Human Genome Sciences, Inc v Ludwig Institute for Cancer Research

[2001] APO 38

OFFICIAL NOTICE

DECISION OF A DELEGATE OF THE COMMISSIONER OF PATENTS

Application  :          No. 696764 in the name of HUMAN GENOME SCIENCES, INC

Title:          Vascular Endothelial Growth Factor 2

Action:          Application for an extension of time by LUDWIG INSTITUTE FOR CANCER RESEARCH to serve evidence in reply, and an objection thereto by HUMAN GENOME SCIENCES, INC

Decision:          Issued            .

Abstract

Extension of time from 15 June to 15 September 2001 granted.

The reasons provided by Ludwig, including the reasons set out in the declaration by John Francis McCann, generally justify the request for an extension of time.  While there may have been a lack of detail in the reasons advanced at the time the application was made in showing any link between Professor Alitalo's experiments and the finalisation of all the evidence in reply, there was sufficient detail overall to support the request.

In addition, the public interest would not be served if the opponent was shut out from answering criticisms made in the evidence in answer, and the opposition was not decided on its merits.  Furthermore, there is no evidence to suggest that HGS would be unduly disadvantaged by the extension being granted.

As the reasons provided with the application did not justify an extension, and, thus, HGS was justified in its opposition, costs were awarded against Ludwig.

PATENTS ACT 1990

DECISION OF A DELEGATE OF THE COMMISSIONER OF PATENTS

Re:Patent Application No. 696764 by Human Genome Sciences, Inc; Application for an extension of time by Ludwig Institute for Cancer Research to serve evidence in reply, and an objection thereto by Human Genome Sciences, Inc.

BACKGROUND

Patent application 696764 in the name of Human Genome Sciences, Inc ("HGS") was filed on 12 May 1994 as PCT/US94/05291 for Vascular Endothelial Growth Factor 2 (VEGF2).  The application was advertised accepted on 17 September 1998.  On 17 December 1998 Ludwig Institute for Cancer Research ("Ludwig") filed a notice of opposition and completed service of its evidence in support on 17 February 2000 following three extensions.  HGS completed service of its evidence in answer on 15 December 2000, also following three extensions.  On 15 January 2001 Ludwig served a notice of intention to serve evidence in reply, and on 15 March 2001 filed a request for extension of time to 15 June 2001 to serve evidence in reply.  While HGS did not oppose this extension they did state that "it will take objection in the future if the extension application is unjustified".  On 15 June 2001 Ludwig requested an extension of time to 15 September 2001, and HGS objected to this extension.

The request for the extension of time to file evidence in reply and the objection thereto was heard in Canberra on 17 July 2001.  HGS filed written submissions in support of its objection, and did not appear.  Ludwig appeared by telephone and also supplied written submissions.  Mr Christopher Ward of counsel and Dr John McCann, patent attorney of Spruson & Ferguson, Sydney represented Ludwig.

THE APPLICATION FOR AN EXTENSION OF TIME

The grounds which Ludwig relied on for the extension of time are:

"The Applicant's Evidence in Answer includes six expert declarations, together with annexures thereto, and one declaration by its attorney, to which twenty-three documents are annexed.

All of the aforementioned declarations and annexures have been forwarded to the scientific experts which the Opponent has engaged for assistance in this matter.  That material has been reviewed and substantial progress has been made toward the preparation of a draft response to the issues raised by the HGS evidence.

In addition to the volume of evidence submitted by the Applicant, preparation of the Evidence in Reply has been complicated by the manner in which the Applicant's evidence was presented.  In the opinion of the Opponent, that evidence was presented in a repetitive and disorganised fashion.  Substantial time is required to address all issues in an organised fashion that minimises the repetitiveness and disorganisation that exists in the collective declarations of the Evidence in Answer.

As parts of the Evidence in Answer a number of the declarants attempted to impeach scientific experiments by Professor Alitalo demonstrating that VEGF2 as taught in the opposed application is not expressed and secreted as taught.  Professor Alitalo's laboratory has designed experiments, made constructs, and made substantial progress in obtaining results which will address the criticisms raised in the Evidence in Answer.  This work is in progress.

In light of the above circumstances we request a three month extension of time within which to complete the experiments, assess and summarise the results, for further consideration to be given to the other issues raised by the Evidence in Answer and for the declarations which will form the Evidence in Reply to be completed, executed and served."

