Form 700 Pty Ltd v Evan Zannis
[2018] APO 66
•25 September 2018
IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Form 700 Pty Ltd v Evan Zannis [2018] APO 66
Patent Application: 2014224104
Title:Construction Site Safety Screen System
Patent Applicant: Evan Zannis
Opponent: Form 700 Pty Ltd
Delegate: D. S. Triffett
Decision Date: 25 September 2018
Hearing Date: Written submissions filed on 3 July 2018, 18 July 2018 and 24 July 2018
Catchwords: PATENTS – section 223(2)(a) – extension of time to request examination – error or omission established – extension of time allowed – s 223(2)(b) – circumstances beyond the control not established
Representation: Patent attorney for the applicant: Anderson IP
Solicitor for the opponent: Tony Chay
IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Patent Application: 2014224104
Title:Construction Site Safety Screen System
Patent Applicant: Evan Zannis
Date of Decision: 25 September 2018
DECISION
The applicant's failure to request examination within the prescribed period is the result of an error or omission that enlivens s 223(2)(a). The requested extension of time is allowed.
Costs are awarded against the opponent.
REASONS FOR DECISION
Background
Patent application 2014224104 in the name of Evan Zannis (Mr Zannis) was filed on 10 September 2014.
On 10 August 2016, IP Australia received a request for expedited examination from Mr Zannis.
IP Australia deemed the request for expedited examination to not have been filed on 19 September 2016, due to a failure to pay the required fee.
On 8 November 2016, IP Australia issued a Direction to Request Examination under s 44(2) of the Patents Act 1990 (Cth)(Patents Act).
IP Australia issued a further letter on 19 January 2017, informing Mr Zannis that standard patent application 2014224104 had lapsed due to failure to receive an examination request by 8 January 2017 as directed in the Direction to Request Examination.
On 26 May 2017, Mr Zannis requested an extension of time of 5 months from 19 January 2017, under s 223(2)(a) in order to request expedited examination, and paid the requisite examination fee. IP Australia amended the 5 month extension request date to commence from 8 January 2017.
On 8 June 2017 a delegate of the Commissioner granted an extension of time under s 223(2)(b). The extension of time was advertised for opposition purposes on 22 June 2017.
On 6 July 2017, the opponent (Form 700) filed a Notice of Opposition opposing allowance of the extension of time.
Form 700 filed a Statement of Grounds and Particulars (SGP) on 10 August 2017 on the ground of s 223(2)(a)(SGP-1). An amended SGP was filed on 11 September 2017 on the ground of s 223(2)(b)(SGP-2). This opposition is proceeding on the grounds identified in both SGP-1 and SGP-2, and those grounds are an opposition to the extension on grounds of s 223(2)(a) and s 223(2)(b).
10. The parties were heard in relation to the opposition to the extension of time by means of written submissions.
The law
11. This matter is governed by s 223(2) of the Patents Act, which states:
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.”
12. A "relevant act" for the purposes of s 223 is defined in s 223(11) and 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."
Error or omission
13. The nature of "an error or omission" was considered in Kimberly-Clark Ltd v Commissioner of Patents and Another (No 3) [1988] FCA 421; 13 IPR 569 at 579 – 580 in relation to s 160 of the Patents Act 1952 (Cth), the equivalent of present s 223. Jenkinson J stated:
"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 judgment 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 s 160(2)(a) excluded errors or omissions that were the products of deliberation. 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, [10]:
"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."
In order to make out a proper case that would justify an extension, Jenkinson J stated at 583 ‑ 584:
"…. an applicant would in my opinion have to go beyond a disclosure of the processes by which an agent's errors came to be committed, and would have to expose frankly, inter alia, all the conduct, knowledge, beliefs and mental processes of the applicant (or, in the case of corporation aggregate, of the relevant officers and other agents) relevant to an understanding of the way the failure to do the act or take the step occurred, or relevant to an evaluation of the reasonableness of that conduct.
….
Section 160(2)(a) confers a power so conditioned that in my opinion its exercise is not lightly to be granted, and a power to be invoked only upon a prompt, frank, comprehensive and clear disclosure of all the circumstances relevant to the weighing of the discretionary considerations upon which grant or refusal of an extension of time will depend."
