Firmagroup Australia Pty Ltd v Byrne & Davidson Industries Ltd
[1986] APO 36
•20 October 1986
In the Matter of the Patents Act 1952
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In the Matter of an Application under Sub‑Section 68B(1) for an Extension of the Term of Petty Patent No. 538392 in the Name of FIRMAGROUP AUSTRALIA PTY. LTD.
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In the Matter of a Notice under Sub‑Section 68B(3) by BYRNE & DAVIDSON INDUSTRIES LTD.
DECISION OF A SUPERVISING EXAMINER OF PATENTS:
Background
On 8 March, 1984, FIRMAGROUP AUSTRALIA PTY. LTD. lodged petty patent application 25437/84 as a divisional application of standard application 83977/82 based on provisional specifications PE 8921 and PE 9328, the earlier of which was lodged on 19 May 1981. Petty Patent 538392 was sealed on the divisional application on 19 July, 1984. On 5 February, 1985, the patentee lodged on application under sub‑section 68B(1) for the grant of an extension of term of the petty patent. On 19 June, 1985, Byrne and Davidson Industries Limited ("the informant") lodged a notice under sub‑section 68B(3) informing the Commissioner of certain facts that allegedly establish one or more of the grounds set out in paragraphs 100 (1)(a) to 100(1)(g). The Commissioner, on application under regulation 72 by the patentee and on consideration of the evidence dealing with the state of the common general knowledge lodged under sub‑section 68B(3) by the informant, allowed the patentee three months to 8 November, 1985, within which to lodge evidence‑in‑answer. Subsequently, six months extension of time was allowed and the evidence‑in‑answer was completed on 6 May 1986.
The matter was heard in Canberra on 8 August 1986. Mrs P. Moore of Counsel, instructed by Mr W. Lloyd, patent attorney, and Mr L. Allen both of Shelston Waters, Sydney, represented the informant. Mr D. Shavin of Counsel, instructed by Mr N. Brett, patent attorney of Clement Hack & Co., Melbourne, represented the patentee.
The evidence and the submissions at the hearing were limited to those grounds set out in paragraphs 100(1)(c), (d), (e) and (g) viz. non compliance with section 40, lack of subject matter, obviousness, and lack of novelty.
The Specification
The specification, as accepted, commences by describing the field of the invention as:
"This invention relates to an operator for a door, said operator having a door control and a door position indicator means for locating at a position remote from said operator".
Then follows a description of the prior art with the problem of prior art automatic operator devices being indicated as follows:
"It is a problem to know if the door is fully opened and/or fully closed as it is often not possible to physically view the door from the remote location".
The specification indicates that this problem is even more acute in more recent door operator arrangements in which a moving door on striking an object in its path can reverse its direction of movement. In such an arrangement, the operator at a remote location is not aware whether the door is open or closed.
The object of the present invention is then described as being "to provide a means to indicate when the door is opened and fully closed and that the door is moving between the closed position and/or the opened position".
There is a consistory statement which is equivalent to the claim followed by several preferred features which are described as follows:
"It is particularly preferred that said indicating means be operatively connected with said circuit switch means to provide an indication that the door has reached either of said positions in response to said electric circuit switch means operating to switch off the drive.
Most preferably, the indicating means is provided at a remote location and takes the form of an indicating lamp means for each of the respective opened and/or closed positions. It is particularly preferred that the lamp means be hard wired with respect to the electric circuit switch means, however it is feasible to use a radio control link between the electric circuit switch means and the indicating means and this is to be considered within the scope of the invention.
It is also particularly preferred to provide the indicating means in the form of one or more flashing L.E.D. lamps to indicate that the door is moving between the open and/or closed, or the closed and/or opened positions. Most preferably, this form of indicating means comprises flashing the open and/or closed lamp means until the door has reached the fully opened and/or closed position whereupon the lamp means then remains illuminated continously".
