Innovia Security Pty Ltd v OVD Kinegram AG - [2015] APO 26

IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Innovia Security Ptd Ltd v OVD Kinegram AG [2015] APO 26

Patent Application: 2008314093

Title:Multilayer body and method for producing a multilayer body

Patent Applicant:                   OVD Kinegram AG
Opponent:  Innovia Security Ptd Ltd
Delegate:  Xavier Gisz
Decision Date:  17 June 2015
Hearing Date:  25 March 2015, in Canberra

Catchwords: PATENTS - opposition to the grant of the patent under s 59 – opposed on the basis of novelty, inventive step, full description, fair basis, and clarity – grounds of novelty, full description, fair basis and clarity not made out – documents considered under Reg 5.23 –consideration of inventive step under s 7(3)(a) and s 7(3)(b) – Claims 1-18 found to lack an inventive step in light of US 2006/0003295 – Claims 1-18 found to lack an inventive step in light of a combination of US 2006/0003295 and conference paper “Moiré methods for the protection of documents and products: A short survey”

Representation: Patent applicant: Mark Horsburgh and Jon Wright of Fisher Adams Kelly
Opponent:Jeremy Robinson of Watermark and Ian Lindsay of Innovia Security Ptd Ltd

IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Patent Application: 2008314093

Title:Multilayer body and method for producing a multilayer body

Patent Applicant: OVD Kinegram AG
Date of Decision: 17 June 2015
DECISION
Claims 1-18 lack an inventive step.
I allow the applicant 60 days from the date of this decision in which to propose suitable amendments to overcome the above findings.
Costs are awarded against the Applicant, OVD Kinegram AG.
REASONS FOR DECISION
Background