However, there is a limit to what constitutes an error or omission. The law distinguishes between errors and deliberate decisions (Total Peripherals Pty Ltd v IBM & Commissioner of Patents [1998] AATA 784). Of course, where a deliberate decision is made as a consequence of an error or omission, s 223 can still be enlivened (see Re Apotex Pty Ltd and Commissioner of Patents [2008] AATA 226 at [21]).
Circumstances beyond control
Circumstances beyond control were considered in the context of the Trade Marks Act 1955 (Cth) in Re Atomic Skifabrik Alois Rohrmoser v Registrar of Trade Marks [1987] FCA 22 at [18], (1987) 7 IPR 551 at 558. Jenkinson J concluded:
"In the context in which it is found, the expression 'circumstances beyond the control of the person concerned' does in my opinion designate - and designates only - occurrences which neither the person concerned nor any person acting on his behalf to do the act or take the step could prevent. The operations of nature and the activities of strangers may result in such occurrences. So, too, may the acts and omissions of certain independent contractors engaged by the person concerned or by his agent, as for example the carrier of mail or the office cleaner, either of whom causes the loss or destruction of a document to be filed. But the acts or omissions of the agent who on behalf of the person concerned is to do the act or take the step are not occurrences of the description specified in paragraph 131(1)(a), in my opinion. Nor, in my opinion, are the acts or omissions of that agent's servants. The section is, I think, correctly described as a force majeure provision."
These comments were approved in relation to the Patents Act in Jiejing Pty Ltd and Commissioner of Patents Ron Thomas and Allan Garnham [1995] AATA 100 at [104].
It is clear that "circumstances beyond control" refers to matters that a person could not have prevented with reasonable care.
Evidence
19. Form 700's evidence consists of a declaration by:
·Tony James Chay dated 18 December 2017 (Chay) filed as evidence in support.
20. Mr Zannis' evidence consists of declarations by:
·Evan Zannis dated 26 May 2017 (Zannis-1) filed with the application for an extension of time.
·Evan Zannis dated 16 February 2018 (Zannis-2) and Annexure EZ-01 filed as evidence in answer.
Chronology of events
Form 700 provided a brief chronology of events in their written submissions in the table in paragraph [5]. Mr Zannis did not dispute this chronology of events.[1] This chronology is reproduced below with the exception of an additional row shaded in grey which I have added.
[1] Applicant’s Written Submissions at [2].
Date Event 10 Sep 2013 Provisional Patent lodged 10 Sep 2014 Patent Application lodged 19 May 2015 Applicant alleges that he sent a change of address notification to IP Australia. 8 Aug 2016 Applicant requests expedited examination stating:
“… we urgently request an expedited examination of our patent application due to the fact that other companies are copying our system and we therefore need to obtain patent protection as soon as possible.”The Applicant did not pay the fee when submitting the application.
11 Aug 2016 IP Australia sends Official Receipt for expedited examination request, sent to PO BOX 18, Mill Park, VIC 3082 15 Aug 2016 IP Australia acknowledges request for expedited examination, sent to Unit
3, 9 Mirra Court, Bundoora, Victoria 3080.
16 Aug 2016 IP Australia sends request for payment of examination fee, sent to Unit 3, 9
Mirra Court, Bundoora, Victoria 3080.
19 Sep 2016 IP Australia advises Applicant that request for examination is deemed not filed due to failure to pay the fee when requesting the examination. Sent to
Unit 3, 9 Mirra Court, Bundoora, Vic, 3080.
8 Nov 2016 IP Australia issues direction to request examination within 2 months. Sent to Unit 3, 9 Mirra Court, Bundoora, VIC, 3080. 19 Jan 2017 IP Australia notifies applicant that patent has lapsed due to failure to request examination. Sent to Unit 3, 9 Mirra Court, Bundoora, VIC, 3080. 26 May 2017 Applicant makes extant application for extension of time. 18 Dec 2017 Anderson IP – Patent Attorneys become the Applicant’s agent and representative in the extension of time application. What is the "relevant act"?
