George Kent Limited v Email Limited

[1984] APO 13

In the Matter of the Patents Act 1952

‑ and ‑

In the Matter of Application No. 515373 for a Patent in the Name of GEORGE KENT LIMITED

‑ and ‑

In the Matter of Opposition thereto by EMAIL LIMITED.

DECISION OF AN ACTING  ASSISTANT COMMISSIONER OF PATENTS:
         This is an opposition to the grant of a patent in respect of an invention entitled "POLYSTYRENE MOULDING COMPOSITION".  The application was lodged on 11 June, 1979 as a Convention application based on a British application No. 7908122 made on 7 March, 1979.  Acceptance of the Australian application was advertised in the Official Journal of Patents, Trade Marks and Designs on 2 April, 1981.
         After obtaining an extension of time in which to do so, Email Ltd., on 2 October, 1981, lodged a notice of opposition under Section 59, the stated grounds being those set out under paragraphs (e) to (i) inclusive of Sub‑section 59(1).  Several extensions of time for lodging evidence‑in‑support were requested and granted, and that evidence was eventually lodged and served on 30 March, 1983.
         The next action was a request by the applicant to amend the specific‑
ation under Section 77.  This request, lodged on 28 September, 1983 was not opposed under Section 82 and the allowance of the request was advertised in the Official Journal on 14 June, 1984.

Evidence‑in‑answer was lodged and served on 23 November, 1983, and the opponent's evidence‑in‑reply on 23 February, 1984.  In response to a request under Regulation 61(1) by the opponent, a hearing was set down for 3 May, 1984.
However, the applicant pointed out that the Section 77 amendments were unlikely to have been incorporated into the specification by that date, since the period prescribed in Section 82 would have only just expired.  Consequently a hearing was held on 25 July, 1984, at which the applicant was represented by Dr. J. Emmerson, QC, instructed by Mr. Kelson of Messrs. Callinan & Associates, and the opponent was represented by Mr. J. Garnsey, QC, instructed by Mr. G. Halford of Messrs. Halford and Maxwell.  Mr. J. Fitzpatrick, legal manager of the opponent company, was also present.
THE SPECIFICATION
         As accepted, the specification described the invention as relating to

"thermoplastic moulding compositions and in particular to thermoplastic moulding compositions for forming moulded components intended for use in aqueous environments."

It was also said that the invention

"particularly relates to the use of such compositions to form movable parts of fluid flow meters."

The three principal claims at that stage were as follows:

1.A thermoplastic moulding composition comprising a major proportion of a thermoplastic styrene‑based polymeric material having dispersed therein at least 5% by weight, based on the total weight of the composition of PTFE particles.

14. A method of producing a moulding composition according to any preceding claim which comprises admixing the styrene‑

based polymeric material and the PTFE, heating the mixture to form a generally homogeneous plasticised mass of styrene‑

based polymeric material in which the PTFE particles are uniformly dispersed and granulating said mass.

17. A mechanism adapted for operation in an aqueous environment characterised by having at least one component thereof formed by moulding a composition according to any one of claims 1 to 13.

As a result of the S.77 amendments however, claims to the composition per se and its method of preparation were deleted, and the specification as amended has as its main claims:

1.A fluid flow meter including a chamber through which in use of the meter fluid being metered passes and a movable component actuable by fluid flow located within the chamber, wherein at least one of the chamber and the movable component is formed from a styrene‑based polymeric material having dispersed therein from 5 to 30% by weight, based on the total weight of the composition of PTFE particles having an average particle size in the range from 1 to 10 um and wherein the length:breadth ratio of the particles is not greater than 2:1.

11. A mechanism adapted for operation in an aqueous environment, said mechanism having at least one component thereof formed by moulding a styrene‑based polymeric material having dispersed therein from 5 to 30% by weight, based on the total weight of the composition of PTFE particles having an average particle size in the range from 1 to 10 um and wherein the length:breadth ratio of the particles is not greater than 2:1.

These are the only independent claims. 
         It can thus be seen that the original title is no longer indicative of the invention.
         The description purporting to support these claims begins by setting out the requirements for long life and efficient functioning of a fluid flow meter of the type in which a movable component (e.g. a piston or swash plate) operates in a measuring chamber.  It points out that both chamber and movable component should be formed of wear‑resistant materials having low coefficients of friction and they must be "dimensionally stable in water with virtually no water absorption".  This reference to water suggests to me that although the specification refers to "fluid" flow, the problem which the applicant has addressed is confined to water flow, particularly in view of the opening sentence of the specification:

"This invention relates to mechanisms intended for use in aqueous environments."