Australian Patent Application No. 2008314093 is entitled “Multilayer body and method for producing a multilayer body” (the Application) in the name of OVD Kinegram AG (the Applicant) and was advertised as accepted on 31 January 2013.
The Application is the Australian national phase entry of PCT/EP2008/008711 filed on 15 October 2008 which claims priority from German application DE 10 2007 049 512.0. The earliest priority date is 15 October 2007.
An opposition to the grant of the patent was filed by Innovia Security Pty Ltd (the Opponent) on 30 April 2013 (the Opposition). The Opponent filed a Statement of Grounds and Particulars on 30 July 2013.
The Applicant filed a request under section 104 to amend the complete specification on 19 March 2014. The request included amendments to the claims of the patent specification. The amendment was allowed on 21 July 2014. A request by the Opponent to amend the Statement of Grounds and Particulars was filed on 6 June 2014 and allowed on 1 July 2014. The opposition was heard on 25 March 2015.
The request for examination for this application was filed prior to 15 April 2013. As a consequence, substantive amendments of the Patents Act brought about by the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 do not apply to the present patent application. In other words, the consideration of grounds of opposition is under the Act as it existed prior to the Raising the Bar amendments. However, the notice of Opposition was filed after 15 April 2013, thus the opposition procedures that apply are those prescribed under the Regulations of the Intellectual Property Laws Amendment (Raising the Bar) Act 2012.
Preliminary matters - Regulation 5.23
At the hearing the Applicant questioned the publication date of one of the pieces of evidence, Exhibit BAH-8 (known as D5 throughout this decision), which has the following bibliographic details:
Moiré methods for the protection of documents and products: A short survey
Amidror, Itzhak; Chosson, Sylvain; Hersch, Roger D
Journal of Physics, Conference Series 77, Article 012001
At the hearing I noted that the information contained in that document was significant, and indeed potentially pivotal, in the determination of the grounds of inventive step. I made clear my intention to subsequently direct the parties to provide additional information pertaining to the publication date of the document. The parties agreed that such a direction should be made, and the direction was made on 26 March 2015.
The Opponent provided their additional information (a declaration by Jeremy Robinson) to help establish the publication date of that document on 31 March 2015. The Applicant provided additional information (in the form of submissions) on 28 April 2015 in response to the information provided by the Opponent.
I advised the parties on 1 May 2015 that I would rely upon this information under Regulation 5.23, and invited both parties to provide further evidence and/or submissions. Submissions in relation to the Regulation 5.23 information were filed by the Applicant and Opponent on 14 May 2015 and 15 May 2015 respectively.
The declaration of Mr Robinson states:
“Before the hearing, I had emailed the publisher of the journal in which D5 was first published (Journal of Physics: Conference Series volume 77) requesting they provide me with the publication date of D5.
I have since received a letter from Ms Sarah Toms, Conference Publishing Coordinator, IOP Conference Series (attached as Exhibit JNR-3), stating the following:
This document is to confirm that Journal of Physics: Conference Series volume 77 was published online at on 17 August 2007, and forms part of the proceedings of the XII International Congress for Stereology: Anti-counterfeit Image Analysis Methods, 5‑6 September, 2007, Centre des Congrès, Saint Etienne, France.
I note that this evidences that D5 was made available to the public on 17 August 2007. I further note that this date is earlier than the priority date of the opposed application, being 15 October 2007.”
In response, the Applicant made several submissions about the veracity of the statement made by Ms Toms. For example, the Applicant submitted:
“Applicant argues that it seems highly unlikely that a full conference paper would be made available to the general public prior to the actual presentation of the conference paper taking place. Rather, a more likely scenario is that the full conference paper was published online some time after the conference. Could it be that Ms Sarah Tom’s statement merely refers to the online publication of a preconference announcement detailing the titles and corresponding abstracts of the full conference papers to be presented on 5 – 6 September 2007, as opposed to the full conference papers themselves?”
As the current Conference Publishing Coordinator of the IOP Conference Series, Ms Toms is clearly a person with highly relevant knowledge of the publication of conference papers and consequently her email is given significant weight. In the absence of contrary evidence or submissions from a person with comparable knowledge, I accept Ms Toms email on its face.
Ms Toms’ statement is quite clear – the publication of the entirety of the “Journal of Physics: Conference Series volume 77” which includes document D5 was published online and thus available to the public on 17 August 2007. I am satisfied that the publication date of the document D5 is 17 August 2007.
Evidence
The Opponent’s Evidence in Support comprises three declarations and supporting exhibits:
- A declaration of Dr Bruce Hardwick filed on 30 October 2013 (the First Hardwick Declaration) including supporting exhibits BAH-1 to BAH-12.
- A declaration of Mr Jeremy Robinson filed on 30 October 2013 (the Robinson declaration) including supporting exhibits JNR-1 and JNR-2.
- Another declaration of Dr Bruce Hardwick filed on 23 December 2013 (the Second Hardwick Declaration) including supporting exhibits BAH-13 and BAH-14.
The Applicant’s Evidence in Answer comprises two declarations and supporting exhibits.