22. Form 700 contends that Mr Zannis' failure to pay the fee for examination when requesting expedited examination is the "relevant act" within the meaning of s 223(2) of the Patents Act.[2]
[2] Opponent’s Written Submissions at [13].
23. Mr Zannis submits that the "relevant act" is his failure to request examination of the patent application by 8 January 2017 in response to the Commissioner’s Direction to Request Examination dated 8 November 2016.[3]
[3] Applicant’s Written Submissions at [11].
24. The definition of "relevant act" in s 223(11) includes an action in relation to a "patent application" which would include the failure to request examination in time. This is the "relevant act" relied on by Mr Zannis in his request for an extension of time, indicated by the fact the extension requested was for a period of 5 months commencing on 19 January 2017.
25. The fact that Mr Zannis requested expedited examination on 8 August 2016 and failed to pay the relevant fee is not the relevant act in question because Mr Zannis was not seeking an extension of time to pay the examination fee in response to the invitation to pay dated 19 September 2016.
26. As Form 700 contends, s 44(1) permits an applicant to request examination and reg 3.15 (of the Patent Regulations 1991 (Cth)) prescribes a period of 5 years as the period in which an applicant can make such a request. However, in the present case, while s 44(1) allowed Mr Zannis 5 years from the filing date (10 September 2014) to request examination, this timeframe was superseded by the Direction to Request Examination issued by the Commissioner on 8 November 2016.
27. The fact that Mr Zannis had already attempted to request expedited examination on 8 August 2016 is immaterial, as this request for examination was deemed not filed because of the failure to pay the examination request fee at that time.
What is the "error or omission"?
28. Mr Zannis submits that the "error or omission" was his mistaken belief that the "RELOCATION NOTICE" (Exhibit EX-01)("Change of Address Notice")[4] allegedly sent on 19 May 2015, was sufficient to effect a change of physical address from "Unit 3, 9 Mirra Court, Bundoora, VIC, 3080" to "21 Latitude Boulevard Thomastown, 3074", and to confirm that his mailing correspondence should continue to be sent to "PO BOX 18, Mill Park, VIC 3082." I note that at the time the Change of Address Notice was allegedly sent, IP Australia's address for correspondence for Mr Zannis was in fact "Unit 3, Mirra Court, Bundoora, VIC, 3080", not his P.O. Box address as he appeared to believe.
[4] This exhibit was referred to as "EZ-01" at [9] of Zannis-2.
29. Form 700 raises the possibility the alleged Change of Address Notice was either, a "fiction",[5] or alternatively, was "prepared, but was never posted."[6] Mr Zannis asserted that the notice was sent in both his declarations. In Zannis-1 he states "[o]n the 11th May 2016, I wrote to you in order to advise you of our change of our physical address from Bundoora to Thomastown." In Zannis-2 he states that "[a] letter entitled "RELOCATION NOTICE", and dated 19 May 2015 was mailed to IP Australia PO Box 200, Woden, ACT, 2606."
[5] Opponent’s Written Submissions at [52.1].
[6] Opponent’s Written Submissions at [52.2].
30. Form 700 notes Mr Zannis' inconsistency between Zannis-1 and Zannis-2 in relation to when the Change of Address Notice was sent.[7] In Zannis-1 it was 11 May 2016, and in Zannis-2 it was 19 May 2015 which is consistent with the date on the Change of Address Notice. Mr Zannis indicates that at the time the Zannis-1 declaration was made, the Change of Address Notice was misplaced, and he used his best efforts to remember the date as accurately as possible and guessed it to be on 11 May 2016.[8] Mr Zannis went on to say that subsequent to Zannis-1 he was able to locate the letter and saw the actual date was 19 May 2016.[9] The date of 19 May 2016 given at paragraph [11] of Zannis-2 is inconsistent with the date of 19 May 2015 given at two other paragraphs (paragraphs [9] and [15]) of the same declaration, as well as the date on the Change of Address Notice. I am satisfied that 19 May 2015 was the alleged postage date of the Change of Address Notice and the date of 19 May 2016 at paragraph [11] was merely a typographical error.
