Fletcher Industries Limited v Anthony W. Clarke & Associates Pty Ltd

[1985] APO 19

In the Matter of the Patents Act 1952 - and - In the Matter of Patent Application No. 513719 in the Name of FLETCHER INDUSTRIES LIMITED - and - In the Matter of Opposition thereto by ANTHONY W. CLARKE & ASSOCIATES PTY. LTD.

 

FINAL DECISION OF A SUPERVISING EXAMINER OF PATENTS:

Background

Patent Application No. 513719 entitled "BUILDING CONSTRUCTION" was advertised accepted on 18 December, 1980. Notice of Opposition to the grant of a patent was lodged by Anthony W. Clarke & Associates Pty. Ltd., on 16 March, 1981. Evidence-in-answer was not served and a time and date for a hearing was set under the provisions of sub-regulation 61(4).

Hearing of the opposition took place in the Melbourne Sub-Office on 2 August, 1983. Mr. C. Sandercock, patent attorney of Sandercock, Smith & Beadle, represented the applicant and Mr. D.C. Carter, patent attorney of Cowie, Thomson & Carter, represented the opponent.

A decision was issued by the supervising examiner on 8 December, 1983, which included the following paragraph:

"I have found that the opponent has been successful in establishing that the specification does not comply with section 40 and that there has been prior publication by prior user. As the applicant can overcome my adverse finding, I allow the applicant 60 days from the date of this interim decision within which to lodge a statement of amendments under section 77 to amend the specification to my satisfaction."

Fletcher Industries lodged a request to amend the complete specification under section 77 on 6 February, 1984, and those amendments have subsequently been incorporated - unopposed - into the specification.

The Specification and Amendments

In the specification as accepted, claim 1 read:

"A connection between adjacent portal frame members of a portal frame, including a connector having a base and at least two out-turned side members; the base and side members engaging two adjacent portal frame members of a portal frame; securing or location means being passed through the base of said connector and webs of said portal frame members."

The specification defined various terms in the claim thus:

(i) The "Portal frame members" are defined as:

"the various building members which are connected to form the portal frames."

(ii) The connectors are defined as:

"those metal sections which act to join and connect portal frame members one to the other."

(iii) The "web" of portal frame members is defined as:

"that area of a metal strut or portal frame member, intermediate and between the sides or edged of each metal strut or portal frame member. Where the strut or portal frame member has upturned sides or edges it is that substantially intermediate, or flat area, between the upturned sides or edges."

Claim 1 as amended (the only independent substantive claim) reads:

"A connection between two closely proximate metal portal frame members of a portal frame, each of the two closely proximate portal frame members including a base or web and spaced apart and outwardly extending side members, said connection including a metal connector having a base and at least two spaced apart and outwardly extending side members, wherein the elongate axes of the side members of the connector are substantially normal to the longitudinal axis of the base throughout the length of the side members of the connector to thus provide the connector with an unrestricted open face, the base and at least one of the side members of the connector being in substantial abutment with, respectively, the base or web and at least one side member of one of said two closely proximate portal frame members and the base and at least the other one of the side members of the connector being in substantial abutment with, respectively, the base or web and at least one side member of the other of said two closely proximate portal frame member securing or locating means being passed through the base of said connector and the bases or webs of said two closely proximate portal frame members."

Decision

The opponents were notified by letter dated 30 July, 1985 that the amendments were allowed and incorporated into the specification, and at that time they were offered an opportunity to be heard on any matters under section 59 in relation to the amended specification. They have not chosen to be heard, accordingly, I have considered the amended specification to determine if it complies with the terms of the supervising examiner's "interim" decision. In my view it does, and I therefore direct this application to sealing, subject to any appeal.

(J L Roveta)Supervising Examiner of Patents

6 SEP 1985