- A declaration of Ir Karel Schell filed on 2 April 2014 (the First Schell Declaration) including supporting exhibits KS-1 to KS-6.
- Another declaration of Ir Karel Schell filed on 2 April 2014 (the Second Schell Declaration).
The Opponent’s Evidence in Reply comprises one declaration.
- A declaration of Dr Bruce Hardwick filed on 2 June 2014 (the Third Hardwick Declaration).
Specification
The specification (as amended on 19 March 2014) ends with 18 claims comprising one independent claim and 17 appended claims. The claims are reproduced below:
1.A multilayer body having a transparent first layer in which a multiplicity of microlenses is shaped, and a second layer which is arranged beneath the first layer in a fixed position relative to the first layer and which has a multiplicity of microscopic structures,
wherein the microlenses are cylindrical lenses of a length of more than 2 mm and a width of less than 400 μm which are arranged in accordance with a microlens grid spanning a first co-ordinate system having a co-ordinate axis X1, which is determined by the focal point lines of the cylindrical lenses, and a coordinate axis Y1 which is different in relation thereto,
and wherein the microscopic structures are in the form of microimages distorted along a transverse axis with respect to a longitudinal axis in accordance with a transformation function and the microscopic structures are arranged in accordance with a microimage grid spanning a second co-ordinate system having a co-ordinate axis X2 and a co-ordinate axis Y2 which is different in relation thereto,
and wherein, in a region of the multilayer body in which the microlenses of the microlens grid and the microscopic structures of the microimage grid are in superposed relationship, the lens spacing determined by the spacing of the focal point lines of the cylindrical lenses and the microimage spacing which is determined by the spacing of the centroids of the microimages of adjacent microlenses and microscopic structures, from each other differ by not more than 10%,
and wherein the co-ordinate axis Y1 and the co-ordinate axis Y2 as well as the co-ordinate axis X1 and the co-ordinate axis X2 are respectively oriented within -5° and + 5° of mutually parallel relationship in the region and the line spacing and the microimage spacing of adjacent microlenses and microscopic structures differs from each other in the region,
and wherein the microimages of the microimage grid in the region are formed by microimages formed by a geometrical transformation of a basic image including rotation and/or increase or reduction in size of the basic image and subsequent distortion in accordance with the transformation function.
2.A multilayer body according to claim 1 wherein that the cylindrical lenses are of a width of less than 400 μm, preferably a width of 150 to 30 μm and/or the cylindrical lenses are of a length of between 2 mm and 100 mm and/or the cylindrical lenses have a structure depth of 2 μm to 100 μm, preferably a structure depth of 15 μm to 40 μm.
3.A multilayer body according to claims 1 or 2 wherein the microlens grid is a one‑dimensional grid.
4.A multilayer body according to anyone of claim 1 to 3 wherein the grid spacing of the microlens grid steadily changes in the region or the grid spacing of the microlens grid is periodically varied in the region or in that the grid spacing of the microlens grid is constant in the region.
5.A multilayer body according to any one of the preceding claims wherein the grid spacing of the microlens grid corresponds to the sum of the width of one of the microlenses and an additional spacing between 0μm and 20% of the structure depth of the microlenses.
6.A multilayer body according to any one of the preceding claims wherein the microimages are of a width of less than 400 μm and a length of more than 2 μm, said length being determined in its orientation by the longitudinal axis.
7.A multilayer body according to any one of the preceding claims wherein the longitudinal axis of the distortion is oriented parallel to the co-ordinate axis X1 or that the co-ordinate axis X2 is determined by the longitudinal axis of the distortion.
8.A multilayer body according to any one of the preceding claims wherein the transverse axis of the microimages with respect to the longitudinal axis of the microimages is upset by the transformation function by more than 5 times, preferably more than 10 times.
9.A multilayer body according to any one of the preceding claims wherein the microimage grid is a two-dimensional microimage grid with two or more microscopic structures arranged in succession in the direction of the co-ordinate axis X2.
10.A multilayer body according to claim 9 wherein the grid spacings, of the microimages in the region are constant in the direction of the coordinate axis Y2 and the grid spacings of the microimages vary in the direction of the co-ordinate axis X2 in dependence on the co-ordinate y determined by the co-ordinate axis Y2 and/or the co-ordinate x determined by the co-ordinate axis X2, in accordance with a function F(x,y).
11.A multilayer body according to claim 9 wherein the grid spacings of the microimages in the region are respectively constant in the direction of the co‑ordinate axis Y2 and the co-ordinate axis X2, but the centroids of the microimages disposed in mutually juxtaposed relationship in the direction of the co-ordinate axis X2 have a displacement relative to each other.
12.A multilayer body according to any one of the preceding claims wherein in a first subregion of the region and in a second subregion of the region, that is arranged beside the first subregion, the line spacing determined by the focal point lines of the cylindrical lenses and/or the microimage spacing determined by the spacing of the centroids of the microimages, differ from each other, especially in that in the first subregion the difference of the microimage spacing and the microlens spacing is positive and in the second subregion it is negative.