There is a description of a preferred embodiment and several modifications followed by the claim which reads as follows:
"An operator for a door, said operator having a door control and a door position indicator means for location at a position remote from said operator,
said operator comprising drive means for moving a door from the open to the closed position and from the closed position to the open position, initiating means for initiating the drive means to effect such movements of the door, and circuit means interconnected between the drive means and the initiating means to permit such movement of the door and the subsequent switching off of the drive means at the fully opened or fully closed positions, said operator having said drive means, said initiating means and said circuit means all located at a position adjacent the door,
said door control and door position indicator means including an indicator for indicating the door fully closed position, an indicator for indicating the door is opened and a further initiating means for initiating drive of said drive means to effect the same movements of the door as said initiating means, at least said indicator which indicates the door is fully closed being of the type which has two operative states, a first state being where it is activated to give an indication and a second state being where it is not activated and does not give an indication, and wherein said door control and position indicating means is interconnected with said circuit means to give an indication that the door is moving between fully closed and opened positions".
The Evidence
Statutory declarations made by William Stace Lloyd and Richard Evan Jones accompanied the notification under sub‑section 68B(3).
The declaration of Mr Lloyd, a registered patent attorney, supported the patent law aspects of Mr Jones's declaration.
Mr Jones is the Research and Development Manager at Byrne & Davidson Doors (N.S.W.) Pty. Limited. His duties in this position, from March 1978, have been those of a professional engineer in the development, operation and manufacture of industrial and garage doors.
Mr Jones refers to a door with a remotely operable automatic opening and closing system marketed by his employer company since 1978. This "CONTROL‑A‑DOOR" double door system includes motor drive means for moving the door to either an open or a closed position, an initiating means to initiate the drive means to either open or close the door, top and bottom door limit switches to switch off the drive means when the door is either open or closed and remote control means including a push button indicating means for remote actuation of the door. The door arrangement also includes a pair of globes which are illuminated when the door is moving and which are extinguished after a predetermined period.
Although these globes are located adjacent the door, Mr Jones contends that it is merely an arbitary question of design choice involving no exercise of invention to select an appropriate location of such an indication means. Thus the spacing of the indicator means from the door is simply an arbitary choice of selecting the required length of wire.
Mr Jones further declares that, in his opinion, the petty patent claim does not require that the respective "open" and "closed" indication is performed by separate indications but such indication could be performed by one indicator. Mr Jones then elaborates on a number of examples of "remote indicators and their commonly associated remote control systems". One such example given is that of a mechancial clock‑hand indicator such as used in elevators to indicate the floor at which the elevator is located. Such an indicator could rotate between two positions indicated as "open" and "closed". The indicator is activated to move to the "closed" position to indicate that the door is closed. When indicating the "open" position it is "not activated and does not give an indication" that the door is closed. When the door is moving between open and closed positions, the indicator signifies this movement by also moving between the open and closed position
Mr Jones then states that he believes that the provision of a remote door indicator means was obvious and a matter of common general knowledge to persons of ordinary skill in the door engineering field in Australia. He supports this by asserting that remote indicators were "frequently discussed within my company before the priority date". He indicated that during August 1981, albeit after the priority date of the petty patent claim, a report was prepared within his company showing a proposed system using a remote door indicating arrangement with an indicator light illuminated when the door is in the "up" position. Paragraph 22 and 24 of Mr Jones declaration are as follows:
In any case involving electric lamp indicators, I believe that at or before the priority date it was common general knowledge in the general engineering field and certainly to any person of ordinary skill in the field of industrial and garage doors in Australia that it was a simple question of choice whether or not one or more electric lamps should be "on" or "off" to indicate when a door, for example, is open or closed. If safety is involved, it was common general knowledge before the priority date to employ "fail‑safe" systems whereby failure of the indicator would indicate the worst selected case. The wording of the petty patent claim is not as clear as it might be but as I read it, it implies that the indicator which indicates the fully closed position does so by being activated. I take this to mean that the indicator lamp, for example, would thereby need to be "on" when the door is in the closed position. As mentioned above, the particular "on" or "off" state of the indicator means for any required situation is simply a matter of choice. It would have been obvious to me at or before the priority date to provide an indicator lamp which illuminates when the door is in the closed position if it was felt that failure of the lamp should indicate that the door was not in that position.
It is my firm belief that the invention defined in the petty patent claim involves no exercise of inventive ingenuity above and beyond the disclosure of the double door system and that any difference between the invention as claimed and that double door system would, in my view, have been obvious to me at or before the priority date by virtue of forming part of my common general knowledge and the common general knowledge of engineers generally and in particular of engineers or persons of ordinary skill in the field of industrial and garage doors at that time".