On the morning of the hearing, Ludwig filed a statutory declaration by John Francis McCann patent attorney of Spruson & Ferguson, Sydney (the McCann declaration) expanding on the circumstances that lead to the request being filed.  In summary the points he makes are:

a)He represents the opponent (Ludwig) is this matter, and is being assisted by David A Gass of the American firm of Marshall O'Toole Gerstein Murray & Borun.

b)On 12 and 14 June 2001 he spoke to Mr Gass about the opposition and was informed that Professor Alitalo was carrying out experiments to respond to the criticisms raised in the evidence in answer of his experiments in the evidence in support.

c)By 14 June 2001 a 30-page, single spaced draft declaration of the evidence in reply had been prepared.  The draft was being developed and revised to present the response in the context of Professor Alitalo's work.

d)On 17 July 2001, Mr Gass had advised him that the experimental work had been completed and the experimental results had been described in writing.  This description will be included in the evidence in reply.  He also states that his understanding was that, "in the absence of unexpected delays, the analysis will be complete before 15 September 2001."

e)He then states that Mr Gass had advised him that "at least part of the Evidence in Reply will be served on or before 15 September".

APPLICABLE LAW

According to regulation 5.8(4), the time for serving evidence in reply is one month from the date of service of the evidence in answer or, if a notice of intention to serve evidence in reply is served within one month of the date of service of the evidence in answer, within three months of the date of service of the evidence in answer.  This time may be extended under regulation 5.10(2) which states:

1. The Commissioner may extend the time within which the party may take a step prescribed in this Chapter (not being a step that is taken under regulation 5.3 or 5.3AA, paragraph 5.4(a) or subparagraph 5.8(1)(a)(i):

   (a)on the application of a party in the approved form;  and

   (b)on such reasonable terms (if any) as the Commissioner specifies;  and

   (c)after the party has served the application on the other party."

This provision must be read in conjunction with regulation 5.10(5):

1. The Commissioner must not give a direction under subregulation (1) or grant an application under subregulation (2) or (4) unless the Commissioner: 

   (a)if he or she proposes to grant an application by a party -  is reasonably satisfied that the other party has been notified of the application; and

   (b)if he or she proposes to act on his or her own motion - ensures that the parties are notified of the proposed action; and

   (c)in either case: 

   (i)gives the parties a reasonable opportunity to make representations concerning the application or proposed action; and

   (ii)is reasonably satisfied that a direction, an extension of time or the serving of further evidence is appropriate in all the circumstances."

Thus the Commissioner, having given both parties the opportunity to make representations, may grant an extension only if reasonably satisfied that it is appropriate in all the circumstances.

Regarding the factors that must be considered in deciding whether or not the Commissioner should grant an extension of time, Burchett J in Ferocem Pty Ltd v Commissioner of Patents (1994) 28 IPR 243 stated:

"The idea that such a broad discretion can validly be reduced by a decision-maker to an insistence upon 'imperative' compliance with particular requirements has repeatedly been rejected by the courts."

He concluded that:

"The determination of an application for an extension of time under reg. 5. 10(2) involves a balancing exercise, in which competing considerations must be taken into account.  There are interests of the persons directly concerned in the application and opposition in question.  There are also public interests, which are not necessarily ranged on the same side.  They include the expeditious disposal of matters in the Patents Office, and questions of costs, of efficiency, and of insistence upon proper professional standards being maintained by those who deal with the office.  But they also include, as Kitto J pointed out in Kaiser Aluminium & Chemical Corporation v The Reynolds Metal Co (1969) 120 CLR 136 at 143, ' the public interest that a serious opposition by a person entitled in fact to oppose the grant of a patent should be dealt with on the merits, rather than it should be shut out in consequence of a failure of procedure, lamentable though the failure may be'. This proposition was cited by Bowen CJ in Vangedal-Nielsen v Smith (Commissioner of Patents) (1980) 33 ALR 144 (at 150), where he also set out some of the considerations involved upon an application for an extension of time."