13.A multilayer body according to any one of the preceding claims wherein in a first subregion of the region and in a second subregion of the region, that is arranged beside the first subregion, the respective microimage grid and/or the microlens grid have a phase displacement relative to each other in relation to the co-ordinate axis Y1 and Y2 respectively and/or in that in a first subregion of the region and in a second subregion of the region, that is arranged beside the first subregion, the coordinate axes Y1 and Y2 and/or X1 and X2 respectively include a different angle and/or in that in a first subregion of the region and in a second subregion of the region, that is arranged beside the first subregion, the cylindrical lens have a different focal length.
14.A multilayer body according to any one of the preceding claims wherein the first and/or second co-ordinate system is formed by a coordinate system having circular or looped line-shaped co-ordinate axes.
15.A multilayer body according to any one of the preceding claims wherein the second layer has a replication lacquer layer with diffractive structures shaped thereinto.
16.A multilayer body according to any one of the preceding claims wherein in the region of the microscopic structures a first surface relief associated with the microscopic structures is shaped into the second layer, which surface relief differs from the surrounding surface relief of the second layer.
17.A multilayer body according to claim 16 wherein the second layer has coloured and transparent regions or differently coloured and transparent regions and the microscopic structures are formed by the coloured regions or are formed by the transparent regions.
18.A process for producing a multilayer body according to claim 1 wherein a second layer having a multiplicity of microscopic structures is applied to a third layer, a transparent first layer is arranged above the third layer so that the second layer is arranged between the first and the third layers and the first and the third layers respectively project beyond the second layer on all sides, and the first, second and third layers for forming the multilayer body are laminated together by means of a tool engaging on the top side of the first layer and the underside of the third layer, using heat and pressure, wherein in the top side of the first layer a lens grid is shaped into the surface of the first layer by means of a pressing plate in which a negative form of a lens grid is shaped and which is part of the tool.
The invention
The invention relates to a device formed from a microlens array positioned directly above a corresponding microimage array. Each microlens magnifies a corresponding microimage located beneath the microlens. The microlenses and microimages collectively can form interesting visual effects that become apparent when the device is tilted with respect to the viewer. The invention is specific to cylindrical microlenses.
The interesting visual effect in some embodiments of the invention is the apparent translational animated movement of an image as the device is tilted. In another embodiment of the invention, there is an apparent animated change in size or rotation of an image as the device is tilted.
Moiré effect
The invention is essentially based on the moiré effect. The moiré effect requires two layers; the top revealing layer is superimposed over and thus decodes information in the bottom layer. The top layer is a periodic structure that isolates (i.e. shows only part of) the features of the bottom layer of the same period; this is known as the moiré image.
1D and 2D moiré effect
The moiré effect can be revealed using a variety of revealing layers. One type of revealing layer is a series of elements that repeat in one direction, i.e. a 1 dimensional array. For example a series of parallel gratings or cylindrical lenses. Another type of revealing layer is a 2 dimensional array of dots or spherical lenses. The present invention is specific to 1D moiré effect.
Three types of image
There are three image types in a lens array 1D moiré effect.
The microimage is the actual printed image on the bottom layer.
The basic image is theoretically what the actual image looks like before it has undergone a geometrical transformation.
The moiré image is the image that the viewer sees, i.e. the basic image after it has undergone a geometrical transformation.
Line grating
In a 1D moiré effect, a line grating is moved over the microimage with movement restricted to a single direction.
In theory it is also possible to use a line grating in a tilting manner to reveal the animated images. This would require a significant vertical separation between the top and bottom layers so there is a perceived relative movement between layers (this is known as parallax), and this method of revealing a moiré is not used in the art.
Cylindrical lens array
Typically, a lens array will be in a fixed arrangement above the microimages, and the device tilted to reveal the animated images.
In theory it is also possible to use a lens array in a non-fixed arrangement with respect to the microimage layer. This would require the lens array to be moved over the microimages with movement restricted to a single direction.
Line grating vs lens array
Although there are many similarities between a moiré effect formed by a lens array and a line grating, there are also significant differences.
A line grating will isolate (i.e. show only) parts of the microimages between the lines. Thus a wider gap between line gratings will result in a ‘bright’ but ‘coarse’ moiré effect, while a narrower gap between line gratings will result in ‘dark’ but ‘fine’ moiré effect.
A lens array will isolate parts of the microimages at the focal point of the lenses. This results in a both a ‘bright’ and ‘fine’ Moiré effect.
A cylindrical lens array will magnify the microimages in one direction. This means that the microimages must be ‘compressed’ in the same direction to compensate for the magnification.
Visual effects