Mr Jones then refers to 13 Patent specifications. One of these specifications is Australian Patent No. 520541 in the name of Hitachi, Ltd. I will refer to this specification later in the decision when considering the questions of prior publication and novelty.
The final paragraph of Mr Jones' declaration is as follows:
The disclosures in the various specifications mentioned above support my view that it was known in Australia on or before the priority date to provide doors and in particular industrial and garage doors with remotely operable control systems and with remote door position indicator means. Such position indicator means could be located adjacent the door in a position where they could be viewed by a remote operator. They could also be located at a remote position entirely out of sight of the door and particular reference is made to the HITACHI specification 520,541 and the indicator means 656 illustrated in Figure 1.
In my view, any differences between the invention claimed in the petty patent and that disclosed in the HITACHI specification 520,541 are only matters of simple design choice which, at the priority date, would have been obvious to me or any person of ordinary skill in the industrial and garage door field in Australia. I refer to my extensive comments prior to my brief discussion of the specifications".
The evidence‑in‑answer consists of a statutory declaration made by Simon Leivenzon, the Managing Director of the patentee company, and one of the joint inventors of the patented invention in suit.
Mr Leivenzon details the development of the door operator which is the subject of the claim in suit. According to Mr Leivenzon, his company set up an arrangement with a garage door and operator at one end of a factory and a radio transmitter device was placed at the other end of the factory out of sight of the door. Mr Leivenzon states:
"It immediately became apparent that it would be desirable to incorporate some form of indicator at the remote location which would tell firstly, that the door was closed and/or open and secondly, that the door was actually moving. My company also realized that because a garage door operator had a provision to reverse if the door should strike an object during closing, that some form of indicator would be desirable to show firstly, the movement has changed direction and secondly, that the door has reached the fully closed position".
Paragraph 7 of the Leivenzon declaration reads as follows:
Accordingly, we immediately perceived that the above problems could be overcome if indicators were provided to show that the door was actually closed and a further indicator provided to show that the door was actually moving between one or another of its positions. It then became apparent, that if we provided indicators of this type, we could provide a security system for the installation where the door was situated. It was then perceived that if the indicator which indicates that the door is closed is of a type which becomes ON when the door is closed, that such indicator will provide a fail‑safe indication that the door is always closed or always open. If the indicators were of the type which are OFF, when they are providing the indication, then they could not provide a fail‑safe indicator".
Further, a door movement indicator allows a person operating the door at a remote location to know if the door has responded to a command to open or close it.
Mr Leivenzon discusses the examples and Patent specifications referred to in the Jones' declaration. The most relevant comments are as follows:
"Australian Patent Specification No. 520,541 ‑ HITACHI
This specification discloses ‑ see Figure 1 ‑ a normal operator 13 and motor 1, together with a remote indicator 656. The use of a remote push‑button switch such as a radio controlled push‑button is also envisaged. The difference between this invention and the subject petty patent is that at the remote indicator 656 the light emitting diodes 665 and 666 are turned OFF when the door is stopped at the lower limit and they are lit ‑ turned On ‑ when the door is stopped at other than the lower limit. This is disclosed on page 51. It is also noted that the light emitting diodes 665 and 666 are referred to as an ODI unit throughout the specification. ODI is an abbreviation for "open door indicator". In other words, this indicator 656 is not used to indicate a door closed position, but a door open condition. The purpose of the indicators is totally different to that in the present invention where the object is to provide an indication that the door is closed, not an indication that the door is open".
Section 40
At the hearing, Mrs Moore submitted that the claim is not clear and not fairly based on the matter described and hence does not comply with section 40. To support this contention, she argued that the passage "at least said indication which indicates the door is fully closed being of the type which has two operative states, a first state being where it is activated to give an indication and a second state being where it is not activated and does not give an indication", in the third paragraph of the claim, does not clearly provide any restriction on the feature "an indicator for indicating the door fully closed position", also in the third paragraph of the claim. Mrs Moore further argued that the claim is broad enough in scope to include one indicator incorporating both indicators defined in the third paragraph i.e. the indicator for indicating the door fully closed position and the indicator for indicating the door is opened. She submitted that the alleged advantage of the provision of a closed door fail safe indicator would not be achieved by a door operator with only one indicator. As a consequence, it was submitted, the claim is not fairly based on the matter described.
