Corporation, unless Viskase Corporation instructed me otherwise before the Opposition deadline.
9(a)Accordingly, I truly believe that, had the deadline for Opposition of the amendment request of September 29, 2000 been correctly entered on my diary, and monitored for action accordingly, as expected by Viskase Corporation, Notice of Opposition would have been filed by me in due time because that was the action that Viskase duly authorised advisors, including myself, thought most appropriate to protect Viskase' interests prior to expiry of the Opposition deadline.
…
10Therefore, I believe that Notice of Opposition was filed in accordance with my authorisation though not in a timely manner due to the error or omission previously declared to."
Following objection to the application under section 223, Mr Baddeley filed the B3 declaration. In that declaration Mr Baddeley stated that, while he believed that the B1 and B2 declarations fully supported the application, he thought that these declarations "would be well supported by a declaration by my instructing attorney, Cedric Richeson, then Patent Attorney at Viskase Corporation." This declaration was subsequently filed. The B3 declaration also sets out the process by which Mr Baddeley learned of the change of the opponent (from Viskase to Bemis), and, following a conversation with Timothy Engling, the US patent attorney for Bemis, how he was then contacted by Mr Engling asking whether he should prepare a declaration. Mr Baddeley apparently told Mr Engling to do so. This declaration was also filed.
The declaration by Mr Richeson and the declaration by Mr Engling attest to the same thing. That is that, due to the transfer of interests and transfer of files both did not instruct Mr Baddeley to file an opposition. In addition, Mr Richeson states that he did not advise Bemis of the deadline.
RELEVANT LAW
The relevant law for extensions of time is Section 223, which provides:
Section 223
…
Where, because of:
(a)an error or omission by the person concerned or by his or her agent or attorney; or
(b)circumstances beyond the control of the person concerned;
a relevant act that is required to be done within a certain time is not, or cannot be, done within that time, the Commissioner may, on application made by the person concerned in accordance with the regulations, extend the time for doing the act.
…
In this section:
"relevant act" means an action (other than a prescribed action) in relation to a patent, a patent application, or any proceedings under this Act (other than court proceedings), and includes the making of a Convention application within the time allowed for making such applications.
Prescribed matters are set out in Regulation 22.11, which provides:
Regulation 22.11
For the purposes of subsection 223(2) of the Act, an application for an extension of time must be in the approved form and have with it a declaration setting out the grounds on which the application is made.
…
For the definition of relevant act in subsection 223(11) of the Act, each of the following actions is prescribed:
(a)an action or step prescribed in Chapter 5, other than an action or step taken under regulation 5.3 or 5.3AA, paragraph 5.4(a) or subparagraph 5.8(1)(a)(i) ;
(b)filing, during the term of a standard patent as required by subsection 71( 2) of the Act, an application under subsection 70(1) of the Act for an extension of the term of the patent.
Section 223(2) of the Patents Act as set out above, is a general remedial provision and, in this case, the relevant act not done within a certain time is the filing of a notice of opposition. Section 223(2) is applicable to extend the time where the failure to pay on time is caused by either an error or omission by the person concerned or their agent or attorney, or because of circumstances beyond the control of the person concerned. This is a discretionary provision and in deciding if to grant the extension, I need to have regard to all the relevant facts and issues.
The definition of an error or omission in the context of section 160 of the Patents Act 1952 was expressed by Jenkinson J in Kimberly-Clark Ltd v Commissioner of Patents(No 3) 13 IPR 569 at 579 to 580 in the following terms:
"It is in my opinion difficult to suppose that only the inadvertences and accidental steps, and not errors resulting from faulty reflection, of the former class of persons were intended by the draftsman to be within s 160(1). Further, the word 'error' is not easily assigned a clear meaning restricted by reference to one or several particular categories of flawed mental function. The attempt is likely to lead to the drawing of fine and often unrealistic distinctions. And some errors of judgement by agents and attorneys may be as bizarre and as little to be anticipated as lapses of memory and accidental slips."
Jenkinson J rejected the argument that section 160(2)(a) excluded errors or omissions that were the products of deliberation. Section 223 is the equivalent of the previous section 160. Consequently, the concept of what constitutes an error should be interpreted broadly and includes an error of judgement. But Jenkinson J also made the following comments at page 580:
"By no means every judgement by the "person concerned" or by "his agent or attorney" which can be shown to have been mistaken will answer the description "error or omission" in the ordinary meaning of those words, which in their context carry, in my opinion, a connotation of obviousness in error."