The moiré effect can be used to display a single image or multiple images. Scanning through the moiré images by a continuous change in alignment of the two layers appears as an animation. The present invention is specific to animated moiré images.
The animated moiré effect changes in a continuous manner. A similar visual effect that changes in a discrete manner is known as lenticular printing.
Lenticular printing suffers from two problems. Firstly, as there is no requirement for continuity between ‘interlaced’ images the animation effect tends to be jagged (not smooth). Secondly, as the isolating mechanism (in this case the focal point of lenses) moves between the ‘interlaced’ images, a combination of the two adjacent images is revealed which also tends to make a jagged animation effect.
Moiré image animation does not suffer from the aforementioned problems with the lenticular printing: the animation is smooth and there is no problem with intermediate combined images.
Moiré animation is achieved by using continuous animation effects; continuous animation effects are based on five basic geometrical transformations:
1. Translation
2. Expansion/reduction
3. Rotation
4. Stretch
5. Reflection
Mapping the moiré effect to the microimages
To achieve the desired moiré-effect animation it must be mapped to an arrangement of microimages. This mapping is achieved by varying the following parameters of the microimages:
- Vertical spacing
- Horizontal spacing
- Orientation
- Size vertical
- Size horizontal
- Oblique stretch
These parameters of microimages are illustrated in the examples below using the letters ABC as the example microimage.
Vertical spacing
Horizontal spacing