Mr Shavin argued that it was an improper construction of the claim to suggest that the claim is broad enough in scope to include only one indicator performing the functions of the two defined indicators. I agree with this submission. The relevant part of the claim reads ".... an indicator for indicating the door fully closed position, an indicator for indicating the door is opened .... at least said indicator which indicates the door is fully closed being of the type ..." (my underlining). In my opinion, it is a contorted construction to suggest that only one indicator is disclosed especially in the light of the above underlined qualification of at least one of the indicators. Further, it seems to me that the passage "at least said indicator which indicates the door is fully closed being of the type which has two operative states, a first state being where it is activated to give an indication and a second state being where it is not activated and does not given an indication" places a restriction on the type of indicator which can be used to indicate that the door is fully closed. I think it is clear from the claim that this indicator is activated when it indicates the door is fully closed and not activated when the door is not fully closed.
With respect to the mechanical clock‑hand indicator referred to by Mr Jones in his declaration, I do not agree that such an arrangement provides a closed door indicator which is activated to indicate the door is closed and not activated when the door is not closed. It seems to me that the mechanical clock‑hand indicator operates in the reverse manner. The indicator is activated or moving when the door is not closed and is inactive and stationary when the door is closed. Thus, I do not think that such an arrangement as a mechancial clock hand is included in the scope of the claim in suit.
Therefore, I do not agree that the claim does not comply with section 40.
Prior Publication and Novelty
Although Mr Jones in his declaration refers to a number of Patent specifications, the submissions on behalf of the informant at the hearing were directed to Australian Patent Specification No. 520541 in the name of Hitachi published on 23 October, 1980. Both parties agreed that the only difference between the door operator of the claim in suit and that of the Hitachi specification is that in the claim in suit the indicator for indicating the door is closed is activated to indicate the closed door, whereas, in the Hitachi Patent, the indicator is off or not activated when the door is closed.
Mrs Moore asserted that the provision of a closed door indicator which is activated rather than not activated to indicate a closed door is not an essential feature of the petty patent claim. She submitted that there is nothing in the specification that suggests that such a feature is essential to the invention. Since all of the remaining features are disclosed in the Hitachi specification it was argued that the claimed door operator is prior published by the Hitachi specification.
Mrs Moore referred to the test for prior publication enunciated in General Tire and Rubber Company v. The Firestone Tyre and Rubber Company Ltd (1972) R.P.C. 457 viz.
"if carrying out the directions contained in the prior inventor's publication will inevitably result in something being made or done which, if the patentee's patent were valid, would constitute an infringement of the patentee's claim, this circumstance demonstrates that the patentee's claim has in fact been anticipated".
It is well known in patent law that the test for infringement requires that all essential integers of the claimed invention must be taken by the alleged infringing article.
It seems to me that there is nothing in the specification or the claim to suggest that the specifically defined provision of a closed door indicator which is activated to indicate the door is closed is anything but essential to the claimed door operator. I note that it is the activation of the indicator to indicate the closed door which provides a "fail‑safe" indication as pointed out in paragraphs 7 and 9 of Mr Leivenzon's declaration.
As this distinguishing feature appears to be essential to the door operator of the claim, I do not consider that the Hitachi specification discloses all of the essential integers of the claim and consequently the claim is not prior published by the Hitachi specification.
In discussing the question of novelty, Mrs Moore referred to the test for novelty enunicated by Dixon J. in Griffin V. Isaacs (1942) AOJP 739 at page 740:
"Where variations from a device previously published consist in matters which make no substantial contribution to the working of the thing or involve no ingenuity or inventive step and the merit if any of the two things considered as inventions is the same, it is, I think, impossible to treat the differences as giving novelty".
It was submitted that the difference between the claimed door operator and the door operator disclosed in the Hitachi specification viz. the provision of a closed door indicator which is activated (as opposed to being not activated) when the door is closed, makes no substantial contribution to the working of the thing. It was argued that the specification is wholly silent as to any contribution made to the working of the door operator by this distinguishing feature. It was further submitted that there is no ingenuity or inventive step involved in deciding to activate an indicator to denote that the door is closed instead of having the inactivated indicator signify a closed door condition. Such a feature would have been a development that any competent workman might have made i.e. a mere workshop improvement. Mrs Moore also argued that the merit of the two systems is the same and thus the claimed door operator is not novel.
