Hidekazu Ogawa

IP AUSTRALIA

AUSTRALIAN PATENT OFFICE

Hidekazu Ogawa [2011] APO 51

Patent Application: 2009225277

Title:Repositioning apparatus and garment, and posture-forming method

Patent Applicant: Hidekazu Ogawa

Delegate: E J Knock

Decision Date: 14 July 2011

Catchwords: PATENTS – examiner objection – case management of divisional applications – no response by applicant – application refused

Representation: Patent applicant: Georgina Higinbotham of Griffith Hack, Sydney

IP AUSTRALIA

AUSTRALIAN PATENT OFFICE

Patent Application: 2009225277

Title:Repositioning apparatus and garment, and posture-forming method

Patent Applicant: Hidekazu Ogawa

Date of Decision: 14 July 2011

DECISION

I refuse the application.

REASONS FOR DECISION

Patent application 2009225277 was filed by Hidekazu Ogawa as a divisional of application 2003268691 on 09 October 2009. An examination report issued on 11 March 2011, raising four objections. In line with the Commissioner's approach to case management of divisionals, the report included the following note:

“Objection(s) 2 and 3 of my report are based on the same grounds objected to in the examination of patent application 2003268691. Please note that if a response overcoming this objection is not filed within two months of the date of this report the Commissioner will consider whether to direct amendment of the application under section 107 or proceed to refuse the application under section 49(2) of the Act. If you intend to proceed under either of these provisions the Commissioner will notify you in writing and indicate the time and place you may be heard on the matter. In deciding the matter the Commissioner will consider all possible grounds of objection to the application not only those identified above."

As no reply was received, the Commissioner issued a hearing notice in the following terms:

"The examination report of 11 March 2011 raised an objection(s) equivalent to that in the parent application. In line with our approach to case management of divisionals, you were given two months to respond to that report. As no response has been received, the matter will now be set for hearing.
I believe that it is possible to hear this matter on the basis of written submissions, so I allow you one (1) month from the date of this letter to file any submissions you wish. Your submissions should address the ground(s) of objection identified in the examination report. Once your submissions have been received, or alternatively if no submissions are received, the matter will be passed to a hearing officer to issue a written decision. Please note that it is possible for the Commissioner to refuse the application or direct amendment.
Alternatively, if you file amendments overcoming the objection(s) within this period, the Commissioner will not proceed with the hearing. However, if the amendments do not fully overcome the objection(s), you will be advised of this fact and the hearing may continue as above."

The applicant has not provided any submissions.

The objection

I have reviewed the examiner's report, and I agree that there are appropriately raised objections. The applicant has chosen not to defend the application. They have provided no submissions disputing the objections, and have not proposed any amendment to attempt to overcome the objections. In these circumstances there are no reasonable prospects of the applicant overcoming the objections. The application should be refused.

E J Knock
Delegate of the Commissioner of Patents

Hidekazu Ogawa applied for a patent for a repositioning apparatus and garment, and a posture-forming method. The application, numbered 2009225277, was filed as a divisional of an earlier application, 2003268691. The Australian Patent Office issued an examination report on 11 March 2011, raising four objections to the patentability of the invention. The applicant did not respond to the examination report within the required period, and subsequently, no submissions were made in response to a hearing notice issued by the Commissioner.

The legal issues before the court involved whether the objections raised in the examination report were valid and whether the applicant had failed to address these objections, thus leading to the refusal of the patent application. The court had to determine if the objections were appropriately raised and if the applicant had an opportunity to respond but chose not to do so. The court also needed to decide whether the Commissioner was justified in refusing the application due to the lack of response and submissions from the applicant.

The court found that the objections raised in the examination report were valid and that the applicant had not responded to the objections within the given timeframe. The applicant had also failed to provide any submissions or propose amendments to overcome the objections. Consequently, the court concluded that there were no reasonable prospects of the applicant overcoming the objections. The application was therefore refused, aligning with the Commissioner's approach to case management of divisional applications. The court upheld the decision of the Commissioner to refuse the patent application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established