This belief is further confirmed when the specification goes on to say that the inventor attempted (and failed) to find a known moulding composition which had the required characteristics of

(a) being a thermoplastic composition which can be moulded to a dimensional accuracy of 0.1%; (b) having a stability in aqueous environments such that the change in length of the moulded component due to water absorption is less than 0.1%; (c) the ability to form a component which can function in water up to a temperature of 50oC and not degrade in tropical conditions; (d) having low frictional resistance and good wear resistance when used in typical chamber units, and (e) having good strength and impact resistance.

It is difficult to see how items (b) and (c) could have relevance to any but an aqueous environment.
         In my opinion, what the applicant has invented is a device whose  utility derives from its suitability for use in aqueous environments.  For that reason, I consider Claim 1, insofar as it uses the broad term "fluid" to go beyond the inventive concept, and to be not fairly based on the description.  Similarly I consider Claim 11 to be objectionable insofar as it includes mechanisms in which the "at least one component" is not necessarily in contact with an aqueous environment when the mechanism is in use.
         Having set out the desiderata (a) to (e) above, the specification proceeds to explain that none of the moulding compositions in prior use fulfill all the above requirements.  Thus hard rubber cannot be moulded to the required accuracy, nylon swells on absorption of water, and polyphenylene oxide lacks the required wear and friction properties.
         The specification then explains that the applicant has developed a moulding composition (namely that defined in amended Claims 1 and 11 reproduced above) which overcomes the problem.  Preferred ranges of percentage PTFE, particle size and particle size distribution are given.
         At the hearing, the opponent made submissions relating to the terms "particle size" and "length/breadth ratio", and since those submissions will be considered later in this decision it is convenient to postpone until then any detailed analysis of those terms.  However, in view of the following passage bridging pages 4A and 5 of the specification, I take the length/breadth restriction to be an attempt to impose a requirement that the PTFE particles are essentially granular, as opposed to fibrous or lamellar:

"Although the precise shape of the particles is not unduly critical, it is to be understood that the PTFE particles used in the invention are of a shape such that the maximum transverse dimension of the individual particles does not differ significantly from their minimum dimension.  The length/breadth ratio of each particle is most preferably not greater than 1.5:1.

The preferred particles may thus be regarded as being granular in nature, i.e. in the form of irregular beads, spheres, cubes, etc.  Any gross departures from a granular nature can result in the material having undesirable flow properties, for example the heated material may exhibit a degree of melt elasticity, which is undesirable since it can result in moulding inaccuracies."

I note that the specification does not provide a definition of the term "styrene based polymeric material".  Although the opponent points to the broad nature of this term when compared with the sole example given, namely polystyrene homopolymer, there is no suggestion that the term is unclear.  I myself construe it as including any polymer of which styrene constitutes more than fifty percent of the monomer units.  This construction leads to what I consider to be yet another defect in Claim 1.  It seems to me to be an essential feature of the invention that the plastic which is at the heart of the invention is a thermoplastic.  So far as I am aware there is nothing in the term "styrene‑based" which necessarily implies that limitation.  For example, cross‑linked styrene polymers exist which could not be described as thermoplastic.  I am prepared to accept that such resins would be excluded from Claim 11 by the use of the word "moulding"; but Claim 1 does not stipulate that the component is made by moulding, and I believe that in that claim at least, the term "styrene‑based polymeric material" should be qualified by the word "thermoplastic".
         Having described an example in which pistons were made from the applicant's compositions, the specification goes on to describe in some detail the water meter in which those pistons were tested.  It appears to be of standard construction.  I note that the chamber in which the piston operates is said to be made of "thermoplastic" but it is not stated whether this is the PTFE/polystyrene composition of the invention or some other thermoplastic.
         The body of the specification ends with the following generalisation:

"Although the moulding compositions used in the invention have been particularly described with reference to water meters having movable pistons which execute eccentric rotary motion, other applications are of course possible.  Thus, for example, the moulding compositions used in the invention may be used in the construction of flow meters in which the fluid‑actuated movable component is a swash‑plate.

Also they may be used in the construction of other devices which operate in aqueous environments such as for example, pumps."