CONSIDERATION
From Mr Baddeley's declarations, the conclusion I draw as to the circumstances that led up to the application under section 223 are as follows:
(a)Mr Baddeley could file oppositions without express written instructions from Viskase,
(b)Mr Baddeley and the "other advisors" had concerns about Cryovac's request to amend well before 29 September 2000 and decided to file an opposition, barring written instructions from Viskase not to do so,
(c)Mr Baddeley informed Viskase of the intention to file a notice of opposition, along with the deadline for doing so,
(d)Mr Baddeley did not diary the final date for filing the opposition and the deadline was missed.
Mr Baddeley's Authorisation
As to point (a), while, as submitted by Mr Dark, filing oppositions without written instruction may not be the norm, it is not unbelievable. I also note that the declaration by Mr Richeson supports Mr Baddeley's assertion as to the arrangement between the Viskase and Mr Baddeley.
The Decision to File an Opposition
Regarding point (b), Mr Dark submitted that, if serious concerns about the request to amend were present before 29 September, and Mr Baddeley could file oppositions without written instructions, why was the opposition not filed at that time? Mr Dark submitted that this indicated that there had been a clear decision made not to file an opposition. While there may be some logic to Mr Dark's submission, it appears to be based on the assumption that if someone has concerns about something before the Patent Office and an opposition is appropriate, they should file an opposition at that time. However, as pointed out by Mr Baddeley in his submissions, there is nothing in the Act that requires this. The Act sets out various deadlines for actions and only requires that those deadlines be met. While immediate filing may avoid problems (such as this hearing), waiting to file an opposition on the last day of the deadline is not prohibited (indeed, it appears to be common practice). I also infer that Mr Baddeley was intending to give Viskase up until the final day to inform him not to go ahead with the opposition. Mr Dark also submitted that there was no evidence as to who the "other advisors" were or of any correspondence between them and Mr Baddeley. I agree. This lack of evidence is not helpful. However, although it is prudent to keep records of meetings, particularly where important decisions are made, and such records could have been used as evidence in these proceedings, as with point (a), I do not find Mr Baddeley's declaration unbelievable on this point.
Viskase's Intention
Was Viskase clearly intending to oppose the request to amend? As Mr Dark submitted, correctly in my view, where a decision is made not to take a particular action prior to a deadline, the provisions of section 223 do not apply to that act. This is supported by many cases before the Commissioner and the courts. See, as only one example, Weir Pumps Ltd and Commissioner of Patents and Stork Pompen BV (1988) 13 IPR 163.
Thus, evidence supporting point (c) is of great importance. If evidence had been provided as to the correspondence from Mr Baddeley to Viskase setting out the intention of Mr Baddeley to proceed with an opposition by 29 September 2000, barring any instructions from Viskase not to proceed, this would go a long way to establishing that Viskase had an intention to file an opposition. Unfortunately, Mr Baddeley has provided no such evidence. I do not believe it would have been that hard for Mr Baddeley to obtain this evidence. The only letter that is on file is RHB-1, which, as noted above, only supported the possibility of an opposition. Mr Baddeley submitted that the fact that he was authorised by Viskase to take such actions as he saw fit, and that, as no instructions had been received from Viskase, this indicated that Viskase was clearly intending to proceed. However, the lack of evidence of correspondence from Mr Baddeley to Viskase regarding the intention to file an opposition, is of concern.
Turning to the declaration of Mr Richeson, I note that he makes no mention of any correspondence from Mr Baddeley informing him of his (Mr Baddeley's) intention to file an opposition, or even of any correspondence to the effect that the opposition had in fact been filed. It may be argued that, due to the transfer of interests from Viskase to Bemis on 31 August 2000, by the time the opposition was filed (i.e. 24 October 2000), Viskase had transferred the interest to Bemis, and that it was not Mr Richeson's "problem". However, I find it hard to believe that, having received Mr Baddeley's correspondence, Mr Richeson would not have contacted Mr Baddeley to inform him of the transfer, and that he should correspond with Bemis' attorney, Timothy Engling, as eventually did occur "in early January 2001" (see B3). In addition, there is no clear statement that Viskase had always intended to oppose the request to amend. Surely, if Mr Richeson had always intended Viskase to oppose, he could have clearly said so in his declaration. Yet he does not.
He does clearly state that, due to the transfer of patent assets between Viskase and Bemis, he "lost sight of the deadline for filing Notice of Opposition to Cryovac's amendment request". He then declares that "By reason of this oversight, I did not instruct Mr Baddeley to file Notice of Opposition in due time." He also states that he "did not advise Bemis Company Inc., ... of the Opposition deadline" and that, as a result, Mr Baddeley was "not instructed to file Notice of Opposition by any party."