These considerations were also raised in A Goninan & Co Ltd v Commissioner of Patents (1997) 38 IPR 213 where Sackville J adopted the position that the decision-maker was required to give proper, realistic and genuine consideration to the public interest generally and specifically to the opposition proceeding being determined on its merits. In respect of this point, he stated:

"In order for the Commissioner or his delegate to give proper, genuine and realistic consideration to the aspect of public interest I have identified, it is necessary to consider the nature of the evidence the opponent seeks to adduce and the significance of that evidence for the opposition proceedings. I do not mean to suggest that the evidence has to be scrutinised in the same way as would occur at a hearing on the merits. But unless the delegate forms a view as to the issues addressed by the proposed evidence, and whether that evidence is likely to be important in the opposition proceedings, it is difficult to see how proper consideration can be given to the public interest in having such proceedings being determined on its merits."

The relevant principles developed in these decisions may be summarised as follows:

(a)The broad discretion afforded by Regulation 5.10 cannot be reduced to insistence on imperative compliance with particular requirements;

(b)The exercise of this discretionary power requires proper, genuine and realistic consideration of all the relevant aspects that pertain to the application;

(c)The provision of a satisfactory explanation of the delay is a relevant consideration, but is not mandatory;

(d)The public interest in determining a serious opposition on its merits is a relevant consideration and must be balanced with the requirement that matters before the patent office should be dealt with in an efficient, orderly manner and not be unduly prolonged;

(e)The interests of the opponent, the applicant and any other parties are a relevant consideration.

These principles were echoed in the more recent decision in National Starch & Chemical Company v Commissioner of Patents [2001] FCA 33.

I will apply these general principles from the above cases to the present facts, recognising that I must not either grant the extension or refuse it without giving proper consideration to all, relevant circumstances.

RELEVANT CONSIDERATIONS

Explanation of the Delay

HGS submitted that there had been no adequate case made to justify the extension of time.  They pointed out that the onus rests with the party seeking an extension of time to explain or justify the need for the extension with sufficient details of the reasons why the extension is required (see e.g. Dominion Mining Limited v MIM Holdings Limited et al, [1997] APO 27). They contended that use of phrases such as "substantial progress toward the preparation of a draft response to issues raised by the HGS evidence", "substantial progress" and "this is a work on progress" were vague and ambiguous statements. They did not indicate how much progress had actually occurred. They also stated that these phrases suggested that Ludwig did not appear to have been diligent in preparing evidence in reply. Since, in the previous request for an extension of time to serve evidence in reply, Ludwig had said that they had already sent the evidence to its experts, and in this request progress had been made only towards preparation of declarations, the conclusion was that very little progress had been made towards completion of evidence in reply.

Ludwig pointed out that, while Dominion (supra) lays the onus for satisfactory explanation on the requestor, from Ferocem (supra) it follows that a satisfactory explanation or justification is not a mandatory requirement.  They stated that the Goninan (supra) and National Starch (supra) cases reaffirmed this.

Turning to the explanation, Ludwig's points are in regard to the volume, repetitiveness and disorganisation of the evidence in answer, and the fact of the experiments by Professor Alitalo being needed, delaying evidence in reply.

Volume

Regarding volume of evidence in answer, HGS stated that this is not high.  They point out that there are only six expert declarations which range in length from 6 to 30 pages, and that the majority of annexes accompanying these declarations are 5 pages or less.  The remaining annexes consist of documents on the professional backgrounds of the experts, which is not complex information requiring a lot of time to review.  Of the 22 annexes that accompanied the declaration by Gary Baxter Cox, most of these were references of 10 pages or less in length that HGS expected the opponent would be well aware of.  They stated that the evidence could not be considered to be "of any considerable volume", and that the opponent should have been able to complete its evidence in reply by the deadline.  They also stated that the opponent should at this stage have been very familiar with the issues raised in the evidence in answer and since evidence in reply is restricted to rebuttal of the evidence in answer, the opponent should have completed it by now.

Ludwig, as to be expected, disagreed with this.  They pointed out that the declarations comprised some 124 pages of text and 592 pages of annexes.  While Ludwig had no argument that some of the annexes were "biographical", the majority of them were scientific references that had to be reviewed "in the context in which they are relied upon in the Evidence in Answer".  This was a significant process that involved reading and reviewing all 592 pages of the references cited.  This process could be fairly said to take the time already taken, as well as up to and including the extension requested.

While I cannot say with certainty what is or is not voluminous as far as the evidence goes, I note that the same reason was raised in Ludwig's last request for an extension of time to serve evidence in reply.  There was nothing in the explanation advanced for the current extension to indicate that they had done anything more than review the evidence in answer.  They have now had the evidence in answer for 6 months.  In my opinion, this would be more than enough time to review it, even if it was voluminous.  Thus, the reason advanced, by itself, does not justify an extension of time.