One further point about the specification which requires comment is the unqualified term "polytetrafluorethylene" or PTFE.  Like all polymers, PTFE has no fixed molecular weight ‑ it can exist in a range of molecular weights.  There appears, then, to be two possible ways of construing the claims : firstly, as including all possible PTFE's; or secondly, as including only those PTFE's normally obtainable commercially, i.e. not deliberately modified either during or after production to obtain unusually high or low molecular weights.  As will appear later, I understand the addressee of the specification to be a person who is not primarily a polymer expert and for that reason I regard the second construction to be the one which would be adopted by the addressee as a user, as opposed to a manufacturer, of plastics.
THE EVIDENCE
         The opponent's evidence consists of:

(1)A declaration by Steven Kritzler (which may conveniently be referred to as Kritzler 1), with ten annexures thereto (SK1 to SK10).

(2)A declaration by Graham John de Santis, with a single annexure.

(3)A declaration by Graham William Halford with annexures GH1 and GH2.

The Halford and de Santis declarations are concerned only with the circumstances surrounding the publication in Australia of certain of the Kritzler exhibits, and since publication was not challenged by the applicant it will not be necessary to refer further to these declarations.
         The exhibits SK1 to SK4 consist of three advertising leaflets by I.C.I. relating to PTFE and a letter from I.C.I. Operations Pty. Ltd. concerning their publication dates in Australia.
         Exhibit KS5 is an article entitled "TFE‑Lubricated Thermoplastics" by John Y. Lomax and J. Tracey O'Rourke published in the journal "Machine Design" for 23 June 1966, pages 158 to 164.
         Exhibit SK6 is an information bulletin originating from the Liquid Nitrogen Processing Corporation Pennsylvania and entitled "LNP Internally Lubricated Reinforced Thermoplastics".
         Exhibits SK7 and SK8 are further articles from journals.  The former is taken from "Modern Plastics" for March 1970 and is entitled "Internally Lubricated RTP's for Gears and Bearings" by John E. Theberge, while the latter is entitled "What Engineers Should Know About Self‑Lubricating Plastics" by G.R. Bower which appeared at pages 106 to 114 of the September 1965 issue of "Metal Progress".
         Exhibits SK9 and SK10 are, respectively, British patent specifications Nos. 1045059 and 596837.  The former is by American Cyanamid Company and is entitled "Resin Blends" while the latter, entitled "Improvements in Members for Liquid Meters", is by Compagnie pour la Fabrication des Compteurs et Material d' Usines a Gaz.
         In the case of the patent specifications and the journal articles, there are definite dates established for their publication in Australia.  The same cannot be said of the trade brochures, where only approximate dates can be inferred.  Nevertheless, I am satisfied, on the evidence, that all the material put forward by the opponent was available to the public in Australis before the (uncontested) priority date.  I make no comment on the extent to which the various documents were read in Australia beyond noting that they are all of overseas origin.
         As evidence‑in‑answer, the applicant lodged only a single declaration by the inventor Eric Harold William Allen, and in reply the opponent lodged a further declaration by Steven Kritzler (Kritzler 2).
         At the hearing it was submitted by the opponent that the witness Allen, not having worked or resided in Australia, was not competent to make, or contradict, any assertions as to the common general knowledge in Australia.  I concur in that view, and I have ignored those parts of his evidence which I consider to fall into that category.
         It was also submitted that parts of Mr. Allen's evidence should not be admitted because they were clearly hearsay.  Since in my opinion nothing hinges on those particular statements by Mr. Allen I do not have to decide that point.  I might add however that it is my understanding, based on Miller v. Commissioner of Housing 86 RPC 91 that in proceedings before a tribunal there is nothing inherently inadmissable in hearsay, although such evidence may well have diminished weight.
         Some dispute arose during the hearing as to the nature of the notional addressee of the specification in suit.  The opponent asserted that the addressee was a team comprising a manufacturer of water meters in consultation with a polymer chemist.  Mr. Garnsey cited the case of Technograph Printed Circuits Ltd. v. Mills & Rockley (Electronics) Ltd. 1972 RPC 346 as properly defining an addressee, and the case of Valensi and Another v. British Radio Corporation 1973 RPC 337 as showing that an addressee may be a team.  On the other hand, Dr. Emmerson for the applicant contended that the addressee was simply a manufacturer of mechanisms for use in aqueous environments.  He distinguished the Valensi situation on the grounds that in that case the team already existed.  There was no evidence that water meter manufacturer/polymer chemist teams existed, and hindsight would be required to set up such a team since it would have to be assumed that the answer lay in the choice of polymer composition.
         In my opinion Dr. Emmerson's point is well taken, although I believe it is overstating the case to conclude that the addressee is a water meter manufacturer simpliciter.  It is clear from the prior art acknowledged in the specification that the use of plastics materials was common in the art at the relevant time, and it seems likely that any water meter manufacturer would need to have some knowledge of plastics and their formulation, albeit only those commercially available.
         I therefore approach the present case on the basis that the addressee is essentially a production engineer in the field of water‑resistant mechanisms but who has a working knowledge of at least the commercially available plastics.  This is, of course, a long way from the skilled polymer chemist.
         Although the notice of opposition lists five grounds, it became clear at the hearing that reliance was placed only on obviousness and the closely related ground of lack of inventive step, and on non‑compliance with Section 40.  Since I have already indicated some deficiencies in the specification it is convenient to first consider the opponent's allegations on Section 40.
SECTION 40
         The opponent submitted that the term "particle size" is inherently ambiguous when applied to a three dimensional object.  I am prepared to agree that in an absolute sense a precise definition of particle size would require specification of the dimension which is to be measured.  It is, however, significant to note that the matter was first raised at the hearing ‑ it was not canvassed at all in the declarations of the opponent's expert witness.  This suggests to me that Mr. Kritzler had no difficulty in attributing a meaning to the term; but since I have already indicated that I do not consider Mr. Kritzler, who is a polymer chemist, to represent a typical addressee, it would be improper to conclude that no problem exists.  In this regard I note that in Exhibit SK3 there is a Table 2 from which it is quite clear that the same collection of particles can have ascribed to it widely different average particle sizes according to the method of measurement used.  There is no evidence before me that one particular method is so widely used in comparison with other methods that its use would naturally be assumed, and I am therefore driven to the conclusion that the method of measurement ought to be specified if the particle size is to be properly defined, and this the specification fails to do.
         The opponent also alleged at the hearing that there is a discrepancy between the claimed length/breadth ratio and that part of the description which purports to explain the significance of that ratio.  Thus, referring to the previously quoted passage from pages 4A and 5 of the specification, specifying a value of 2:1 for the length/breadth ratio apparently serves the purpose of quantifying the feature that "the maximum transverse direction does not differ significantly from the minimum dimension".  This however presupposes that "breadth" can be equated with "minimum dimension", a proposition not necessarily in accord with common usage of the language.  Thus Mr. Garnsey was able to draw me a picture of a slab‑like particle which, without straining the plain language, could properly be described as having a length/breadth ratio of less than 2:1 but in which, nevertheless, the maximum transverse direction did differ significantly from the minimum dimension.
         I therefore find that the opponent succeeds in both of its allegations of non‑compliance with Section 40.
OBVIOUSNESS
         The test for obviousness is well established.  The alleged invention must be obvious to the non‑inventive worker in the field, possessed of the common general knowledge.  Thus in Wellcome Foundation Limited v. V.R. Laboratories (Aust.) Pty. Limited, (1981) 55 ALJR 249 at 251, Aicken, J. with whom the other members of the Court agreed, said:

"It is as well to bear in mind that the question of obvious‑

ness involves asking the question whether the invention would have been obvious to a non‑inventive worker in the field, equipped with the common general knowledge in that particular field as at the priority date, without regard to documents in existence but not part of such common general knowledge.  The question is not whether it was or would have been obvious to the inventor or to some other particular work in the field."

Following the decision in Minnesota Mining and Manufacturing Co. and 3M Australia Pty. Ltd. b. Beirsdorf (Aust.) Ltd. 29 ALR 29, to show that an item of information is common general knowledge it is no longer sufficient to show that the item was published before the relevant date.  It is necessary to show that the information had been read by, and assimilated into the mind of the man skilled in the art, to become part of his stock of "finger‑tip" knowledge.  This onus falls squarely on the opponent, and it follows that, if it is to be discharged by means of evidence from witnesses, those witnesses must not only assert what was the common general knowledge at the relevant time in Australia, but also must establish their qualifications for making that assertion.  In my view the present opponent has not fulfilled either of these requirements.
         In paragraphs 1‑2 of Kritzler 1, Mr. Kritzler sets out his qualifications.  From this it appears that the majority of his career has been spent in administrative or consultancy positions.  The only period of practical work involving polymers which can be inferred from the evidence is a period of six years with General Silicones Pty. Ltd., in which his work "included in the period 1969 to 1971, work with the incorporation of PTFE into various polymer systems, and in particular the incorporation of PTFE in polymer coatings".  When the relevance of this experience to the moulding of plastics mechanisms was queried in the applicant's evidence, Mr. Kritzler replied (Kritzler 2, para. 5):

"my experience during the 1970's included experience with a broad cross‑section of plastics moulding materials, and their applications, through my involvement in developing release agents for many plastics moulding materials and processes."