[7] Opponent’s Written Submissions at [47] and [48].
[8] Zannis-2 at [10].
[9] Zannis-2 at [11].
31. Form 700 sought and received confirmation from IP Australia that the alleged Change of Address Notice:
· is not on either of the files relating to the applicant (the provisional patent application or the application);[10]
· has not been located in a lost correspondence file that it maintains for mail received that is not sufficiently directed to determine what file it belongs to;[11]
· is not otherwise in any of IP Australia's records.[12]
[10] Opponent’s Written Submissions at [51.1].
[11] Opponent’s Written Submissions at [51.2].
[12] Opponent’s Written Submissions at [51.3].
32. However, Form 700 provides no evidence to rebut Mr Zannis' evidence that he at least "intended" to post the Change of Address Notice. As such, I am prepared to rule out the possibility that the Change of Address Notice was a "fiction" fabricated after the fact. This leaves open three further possibilities about the fate of the notice. The first possibility is that Mr Zannis prepared the notice but forgot to post it. The second is that Mr Zannis posted the notice but it got lost in the post before reaching IP Australia. The third possibility is that Mr Zannis posted the notice and it arrived at IP Australia's mailing address but, but through an error, was not processed within IP Australia.
33. With regard to the third possibility, Mr Zannis led no evidence that the Change of Address Notice was somehow misplaced once it reached IP Australia. As it is extremely unlikely that this would have happened, the onus rests with Mr Zannis to establish that it did occur. He has not. With regard to the second possibility, lost mail has traditionally been considered under "circumstances beyond control". I deal with that later in this decision. This leaves open the possibility that Mr Zannis believed he had posted the letter but in fact had not.
34. For the reasons that follow, the fact that the notice may never have been posted is immaterial to Mr Zannis' mistaken belief that the notice he believed he sent was sufficient to effect a change of address.
35. Zannis-1 states at [1]:
"On the 11th May 2016, I wrote to you in order to advise you of our change of our physical address from Bundoora to Thomastown."
and Zannis-2 states at [9]:
"[a] letter entitled "RELOCATION NOTICE", and dated 19 May 2015 was mailed to IP Australia PO Box 200, Woden, ACT, 2606."
36. What was the effect of this Change of Address Notice in the mind of Mr Zannis? In his first declaration, Mr Zannis states at [3]:
"I have since awaited for a response in regards to our Patent application to which I have not received any correspondence from you and unfortunately due to a family member loss, I have been unable to communicate or check status online."
and states at [4]:
"Two days ago [24 May 2017] I went to your website in search of our patent application and I was shocked to see that the application has lapsed due to no response from me."
37. It is clear that Mr Zannis presumed he had changed his physical address with IP Australia from Bundoora to Thomastown, and left his P.O. Box address as his mailing address. This presumption was based on a belief that he had posted the Change of Address Notice on or around 19 May 2015. In the time between Mr Zannis allegedly sending the Change of Address Notice on 19 May 2015 and Mr Zannis going online on 24 May 2017 to search for the status of his patent application, the only correspondence received by Mr Zannis from IP Australia was an Official Receipt of his expedited examination request, which was sent on 11 August 2016 to his P.O. Box address. As the Official Receipt of his expedited examination request was sent to his P.O. Box address in line with Mr Zannis' Change of Address Notice, this adds weight to the conclusion that Mr Zannis presumed that his expedited examination request had been received and the application was awaiting examination. It also supports a conclusion that Mr Zannis was presuming no further correspondence had been sent from IP Australia. Furthermore, the fact that a delegate of Omniform made periodic visits to the old address (in Mirra Court) to collect the mail and retrieved no official IP Australia correspondence,[13] adds further weight to the fact that Mr Zannis was presuming no further correspondence had been sent from IP Australia.
[13] Applicant's Written Submissions at [23].
38. Mr Zannis' belief that he had changed his address was mistaken as the format of the Change of Address Notice would be insufficient to effect a change of his physical address, or confirm that his address for correspondence should be his P.O. Box address. The reasons for this are provided under "circumstances beyond control" at paragraph [48] of this decision.