Repetitiveness

In regard to the repetitiveness, I do not believe this is a sound ground on which to give an extension of time.  The evidence in answer is bound to be repetitive to some extent, since the experts for the applicant are answering the same evidence in support.  Indeed, I would be surprised if the evidence in answer was not, to a certain extent, repetitive.  Far from slowing down the process of reviewing and preparing a reply, I would think that it would tend to speed it up, since, having found the same point raised earlier in their review of the evidence in answer, it would already have been dealt with, and not need to be addressed again.  This reason does not justify an extension of time.

Disorganisation

On disorganisation of the evidence, HGS stated that, in its view the evidence in answer was not disorganised.  It had been presented in direct response to the opponent's evidence in support, and organised "in a like manner".  The declarations were clear, with the longer declarations including headings to guide the reader.

Mr Ward said that the opponent had organised the evidence in support according to which legal issue was being addressed.  Mr Ward submitted that, in this situation, it would be reasonable to expect the evidence in answer to be presented in the same way.  The evidence in answer, however, was set out according to which scientific issue was being addressed.  The opponent would continue with its process of organising the evidence in reply according to the legal issue.  To achieve this, it was necessary to isolate in the evidence in answer, the material that goes to each legal issue and responding to it in that context.  This was time consuming and justified the extension.  In response to my question, he stated that it was not so much "disorganised" as differently organised.

In my view this is a specious argument.  The parties to an opposition can organise their evidence in any manner they see fit.  They do not, as suggested by Mr Ward, have to necessarily follow the lead of the other party.  I have briefly gone over the evidence and, to my mind, both the evidence in support and evidence in answer are very well organised, although, as pointed out, along different lines.  I do not see how such organisation can cause delay.  In any event, it was Ludwig's own decision to reorganise the evidence in answer.  To my mind, this was a deliberate decision and not something beyond its control that may justify an extension.  In addition, like the issue of volume of evidence, while it may be differently organised, the opponent now has had 6 months to organise the evidence to its liking.  I do not believe that such a process would take more than 6 months.  I also note that, in spite of this "disorganisation", Ludwig had managed to produce a 30-page draft declaration by 15 June 2001.  I do not think that such a reason justifies an extension of time.

Experiments

Turning now to the experiments that are said to be holding up the process.

HGS submitted that Ludwig had not provided any information as to why the experiments had not yet been completed.  No information was provided as to when the experiments were started, the progress so far, or any difficulties encountered.  The phrases "substantial progress" and "this is a work in progress" are vague statements providing no information as to the actual progress.

In his submission, Mr Ward stated that the primary reason for the extension was the need for Professor Alitalo to conduct experiments in response to criticisms made in the evidence in answer to his experiments which formed the basis of his evidence in support.  In its submissions, Ludwig stated that the experiments required in this field of biochemistry "take a reasonable time to design conduct and analyse", and that the time taken so far was "reasonable in the circumstances".

From the McCann declaration, it is clear that, by 14 June 2001, a 30-page, single spaced draft declaration of the evidence in reply had been prepared.  It is also clear from the declaration that, since the draft was being developed and revised to present the response in the context of Professor Alitalo's work, the preparation of all the evidence in reply is dependent on Professor Alitalo completing his experiments.  I note that none of this appeared in the reasons advanced by Ludwig when requesting the extension.  These reasons state that these experiments were being conducted.  However, there was no hint that at least part of the evidence in reply could not be served until the experiments had been completed.  I would have thought that such a situation, which was known on 15 June 2001 (the day the request for extension was filed), would be included in the explanation on the need for an extension, since it directly impacted on the failure to supply evidence in reply within the time limit set.  If such reasons were included in the explanation, it is conceivable that that explanation alone would have justified the extension in the eyes of HGS.  However, they do not appear.

Nevertheless, it is clear from the reasons advanced at the time of application, including the details of the McCann declaration, that the delay in serving evidence in reply has been caused by the necessity for the experiments by Professor Alitalo to be completed.  Until they were completed, the evidence could not be served.