In the absence of any further evidence as to the nature of this work, it seems to me to be, at best, peripheral to the commercial production of precision moulded products, and I do not think the opponent has shown Mr. Kritzler to be a man skilled in the art.  I regard Mr. Kritzler as a skilled polymer chemist rather than a production engineer.  Consequently, what Mr. Kritzler says would have been obvious to him (as for example in paras. 7‑8 of Kritzler 1) is not, in my opinion, relevant in the present circumstances to the question of obviousness.  Nor do I consider him to be qualified to assert what was the state of common general knowledge in the art, (as for example in para. 18 of Kritzler 1).  In this connection I note that nowhere in his evidence is there a categorical statement that he himself had, at the priority date, read any of the publications relied on, still less that workers in the relevant field had done so.
         In short, while I accept that the cited documents were available to interested persons I find that the opponent has failed to show to my satisfaction that they were common general knowledge.  The opponent has thus failed to substantiate the ground of obviousness.
LACK OF INVENTIVE STEP
         To support the view that no inventive step was involved the opponent relies principally on an analogy with Commissioner of Patents v. Microcell Ltd. 102 CLR 232.  In that case it was held that a rocket projector tube made from glass fibre reinforced plastic was not a manner of new manufacture being no more than a known article made from a known material utilising its known properties.  In the words of the High Court:

"the specification contains not the slightest hint or suggestion that the use of reinforced plastics for rocket projectors has been made possible by the discovery of some "hitherto unknown or unsuspected property of the material".  We have in truth nothing but a claim for the use of a known material in the manufacture of known articles for the purpose of which its known properties make that material suitable.  A claim for nothing more than that cannot be subject matter for a patent, and the position cannot be affected either by the fact that nobody thought of doing the thing before, or by the fact that, when somebody did think of doing it, it was found to be a good thing."

The opponent contends that the analogy arises because at the relevant date a mixture of polystyrene and PTFE, having a composition and particle size within the specified range, was known, and moreover was known to possess properties which would make it suitable for the purpose claimed.  The most that would be required, says the opponent, would be routine testing to determine the optimum and limiting conditions of composition and particle size.  From a reading of the report of the Microcell case it is not altogether clear whether the High Court used the word "known" in the sense of public knowledge or (as the present applicant contends) in the sense of common general knowledge.  However, I have concluded that it is not necessary, in the present circumstances, to make that distinction.  If by "known" is meant that which is common general knowledge, the opponent is again defeated by its failure to demonstrate that the information alleged to be known had in fact been assimilated into that narrowly characterised body of knowledge.  If, on the other hand, the Microcell case was decided on the basis of public knowledge, then to preserve the analogy the opponent in the present case must show not only that the following were public knowledge:

(a)mechanisms for operation in aqueous environments;

(b)polystyrene/PTFE mixtures falling within the applicant's specification;

but also that the properties of those mixtures were known to be such as to make them suitable for making the mechanisms.  This the opponent has failed to do to my satisfaction.
         That mechanisms for operating in aqueous environments were known is not in dispute.  Furthermore, I consider that Exhibit SK1 effectively discloses relevant mixtures of PTFE and polystyrene.  This exhibit is a leaflet describing I.C.I. Fluon L169.  It includes a Table 1 giving some properties of L169 including a particle size of 5 microns.  The particles are said to be "compact rather than fluffy in shape".  The material is recommended for adding to plastics "to produce composite materials which combine the low friction of PTFE with the ease of processing of conventional plastics".  Among the examples are mixtures of 5% and 10% with polystyrene to reduce the latter's coefficient of friction from 0.34 to 0.10.  Plastics filled with L169 are "recommended for applications which require low friction losses, freedom from "stick‑slip" and maximum wear resistance".  A length/breadth ratio of less than 2:1 is not described, but as I have indicated above, I regard this as no more than an alternative method of specifying that the particles are granular in nature.
         What I do not think the opponent has established is that such mixtures of PTFE and styrene‑based polymers were known to possess all the five characteristics set out on page 3 of the specification and reproduced above.  Thus, Exhibits SK2 and SK3 add nothing which is more relevant than the disclosures of SK1.  Exhibit SK5 does not relate to conventional PTFE "but to powder which has been thermally processed to reduce its molecular weight".  Exhibit SK6 also refers to "modified" PTFE, as contained in Liquid Nitrogen Products "Thermocomp" compositions.  In what way the PTFE is "modified' is not made clear, but it may refer to a subsequent statement that the "molecular weight and particle size ... has been custom‑tailored to yield optimum improvements".  The particle size is not disclosed.  Data is given for friction, wear resistance, strength and water absorption of composites containing PTFE with polystyrene and with styrene‑acrylonitrile.  No evidence was put before me to relate water absorption with dimensional stability in water.  As well as plastics containing PTFE, this exhibit also describes the use of graphite, silicone and molybdenum disulphide as lubricant additives.  In a paragraph dealing with graphite‑filled polymers it is said that while PTFE and/or silicone are the most effective and versatile of the internal lubricants, others are available for use in specific application areas.  The incorporation of graphite into thermoplastics is then described and the following passage occurs:

"The primary usage of graphite lubricated thermoplastics is in applications which operate in an aqueous environment.  Under these conditions, the graphite has proven to be an excellent internal lubricant as can be seen from the data in Table 2.  High loadings (up to 30%) of graphite also act as fillers to reduce mold shrinkage.  When combined with mineral fillers in an amorphous polymer (SAN, styrene modified PPO polysulfone, etc.) they provide compounds which are ideally suited for high tolerance wear components operating in an aqueous environment, such as water meters."

According to Mr. Garnsey, this passage teaches that graphite is a second choice if, for some reason, it is not wished to use PTFE.  In my opinion that is a strained meaning.  I agree with Dr. Emmerson that the plain meaning is that in the particular circumstance of an aqueous environment, graphite is the preferred material.  To that extent I regard SK6 as leading away from the present invention.
         Exhibit SK7, which relates to "modified" PTFE, appears to add nothing to the disclosures of the earlier exhibits.  It does however refer to moulding tolerances, and teaches that lower and more uniform mould shrinkage can be obtained by incorporating fibre glass into the thermoplastic.
         Exhibit SK8 is concerned with bearing materials.  It does not refer to PTFE/styrene combinations.
         The American Cyanamid patent SK9 describes and claims a method of incorporating PTFE into a thermoplastic resin to produce a moulding composition with high impact strength.  The PTFE is incorporated as a latex, and the mixing process causes the PTFE particles to become fibrous.  There is no reference to behaviour in water.
         Exhibit SK10 discloses polystyrene containing 20‑40% of graphite as a suitable material for moulding the moving parts of water meters.  The materials are said to be "insensitive to the action of water", to have an excellent coefficient of friction" and to give "faultless members" by injection moulding. There is of course no mention of substituting PTFE for the graphite, which is hardly surprising since the priority date of SK10 is 1941, only three years after the first report of the existence of a polymer of tetrafluoroethylene.
         In my opinion none of these documents, singly or together, lead, without the exercise of at least some inventiveness, to the conclusion that a styrene‑based moulding composition containing 5 to 30% of 1‑10 micron granular PTFE would be mouldable to a dimensional accuracy of 0.1% to produce mouldings with a dimensional stability in water of better than 0.1%, not degraded below 50oC and having low frictional resistance and good wear resistance, strength and impact resistance.  To say that materials falling within the applicant's definition were known is one thing ‑ it is quite another to say that their properties were fully known in the same sense as in the Microcell case.  For example, it is difficult to see how, without the benefit of hindsight, one could extract from the mosaic of citations the information that the moulding properties of the material would be adequate, or, expressing it as the converse, that a material having the appropriate moulding properties would have the composition now specified by the applicant.  The same might be said of the dimensional stability in water, since although some water absorption figures are given in SK6 for mixtures containing "modified" PTFE, no evidence has been led to show that these can be translated into conclusions about dimensional changes.
         In view of this, and of the reminder by Dr. Emmerson that I should find against the applicant only if it is very clear that a patent cannot be granted (McDonald v. Commissioner of Patents 15 CLR 713), I have concluded that the absence of an inventive step has not been demonstrated by the opponent.
         On the question of costs, I can see no reason why costs should not go with the event.  That being the case, and the opponent having succeeded on the grounds of non‑compliance with Section 40, it is unnecessary for me to consider whether the Section 77 amendments were or were not made as a result of the opponent's evidence.  I award costs against the applicant.
         Since I am not satisfied that the deficiencies under Section 40 are irremediable I give the applicant the opportunity to seek leave to amend the specification within 60 days of this decision.

(K.R. HUNT)