39. As a result, I am satisfied that the relevant "error or omission" was Mr Zannis' mistaken belief that the Change of Address Notice he believed he had sent on 19 May 2015, was sufficient to effect a change of mailing address with IP Australia.
Did the "error or omission" cause the failure to do the "relevant act"
40. Having already established that the "relevant act" is the applicant's failure to request examination of the patent application by 8 January 2017, and the "error or omission" is Mr Zannis' mistaken belief that the Change of Address Notice was sufficient to effect a change of mailing address, I now must consider whether there is a causal link between this error and the failure to request examination by 8 January 2017.
41. Given Mr Zannis' statement that he also lost a family member during this period,[14] it is reasonable to conclude that Mr Zannis' mistaken belief that he had changed his mailing address, combined with his subsequent loss of a family member, resulted in his failure to check the status of his application online. As a result of Mr Zannis' failure to change his mailing address, he failed to receive either the advice that his request for expedited examination was deemed to not be filed dated 19 September 2016, or the direction to request examination within 2 months dated 8 November 2016. This failure led to Mr Zannis' failure to request examination within the requisite time period, which is the "relevant act" for which an extension of time is sought.
[14] Zannis-1 at [3].
42. I conclude that Mr Zannis did make an "error or omission" that caused the failure to do a "relevant act" within the meaning of s 223(2)(a) of the Patents Act.
Intention to do the "relevant act"
43. Form 700 contends that Mr Zannis gives no evidence of having properly monitored the application, or following up his application for expedited examination.[15] They submit that there was no evidence to explain why, for a period of 9-10 months between August 2016 when the applicant requested expedited examination, and May 2017 when he filed his request for an extension of time, he gave no thought to his application. Form 700 submits that the Commissioner's delegate cannot be satisfied that Mr Zannis intended to pursue the application, and raises serious questions as to "whether the impending lapse of the patent was in fact known by the applicant prior to January 2017 and that the EOT application is, in reality, a change of mind due to some external events."[16]
[15] Opponent’s Written Submissions at [39.3].
[16] Opponent’s Written Submissions at [40].
44. In Zannis-1, having stated that he had advised IP Australia of a change of address in May 2016 and had written (and called) in August 2016 requesting expedited examination on a letterhead that showed the new address, Mr Zannis states:
"I have since awaited a response in regards to our Patent application to which I have not received any correspondence from you and unfortunately due to a family member loss, I have been unable to communicate or check status online."
45. If Mr Zannis was under the mistaken belief that he had already successfully requested expedited examination, to my mind it is not unreasonable for him to have assumed that the next piece of correspondence from IP Australia would be an examination report. It may be that Mr Zannis was waiting for an examination report to be issued in the period of August 2016 to May 2017, particularly given the fact that he acknowledges his lack of experience with official patent office practice and procedure.[17]
[17] Zannis-2 at [8].
46. On the evidence before me, I have no reason to conclude that Mr Zannis did not intend to pursue the application.
What are the "circumstances beyond control of the person concerned"?
47. Form 700 submits that Mr Zannis' failure to update his address for service is not a circumstance beyond the control of Mr Zannis but is properly a matter solely within his control.[18] Form 700 further submits that if the fault lies with IP Australia in failing to update Mr Zannis' address in response to the Change of Address Notice alleged to have been sent to IP Australia then that is not a circumstance to which s 223(2)(b) responds.[19]
[18] Opponent’s Written Submissions at [34].
[19] Opponent's Witten Submissions at [35].
48. It may be that if the Change of Address Notice was in the correct format to effect a change of Mr Zannis' address in IP Australia's systems, then this would be evidence pointing towards an extension under s 223(2)(b) of the Patents Act. From inspection of the Change of Address Notice it can be seen that the notice contained defects such that it would not have resulted in a change of Mr Zannis' address on IP Australia's systems, even if the notice was in fact sent. Firstly, the notice uses a letter head with the name "Omniform" not "Evan Zannis" who is the applicant of patent application 2014224104. Secondly, the notice incorrectly references provisional patent application number 2013903479. Therefore, the format of the Change of Address Notice would be insufficient to effect a change to Mr Zannis' mailing address with IP Australia in relation to the present application, even if it had been received. As a result, even if IP Australia had received the notice it would not have effected a change to Mr Zannis' mailing address in IP Australia's systems.