However, in all of this, there is no clear statement by Mr Richeson that Viskase clearly intended to file an opposition. I believe that such a statement could have easily been made by him if that were the case. Lack of such a statement does not establish Viskase's intentions clearly. Mr Dark made the submission that there was no evidence of any instruction from Viskase as to the opposition and no evidence of any follow up by Viskase once they were informed by Mr Baddeley of the filing of the notice of opposition. Mr Dark submitted that this indicates a clear lack of interest by Viskase in progressing the opposition. Mr Dark also submitted that there is no evidence that Mr Richeson contacted Mr Baddeley following the transfer of assets or even following the advice from Mr Baddeley that an opposition had been filed, and that this also indicated a lack of interest on Viskase's part. I tend to agree with these submissions up to the point that the lack of evidence is extremely unhelpful in determining what Viskase's intentions were.
The declaration by Mr Engling is also not helpful. While he says that, "At the time of the opposition deadline, I did not have the appropriate file and was not aware of the deadline", he does not state that, if he was in possession of the file he would have instructed Mr Baddeley to file a notice of opposition. In any event, Mr Engling represents Bemis, and the intentions of Bemis do not necessarily mirror the intentions of Viskase as to the opposition.
Nevertheless, I do not find Mr Baddeley’s assertion of Viskase's intent inherently incredible. It is entirely possible that he believed that Viskase always intended to oppose the amendment. He made the statement in his declaration that he, and “other advisors" had serious concerns. That Mr Baddeley had serious concerns is evidenced by the fact he filed a statement of grounds and particulars that lists numerous particulars as to the allowability of the amendment. Also, the evidence in support of the opposition is a declaration by him, putting several pieces of evidence up for consideration. It is also plausible that Mr Baddeley believed that he had Viskase's permission to file an opposition. Mr Baddeley made the statement that he informed Viskase of his intention to file an opposition, barring any instruction from them not to. He appears not to have received any instructions from Viskase. It could also be said that, since Mr Baddeley did not need written instructions on how to proceed from Viskase, Mr Baddeley's intent was effectively Viskase's intent. While there is no corroborating evidence of this, Mr Baddeley has made these statements in a declaration and, thus, they are, prima facie, true.
Error or Omission
Going to point (d), assuming that Viskase did clearly intend to oppose, in my view the failure to diary an opposition deadline can be considered to be an error under Section 223. In this regard Mr Baddeley directed me to Dow Chemical Company v Imperial Chemical Company (1983) 1 IPR 542. In that case an extension of time to file a notice of opposition was sought. The error being that an opposition date was not properly recorded in a diary system. Mr Baddeley submitted that, in the situation where he was going to file an opposition by 29 September 2000, then to fail to enter a reminder in his diary is an error. I agree. It is also clear that, as a result of this error, Mr Baddeley forgot about the deadline to file the opposition that he declares he was going to file (absent any instructions from Viskase). Mr Dark submitted that there was no evidence as to how the date did not come to be entered into the diary. While this is correct, I do not see why such evidence is needed. I believe that it is common practice by attorney firms to diary relevant dates. The fact remains that the date was not entered. As Mr Baddeley submitted, there is no need to supply details of the diary system. Thus, I believe that there was an error and that there is a causative link between the error and the failure to do the relevant act: in this case, to file an opposition.
OTHER CONSIDERATIONS
As noted above, the power to grant an extension is a discretionary one which must be exercised taking all relevant considerations into account. In this case, I believe these interests to be:
(a) the seriousness of the opposition
(b) the public interest
(c) the interests of the parties.
Seriousness of the Opposition
At the date of the hearing (4 September 2001), the Statement of Grounds and Particulars, and all the Evidence in Support for the opposition had been filed. The statement had been filed on 24 January 2001, and Cryovac had been notified on 24 August 2001 that the evidence in support filed on 22 February 2001 was the only evidence relied upon by the opponent, and that the evidence in support was complete. While an amended statement was filed on 24 August 2001, I note that the amendments are to the particulars only and, from regulation 5.9(1)(c), the Commissioner must allow these amendments. Thus I will consider the amended statement.
The statement has 26 paragraphs of particulars. The particulars of paragraphs 1-21 are directed to the lack of succinctness, clarity, fair basis and sufficiency of the amended claims. Paragraphs 22-24 go to the discretion of the Commissioner to refuse the amendment. Paragraph 25 deals with locus standi, and paragraph 26 sets out the relief sought. If the particulars had been confined to the matters set out in paragraphs 22-24 then, following New England Biolabs v Commissioner of Patents & Anor [2001] FCA 787, which appears to say that the Commissioner has no discretion, I would conclude that the opposition was not on firm ground. However, this is not the case. The majority of the particulars are directed to relevant grounds. It is clear that there is a serious opposition in train.