In response, Mr Shavin submitted that the difference between the claim in suit and the Hitachi specification does contribute to the working of the claimed door operator as it is this difference which allows the system to provide a positive indication at all times as to whether or not the door is closed. He referred to paragraph 7 of Mr Leivenzon's declaration which deals with the advantages gained by this distinguishing feature.
I agree with Mr Shavin that this distinguishing feature contributes to the working of the device in that it is this feature which gives a positive indication that the door is closed. In the Hitachi specification, the user of the door operator cannot be certain that the door is closed if he is not in visual contact with the door as the indicator may have failed to operate while the door is still open. Thus the indicator appears to be inactivated signifying a closed door position but because of the mal‑function of the indicator the door is actually still in an open position.
With respect to the question of whether or not any ingenuity or inventive step is involved, I think it more appropriate to consider this when dealing with the question of obviousness. I would point out, in any case, that the test for novelty, referred to above, indicates that the question of ingenuity or inventive step should be considered in conjunction with the question of whether or not the merit of the two devices is the same. For reasons similar to those I have given in relation to the question of whether or not the difference contributes to the working of the device, I am of the opinion that the merit of the two devices is not the same. Thus, even were I to find that there was no ingenuity or inventive step involved, I could not say that the claimed invention lacked novelty as the second part of the test is not met.
I have decided that the door operator of the claim in suit does not lack novelty in the light of the disclosure in the Hitachi specification. As I consider that this specification is the most relevant of the 13 specifications referred to in Mr Jones' declaration, I also find that the claimed door operator does not lack novelty in the light of the other specifications.
Obviousness
Mrs Moore referred to a number of paragraphs in Mr Jones' declaration to illustrate the state of the common general knowledge in the field of industrial and garage doors. She submitted that it was common general knowledge before the priority date of the claim to have a door operator with all the features defined in the claim except for the following:(i)a door position indicator means for location at a position remote from the operator,
(ii)an indicator for indicating the door fully closed position,
(iii)an indicator for indicating the door is opened,
(iv)at least said indicator which indicates the door is fully closed being of the type which has two operative states, a first state being where it is activated to give an indication and a second state being where it is not activated,
(v)said door control and position indicating means is interconnected with said circuit means to give an indication that the door is moving between the fully closed an open positions.
She further submitted that it was clear from Mr Jones's declaration that the above features were part of the common general knowledge in the field of industrial and garage doors. Further, in paragraph 22 of Mr Jones's declaration, he states:
"...... It would have been obvious to me at or before the priority date to provide an indicator lamp which illuminates when the door is in the closed position if it was felt that failure of the lamp should indicate that the door was not in that position".
Both Mrs Moore and Mr Shavin referred to Minnesota Mining and Manufacturing Co. v. Beiersdorf (Australia) Ltd 144 CLR 253 in which decision it is espoused that the determination of obviousness is dependent on the common general knowledge in the field of the invention.
I must therefore determine, from the evidence, what was part of common general knowledge of the industrial and garage door industry before the priority date of the claim in suit viz. 19 May, 1981.
In considering the state of common general knowledge in the relevant art and the question of obviousness, I must have regard to what the non‑inventive skilled worker "may be expected to have as part of his technical equipment" as stated in Automatic Coil Winder and Electrical Equipment Pty Ltd v. Taylor Electrical Instruments, Ltd 61 RPC 41 at 43. In the present circumstances, I think it would be difficult to classify Mr Jones, who is a Research and Development Manager, as a non‑inventive skilled worker. Even if Mr Jones were to be considered as non‑inventive, I think it is quite likely that he may possess more knowledge in the art, because of the position he holds within his company, than the ordinary skilled worker. I think these points should be borne in mind when considering what weight should be given to the assertions as to the state of common general knowledge in the art made by Mr Jones in his declaration.
I am not satisfied that there is enough evidence to establish that the "CONTROL‑A‑DOOR" double door system referred to in paragraphs 8 to 14 of Mr Jones' declaration would have been part of the common general knowledge in the field of the present invention before the claim's priority date. This system differs from the claimed door operator in that it does not have features (i) to (v) listed above which are included in the claim. Even if this system were to be considered as part of the common general knowledge, I do not consider that it would have been obvious to arrive at the claimed door operator.
