Ezzy Fit Pty Ltd v B3 Corp Pty Ltd

Link copied
Case Copied 57 min read

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…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Ezzy Fit Pty Ltd v B3 Corp Pty Ltd and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2025] APO 31
Decision Date

CaseChat Overview and Summary

The case of Ezzy Fit Pty Ltd v B3 Corp Pty Ltd involved an opposition to the grant of a patent for a retaining wall system. The key issues before the court were whether the patent claims were clear, supported by the specification, and involved an inventive step. The court found that while the claims were clear and inventive, claims 9 and 10 lacked support from the specification. The court gave the applicant two months to amend the specification to overcome the lack of support, and no costs were awarded. The decision hinged on the interpretation of certain technical features in the claims and whether they were adequately disclosed and supported by the specification.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.