The purpose of Professor Alitalo's experiments in the evidence in support was to determine whether or not the 350 amino acid portion of VEGF2 contained an operative signal peptide, as stated in the application.  His experimental design was to transform mammalian cell lines with an expression vector containing the 350 amino acid VEGF2 sequence and determine whether the cells were secreting VEGF2.  Professor Alitalo was unable to demonstrate that the cells could secrete any VEGF2 protein.  He concluded that the cDNA sequence taught in the opposed application did not contain a functional signal peptide.

HGS, in its evidence in answer, suggested that Professor Alitalo's inability to secrete the VEGF2 protein could have been a result of the conditions that he used for expression and detection rather than an absence of a signal peptide.  They identified a number of steps in Professor Alitalo's protocol which could have caused a lack of expression and/or detection. 

From the reasons provided by Ludwig, Professor Alitalo was intending to address the applicant's criticisms.  It is reasonable to infer from this that Professor Alitalo was conducting experiments investigating the alternative explanations provided by HGS.  I note that, in this field, a negative result (in this case a lack of expression/detection) could be due to a number of factors, and it is clearly relevant to the current proceedings to investigate probable causes of a lack of expression.  There is no suggestion that Professor Alitalo's original experiments were designed with a deliberate aim to demonstrate non-expression or non-detection.  He should be given the opportunity in the evidence in reply to address the criticisms raised in the evidence in answer on the protocols he used.

Such reasons appear to justify an extension of time.

Conclusion

While I agree with HGS that the reasons advanced at the time the application was made do not justify an extension of time, these reasons, including the details set out in the McCann declaration, justify an extension of time.

I note from the McCann declaration that, on 17 July 2001, the experiments had been completed, and, thus, it would appear that the evidence in reply will now be able to be finalised.  I have no doubt that this will occur expeditiously.

I also take this opportunity to note that, from the reasons advanced for the extension of time, it appeared that Ludwig had not been diligent in preparing its evidence in reply.  There was no hint that, at 15 June 2001, a 30-page draft declaration had been prepared.  Indeed the explanation suggested (c.f. "progress has been made toward the preparation of a draft response" in the explanation) that one had not been prepared.  While the McCann declaration makes it clear that, at 15 June 2001, a 30-page draft declaration had been prepared, thereby indicating that Ludwig had been diligent in preparing evidence in reply, this was not included in the explanation.  It would have been helpful if this fact had been included.

The Public Interest

HGS noted that the Commissioner had a duty to ensure that an opposition "does not take longer than was absolutely necessary".  They directed me to Genetics Institute Inc v Kirin-Amgen Inc (1999) FCA 742, where they said the Federal Court clearly directed that opposition proceedings should be a swift and economical means of settling disputes. They also submitted that the public has a lesser interest with the evidence in reply, since evidence in reply cannot introduce new evidence, and the public is already aware of the basis of the opposition through the evidence in support or answer.

Ludwig pointed out that the public interest requires a balancing act.  They directed me to Ferocem (supra) and Goninan (supra) where it was stated that the public interest lies in a serious opposition being determined on its merits.  They also noted that, in the field of molecular biology/biotechnology, "expert evidence is highly relevant to the grounds of the opposition".

As noted above, it is in the public interest that, while oppositions should be dealt with expeditiously, a serious opposition by a person entitled in fact to oppose the grant of a patent should be dealt with on its merits, rather than be shut out as a consequence of a failure of procedure, lamentable though the failure may be.  It also follows from National Starch (supra), where it was said:

"By failing to consider the significance of the evidence in respect of which the extension of time was sought in the context of the patent specification, the grounds of opposition and the particulars of the grounds and the material which had already been filed, the delegate failed to give proper, genuine and realistic consideration to the significance of that evidence, which had a flow on consequence in relation to the consideration of the public interest in determining a serious opposition on its merits."

that the nature and significance of the evidence being adduced is a relevant consideration. 

It is clear from the evidence already filed that a serious opposition is in train.  In the evidence in answer, serious questions were raised regarding the experimental procedures set out in Professor Alitalo's evidence in support.  It is apparent that the evidence in reply relies on the results of Professor Alitalo's experiments which were constructed to respond to the evidence in answer.  While HGS may be correct in its submission that the public interest is less with the evidence in reply, it is also in the public interest that an opposition be decided on its merits.  Evidence in reply is an integral part of any opposition process.  While it is restricted to replying to the evidence in answer this does not mean it is not important.  To prevent the opponent from replying to the questions raised in the evidence in answer, thereby not having the case decided on its merits, would not be in the public interest.