The Public Interest
If the section 223 application is not granted, the opposition cannot proceed. As such, any merits of the opposition will not be decided upon. To have the opposition not to be considered on its merits because of a failure in procedure, however lamentable, is not in the public interest. See for example Ferocem Pty Ltd v Commissioner of Patents (1994) 28 IPR 243, A Goninan & Co Ltd v Commissioner of Patents (1997) 38 IPR 213 and Kaiser Aluminium & Chemical Corporation v The Reynolds Metal Co (1969) 120 CLR 136. While it is also in the public interest to have oppositions dealt with expeditiously, this is not the overriding concern here. The patent being amended has already been granted. While it may be argued that the opposition will delay the public knowing the monopoly being claimed, any amendment of a claim after acceptance of the patent must fall within the scope of the accepted claims. The public is already aware of the current scope of the monopoly. Any opposition will not change that. I believe it is in the public interest to have the opposition decided on its merits. In addition, it could not be said that there was no inordinate delay on Viskase's part in seeking an extension under section 223. Overall, I believe the public interest lies in granting the extension.
The Interests of the Parties
Regarding the section 223 application I have to consider the interests of Viskase and Bemis. As to Viskase I am not at all clear as to what their interests are in this matter. While the original notice of opposition was filed in its name, it was filed after certain rights were assigned to Bemis. Given that the opposition is no longer proceeding in Viskase's name, I feel that Viskase's interests are not relevant to the application, notwithstanding that it is still in its name. Whether the application is granted or not is of no effect for them.
On the other hand, it is clearly in the interests of Bemis to obtain the extension. The facts suggest that they would be prejudiced if I were to refuse the extension and not allow filing of the notice. I also note that, allowing for the confusion that surrounded the file as to the concurrent oppositions (one to the section 223 application, and the other to the request to amend), the statement and evidence in support have been filed in a timely manner. They show a clear intent in progressing an opposition. If they had delayed the opposition (e.g. in filing evidence in support) pending the outcome of this hearing I may have had some doubt as to their intentions. However, this is not the case here.
At the hearing Mr Dark submitted that Cryovac would be prejudiced by the grant of the application since granting the application would see the opposition go ahead, and it is established that opposition proceedings cost a lot of money. Thus Cryovac's interests are in not seeing the application granted.
However, while Cryovac say they will be disadvantaged financially, as Mr Baddeley submitted, Cryovac did not provide any evidence of any special reasons, and I am not aware of anything to suggest the contrary, which would specifically disadvantage them if the present extension were granted. It is clear that, at the date of the hearing, the statement had been filed (amended nonetheless), and the evidence in support was complete. Thus, Cryovac was well aware of the case being made against it. An argument only as to the cost of an opposition is not, in my view, persuasive.
CONCLUSION
As I noted above, there is nothing in the evidence that positively establishes what Viskase’s intentions to the opposition actually were. Nevertheless, I find Mr Baddeley’s assertion of Viskase's intent inherently credible. It is entirely plausible that Mr Baddeley, acting with the authorisation he has from Viskase, always intended to file an opposition. While there is no corroborating evidence of this, Mr Baddeley has made these statements in a declaration and, thus, they are, prima facie, true. In addition, there is no evidence of a deliberate decision by Viskase not to proceed with an opposition.
In such a situation, Mr Baddeley's error, being the failure to diary an opposition deadline, would constitute to be an error under Section 223. Furthermore, it is clear that, as a result of this error, Mr Baddeley forgot about the deadline to file the opposition. Thus, I believe that there was an error and that there is a causative link between the error and the failure to do the relevant act: in this case, to file an opposition.
There are also the other considerations to take into account. The public and Bemis’s interests are clearly in favour of granting the extension. While Cryovac made the submission that, by granting the extension they would be subjected to the cost of an opposition, this is not persuasive. There are no special reasons that the extension would specially disadvantage Cryovac.
On balance I believe that the application should be granted. While there is a paucity of evidence of the clear intent of Viskase to oppose the request to amend, the rights for the opposition have now been transferred to Bemis. Bemis clearly are interested in progressing the opposition. As such, Bemis’ interests weigh heavily in granting the extension. The public interest also supports an extension.
Having regard to all the circumstances, I allow the extension from 29 September 2000 to 29 October 2000 to file a notice of opposition.
COSTS
Cryovac submitted that costs should follow the event. Viskase made no submissions as to costs.
Generally costs follow the event. Notwithstanding the lack of corroborating evidence from Viskase for its application, I see no reason to vary this practice.
I award costs against Cryovac.
GREG POWELL
Delegate of the Commissioner of Patents
Patent attorneys for the applicant : Watermark, Perth
Patent attorneys for the opponent : Davies Collison Cave, Melbourne
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