Ezzy Fit Pty Ltd v B3 Corp Pty Ltd

IP AUSTRALIA

AUSTRALIAN PATENT OFFICE

Ezzy Fit Pty Ltd v B3 Corp Pty Ltd [2025] APO 31

Patent Application:             2022279431

Title:A Retaining Wall System

Patent Applicant:                B3 Corp Pty Ltd

Opponent:Ezzy Fit Pty Ltd

Delegate:Xavier Gisz

Decision Date:  30 September 2025

Hearing Date:  23 April 2025; further submissions filed 6 June 2025 and 30 June 2025.

Catchwords:  PATENTS - opposition to the grant of the patent under s 59 – inventive step, clarity, sufficiency, best method – reg 5.23 – support considered pursuant to s 60(3) – some claims do not comply with s 40(3) – opportunity to amend – no award of costs

Representation:                   Counsel for the Applicant: Angus Lang

Patent attorney for the Applicant: Dr. David Tso of MBIP

Patent attorney for the Opponent: Trevor Dredge of Intellepro

IP AUSTRALIA

AUSTRALIAN PATENT OFFICE

Patent Application:             2022279431

Title:A Retaining Wall System

Patent Applicant:                B3 Corp Pty Ltd

Date of Decision:                30 September 2025

DECISION

Claims 9 and 10 lack support.

The Applicant is given 2 months to amend the specification to overcome the lack of support.

No award of costs is made.

REASONS FOR DECISION

Background

1. Patent application 2022279431 (the Application) in the name of B3 Corp Pty Ltd (the Applicant) is a divisional of PCT/AU2021/051196 (publication number WO2022/077061) which claims priority from AU 2020903708 with a priority date of 13 October 2020.

2. The Application was accepted on 31 March 2023. The Applicant proposed amendments on 17 April 2023. The amendments were allowed on 31 July 2023.

3. Acceptance was advertised on 20 April 2023. A Notice of Opposition was filed by Ezzy Fit Pty Ltd (the Opponent) on 19 July 2023. A Statement of Grounds and Particulars (the SGP) was filed on 19 October 2023.

4. The Opponent requested to amend the SGP on 12 August 2024 and the amendments to the SGP were allowed on 28 August 2024.

   Reg 5.23

5. The Applicant’s written submissions before the hearing included a copy of US patent 5,435,669 (Weber).

6. The Applicant noted in their submissions at paragraph 14:

   “That Patent was particularised as novelty-defeating (SGP Section A.1.(a)(i)), though that allegation has not been pressed.”

7. I note that US 5,435,669 (Weber) was acknowledged as prior art in the description of the Application (at page 1 line 17-21).

8. US 5,435,669 (Weber) was not in the evidence from either party nor in the “mentioned documents” of the SGP. The Applicant requested at the hearing that US 5,435,669 (Weber) be considered under regulation 5.23. The Opponent agreed that it should be considered under reg 5.23 and also agreed that they had already had an opportunity to make representations about the document, thus no further submissions and/or evidence would be required for complying with reg 5.23(2)(c).

9. The US 5,435,669 (Weber) discloses hollow plastic sleepers for retaining walls. The Applicant refers to US 5,435,669 (Weber) in their submissions in relation to inventive step. The Opponent also refers to US 5,435,669 (Weber) in relation to inventive step; in particular, to set up the ‘hypothetical task’. This hypothetical task is presented…