On balance, I am satisfied that the public interest lies in granting the extension.

Interest of the Parties

HGS state that they wish to resolve the opposition in an expeditious manner, and would be disadvantaged by the protraction of the case.  They state that Ludwig may be disadvantaged, however, this is due entirely to the way they have chosen to handle the case.  There is no evidence that "substantial actions" had taken place prior to 15 March 2001.

Ludwig state that they have a legitimate interest in opposing the grant of the patent, and that they have conducted the proceedings in an expeditious and timely manner in view of the complexity and technical nature of the case.  Refusing the extension of time would prejudice them and prevent them from filing evidence that is properly directed to the issues of the case.  They state that the conduct of HGS to date reflects an awareness of the complexity and significance of the opposition, and they will not be disadvantaged by the extension, which is a result of the manner in which HGS presented its evidence.  At the hearing Mr Ward also informed me that, barring unforeseen circumstances, the evidence in reply would be completed by 15 September 2001.

Clearly the interests of Ludwig are in obtaining the extension in order to serve its evidence in reply.  The facts suggest that they would be prejudiced if I were to refuse the extension and not allow filing of evidence that replies to the criticisms raised in the evidence in answer.

I believe the interests of HGS are clearly in not having the present opposition proceedings delay the substantive opposition.  However, while HGS say they will be disadvantaged, I am not aware of any special reasons, and HGS did not provide any evidence to suggest the contrary, which would specifically disadvantage them if the present extension were granted.

On balance, taking into account the fact that Professor Alitalo's experiment are now complete, and the undertaking made by Ludwig that evidence in reply would be completed by 15 September 2001, I believe the interests of Ludwig in having the opportunity to present evidence in reply, particularly to the criticisms of the evidence of Professor Alitalo, outweighs the interests of HGS in this instance.  I am mindful that I should give due consideration to the undue delay of the substantive opposition.  However, this is just one consideration, and is not, in my opinion, the overriding one in the present circumstance.

CONCLUSION

I find that the reasons advanced by Ludwig, including the details set out in the McCann declaration, make out a proper case in its application for an extension of time.  While the reasons advanced with the application did not clearly show any link between Professor Alitalo's work and the evidence in reply, when the detail in the McCann declaration is taken into account, including the consideration that Professor Alitalo should be given the opportunity in the evidence in reply to address the criticisms raised in the evidence in answer, the reasons justify an extension of time.  In addition, such an extension is in the public's interest since, if the extension was not allowed, the opponent would be shut out from answering criticisms made in the evidence in answer, and the opposition would not be decided on its merits.  Furthermore, there is no evidence to suggest that HGS would be unduly disadvantaged by the extension being granted.

Consequently, I am reasonably satisfied that an extension of time is appropriate in all of the circumstances.  I therefore allow the extension of time for the period requested, that is, from 15 June 2001 to 15 September 2001.  Furthermore, since the experiments have now been completed, I expect Ludwig to proceed expeditiously with the preparation of its evidence in reply.  I also expect that, if unforeseen circumstances necessitate a further extension being requested, Ludwig will provide full reasons to justify such an extension.

COSTS

The power to award costs is based on section 210 and regulation 22.8.  The normal practice is that costs should follow the event.

In its submissions, HGS stated that they had notified Ludwig in a letter dated 27 March 2001 that they would "take objection in the future if the extension application is unjustified".  They followed this saying that, since Ludwig had not provided sufficient justification for the extension, they were aware that HGS would object.  Since Ludwig was aware that this would happen, and HGS had been put to the expense of objecting to the extensions, costs should be awarded in favour of HGS.

Ludwig submitted that the extension application provided on its face adequate reasons to justify it.  They also submitted that considerations of both the interests of the public and HGS in ensuring that the substantive opposition be heard on its merits meant that the opposition to the extension application by HGS was unnecessary and unjustified.  In light of this they submitted that Ludwig be awarded costs.

In this instance, even though I have granted the extension of time sought, I find that, based on the explanation and justification for delay provided in the application, HGS was justified in its opposition to the extension.

Consequently, I award costs against Ludwig.

GREG POWELL
Delegate of the Commissioner of Patents

Patent attorneys for the applicant  :  Wray & Associates, Perth

Patent attorneys for the opponent   :  Spruson & Ferguson, Sydney