I do not consider that there is sufficient evidence to establish that the provision of a remote door indicator means was part of the common general knowledge of the industrial and garage door industry before the priority date of the petty patent claim. Mr Jones in paragraph 20 of his declaration refers to a remote door indicator which was illustrated in a report prepared in August 1981 i.e. after the priority date of the claim in suit. However, there is no evidence to suggest that such an arrangement was part of the common general knowledge before the priority date of the claim. Further, there is no evidence to establish that the various examples referred to in paragraph 18 were part of common general knowledge. More importantly, there is no evidence to suggest that the door operator system disclosed in the Hitachi specification was part of the common general knowledge of the garage door industry at that time.
I am also not satisfied that
"if safety is involved, it was common general knowledge before the priority date to employ "fail safe" systems whereby failure of the indicator would indicate the worst selected case",
as asserted by Mr Jones in paragraph 22 of his declaration. There is no evidence, apart from this assertion, to suggest that "fail‑safe" systems were common general knowledge in the relevant art.
Having established what I consider was the common general knowledge in the field of the invention before the priority date of the claim, I must now decide whether or not the door operator of the petty patent in suit is obvious in the light of this common general knowledge.
Aickin J. in the Minnesota Mining and Manufacturing Co case (supra) stated, at page 293:
"In the case of alleged lack of an inventive step the question of making a mosaic must operate (if at all) in a very different matter. An allegation of want of inventive step is not made out by saying you may take one or two, or twenty‑one or twenty‑two prior publications and then select from them appropriate extracts or pieces of information, which will add up to the invention claimed and so demonstrate that it was obvious. So to proceed is to mistake the nature of an invention and the nature of the objection of obviousness. The question is, is the invention itself obvious, not whether a diligent searcher might find pieces from which there might have been selected the elements which make up the patent. If this were not so, there could never be a vaild patent for a new combination of old integers. The proper question is not whether it would have been obvious to the hypothetical addressee who was presented with an ex post facto selection of prior specifications that elements from them could be combined to produce a new product or process. It is rather whether it would have been obvious to a non‑inventive skilled worker in the field to select from a possibly very large range of publications the particular combination subsequently chosen by the opponent in the glare of hindsight and also whether it would have been obvious to that worker to select the particular combination of integers from those selected publications. In the case of a combination patent the invention will lie in the selection of integers, a process which will necessarily involve rejection of other possible integers. The prior existence of publications revealing those integers, as separate items, and other possible integers does not of itself make an alleged invention obvious. It is the selection of the intergers out of, perhaps many possibilities, which must be shown to be obvious".
As I have previously decided that there is not sufficient evidence to establish that remote door indicators and "fail‑safe" systems were part of the common general knowledge of the relevant art, I do not have to consider whether or not it would have been obvious to a non‑inventive skilled worked to select the particular combination of integers which are claimed. However, even if such integers were part of the common general knowledge, it seems to me that, in proceeding from the "CONTROL‑A‑DOOR" double door system, assuming that this system was also part of the common general knowledge, the selection of a number of integers would have to be obvious to the non‑inventive skilled worker before he could arrive at the claimed door operator.
Firstly, it would have to be obvious to him to include a remote indicator with the remote door control means. Secondly, it would then have to be obvious to him to provide an indicator for indicating a door open position, an indicator for indicating a door closed position and indication means for indicating movement of the door. Thirdly, it would then have to be obvious to him to provide a closed door indicator which is in an activated state when it indicates the door is closed.
Such a progression from the earlier door system to the claimed door operator seems to be exactly the situation referred to by Aickin J. above when he warns against ex post facto selection of integers. Thus I do not consider that the door operator defined in the claim in suit is obvious.
Manner of Manufacture
Mrs Moore submitted that the claimed door operator is not a manner of manufacture as it is a mere collocation of integers each performing its own separate function. She argued that the garage doors system performs its own function and the indicators perform their own function.
I do not agree with this. There is certainly a working interrelationship between the indicators and the door operating system. Indeed, unless the indicators are interconnected with the door operating system, they cannot indicate when the door is open, when it is closed and when it is moving. I am satisfied that the claim is directed to a combination and is defining a manner of manufacture.
Summary
For the reasons given above, I am not satisfied that any of the grounds set out in paragraphs 100 (1) (c), (d), (e) and (g) exist. I grant an extension of the term of the petty patent.
I award costs against the informant, Byrne & Davidson Industries Ltd.
(A.J. Evans)
Supervising Examiner of Patents
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