49. Therefore, I am satisfied that the failure to update Mr Zannis' address for service was not caused by circumstances beyond his control within the meaning of s 223(2)(b) of the Patents Act.
Discretion
50. I have found that a relevant error occurred that prevented Mr Zannis from requesting examination within the prescribed period. Section 223(2) of the Patents Act provides that "the Commissioner may … extend the time for doing the act." I must now consider whether the balance of relevant factors justifies the exercise of the Commissioner's discretion in favour of Mr Zannis. Some of the factors considered in Vangedal-Nielsen v Smith(Commissioner of Patents) [1980] FCA 163; (1980) 33 ALR 144 at 150 are relevant in the present consideration including:
(i) whether the Commissioner is satisfied that a proper case has been made out justifying an extension;
(ii) whether there has been undue delay in seeking an extension of time;
(iii) the interests of the parties in refusing or granting an extension;
(iv) the public interest.
51. In balancing these factors, it is "more important to consider the consequences of extending or refusing to extend time than to debate the reasons why the act was not done in time" (Re Sanyo [1996] AATA 832 at [16]; 36 IPR 470 at 479).
Has a proper case been made out?
52. Form 700 submits that Mr Zannis has failed to make a full disclosure to the decision maker as to the facts and circumstances surrounding the failure to do an act within the prescribed period, and that Mr Zannis seeks to obscure certain facts and information.[20] Form 700 further submits that there was inconsistency between Zannis-1 and Zannis-2 with regard to the date of the Change of Address Notice, and the actual date on that notice.[21] Furthermore, Form 700 submits that Mr Zannis failed to make a full and frank disclosure of the process involved in the sending of the alleged Change of Address Notice.[22]
[20] Opponent’s Written Submissions at [46].
[21] Opponent’s Written Submissions at [47] and [48].
[22] Opponent’s Written Submissions at [49].
53. Despite some of these minor inconsistencies, for the reasons outlined above, I am satisfied that the evidence supports an extension of time under s 223(2)(a) of the Patents Act.
Has there been undue delay in seeking the extension of time?
54. Mr Zannis requested an extension of time "two days" after going to IP Australia's website to check on the status of his application and realising that the application had lapsed.[23] While the application lapsed on 8 January 2017 for failing to request examination, the evidence established Mr Zannis was not aware of the application lapsing until 24 May 2017, two days before he requested his extension of time on 26 May 2017. As previously discussed, Mr Zannis' failure to check the status of his application online prior to 24 May 2017 was due to the loss of a family member. As a result, I do not consider that there has been any undue delay in Mr Zannis seeking an extension of time.
The interests of the parties
[23] Zannis-1 at [4].
55. Form 700's interest lies in the refusal of the extension of time and subsequent lapsing of the patent application. Mr Zannis' interest lies in allowing the extension of time and subsequent examination of his patent application. The interests of the parties are offsetting.
The public interest
56. The public interest lies in the efficient and orderly processing of matters before the Patent Office. There is also a public interest in the development of new technologies and new products coming to the marketplace. Therefore there is a public interest in Mr Zannis being able to test the validity of his patent application in examination.
Conclusion on the exercise of the discretion
57. The consequence of reusing to grant the extension is that the patent application would lapse, potentially denying Mr Zannis from bringing a new invention to the marketplace. If the extension is granted, the patent application will proceed to examination. The balance of these factors favours granting the extension.
Conclusion
58. I am satisfied that Mr Zannis' failure to request examination within the prescribed period is the result of an error or omission within the meaning of s 223(2)(a) of the Patents Act, and I consider it appropriate to exercise my discretion and grant the extension of time.
Costs
59. The Commissioner has a discretionary power to award costs under s 201 and reg 22.8.
60. I see no reason to depart from the normal practice that costs follow the event. Consequently I award costs according to Schedule 8 against Form 700.
Damian Triffett
Delegate of the Commissioner of Patents
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