Orientation
Vertical size
Horizontal size
Oblique stretch
All of these microimage parameters must be defined to achieve the desired animation. It is beyond the scope of this decision to describe how the parameters are defined since the mapping functions are a set of complex algorithms and equations. It is noted that constraints can be placed on the parameters to avoid undesirable animation effects (e.g. non-smooth motion).
Claim Construction
Claim 1 can be separated into eight integers, which I will assign the letters a to h.
a) Multilayer body
A multilayer body having a transparent first layer in which a multiplicity of microlenses is shaped, and a second layer which is arranged beneath the first layer in a fixed position relative to the first layer and which has a multiplicity of microscopic structures
I construe this to mean that the microlenses and microimages are fixed with respect to each other.
The term microstructure is commonly used in the art to describe a raised or recessed portions, with each portion having at least one dimension less than 1mm. These microscopic structures collectively form a visual effect similar to printing.
However, in contrast to the common meaning of microstructure, the description uses the term microstructure to be synonymous with the term microimage.
The description states at page 2 lines 28 and 29:
“…the microscopic structures are in the form of microimages…”
And at page 7 lines 11 to 13:
“Preferably the microscopic structures are in the form of identical microimages which are distorted along a transverse axis in relation to a longitudinal axis in accordance with a transformation function.”
Overall, I am satisfied that the term microstructure as used in the specification is synonymous with the term microimage.
b) Cylindrical microlenses
wherein the microlenses are cylindrical lenses of a length of more than 2 mm and a width of less than 400 μm
The claimed invention is limited to an array of cylindrical lenses. Most embodiments of the invention use cylindrical lenses. However, there are also embodiments using lenses which are toroidal or ‘looped line-shaped lines’ (page 11 lines 28 to page 12 line 2).
The Applicant submitted that the embodiments of concentric toroidal lenses and lenses which followed ‘looped line-shaped lines’ where within the scope of ‘cylindrical lenses’. The Applicant further submitted that this is how a person skilled in the art would understand the term, however provided no evidence in support of this submission.
47. Prior art document D10 (US2006/0003295 discussed further in the decision below) relevantly discusses cylindrical lenses at paragraph 176:
“Although the revealing layer (line grating) will generally be embodied by a film or plasic support incorporating a set of transparent lines, it may also be embodied by a line grating made of cylindric microlenses.
…
One can also use as revealing layer curvilinear cylindric microlenses”
This suggests that cylindrical microlenses are indeed straight, unless explicitly modified by a term such as ‘curvilinear’. This is consistent with the plain meaning of the word cylinder.
Consequently, I construe the term ‘cylindrical lenses’ to be specific and limited to straight cylindrical lenses. An array of cylindrical lenses reveals a 1 dimensional moiré effect thus all following discussion is specific to a 1 dimensional moiré effect.
c) Microlenses are parallel to a common axis
which are arranged in accordance with a microlens grid spanning a first co-ordinate system having a co-ordinate axis X1, which is determined by the focal point lines of the cylindrical lenses, and a co-ordinate axis Y1 which is different in relation thereto,
This can be simplified to say the microlenses have a common parallel axis (the microlens axis).
d) Microimages are distorted to compensate for distortion due to the magnification
and wherein the microscopic structures are in the form of microimages distorted along a transverse axis with respect to a longitudinal axis in accordance with a transformation function
The microimages must be distorted (compressed) to compensate for distortion (stretch) due to the magnification.
e) The position and orientation of microimages is defined in relation to two axes
and the microscopic structures are arranged in accordance with a microimage grid spanning a second co-ordinate system having a co-ordinate axis X2 and a co-ordinate axis Y2 which is different in relation thereto
This can be simplified to say that the microimage array has a common parallel axis (the microimage axis).
f) The difference in spacing of the microimages in relation to the spacing of the microlenses is less than 10%
and wherein, in a region of the multilayer body in which the microlenses of the microlens grid and the microscopic structures of the microimage grid are in superposed relationship, the lens spacing determined by the spacing of the focal point lines of the cylindrical lenses and the microimage spacing which is determined by the spacing of the centroids of the microimages of adjacent microlenses and microscopic structures, from each other differ by not more than 10%,
This can be simplified to say that the offset between an adjacent pair of focal points of microlenses and an adjacent pair of centroids of microimages is not more than 10%.
g) The orientation of the microimages in relation to the microlens array is within ±5°
and wherein the co-ordinate axis Y1 and the co-ordinate axis Y2 as well as the co-ordinate axis X1 and the co-ordinate axis X2 are respectively oriented within -5° and +5° of mutually parallel relationship in the region and the line spacing and the microimage spacing of adjacent microlenses and microscopic structures differs from each other in the region,
This can be simplified to say the microlens axis and microimage axis are oriented within -5° and +5° of each other.
h) The moiré images form an animation of rotation and/or enlargement
and wherein the microimages of the microimage grid in the region are formed by microimages formed by a geometrical transformation of a basic image including rotation and/or increase or reduction in size of the basic image and subsequent distortion in accordance with the transformation function.
The Applicant argued that this meant that, as the device is tilted, the visual effect (animation) was of an image that expands, reduces and/or rotates. The Opponent was in substantial agreement on the meaning of this integer of the claim. This interpretation is consistent with the description which states at page 22 lines 18 to 20:
“…when the multilayer body is tilted, to cause a radial motion outwardly with a simultaneous change in size (an increase in size of the 20 image impression for the viewer, here the words 'OK').”
This integer of the claims is difficult to understand as it attempts to define an animated visual effect with reference only to the physical features of the device. Although this integer could have been expressed more clearly, I am satisfied that this feature of the claim defines a geometrical transformation which occurs as the device is tilted and furthermore must include an animated rotation, increase or reduction in size of a basic image.
Novelty
D1 - WO 2007/076952 A2 (GIESECKE & DEVRIENT GMBH) 12 July 2007
The Opponent raised novelty in relation to D1 in the Statement of Grounds and Particulars but, as a result of the narrowing amendments to the claims made during the evidentiary stages of the opposition, they did not argue that the claims lacked novelty in light of D1 at the hearing. Regardless, I will consider the novelty of the claims with respect to D1 For two reasons. Firstly, in my opinion it appears to be at least a prima facie relevant to the claims despite the amendments. Secondly, the consideration of D1 will be illuminative in understanding the invention and in understanding other prior art and indeed other grounds of opposition. WO 2007/076952 is written in German and an English translation of this document was provided in the evidence (BAH-4).
a)Multilayer body
A multilayer body having a transparent first layer in which a multiplicity of microlenses is shaped, and a second layer which is arranged beneath the first layer in a fixed position relative to the first layer and which has a multiplicity of microscopic structures
D1 discloses a multilayer body (190) having a transparent first layer in which a multiplicity of microlens (194) is shaped, and a second layer which is arranged beneath the first layer in a fixed position (it is inherent that they are in fixed position as the multilayer body is understood to be a single integral device) and which has a multiplicity of microscopic structures (192).
b)Cylindrical microlenses dimensions
D1 discloses the microlenses are cylindrical lenses (194) of length of more than 1mm (page 9 line 9) and a width of between 5µm and 50µm (page 9 line 11). Figure 1 shows two security elements 12 and 16; it is clear that the security element 16 has dimensions of greater than 2mm, and thus it is inherent that the cylindrical lenses in that embodiment are greater than 2mm in length.
c)Microlens are parallel to a common axis
The microlenses are aligned with an axis (clearly visible in Figure 15b).
d)Microimages are distorted to compensate for distortion due to the magnification
D1 discloses the microscopic structures (192) are in the form of microimages distorted along a transverse axis with respect to a longitudinal axis (Figure 19c).
e)The position and orientation of microimages is defined in relation two axes
The microimages are aligned with an axis (Figure 15b).
f)The difference in spacing of the microimages in relation to the spacing of the microlenses is less than 10%
D1 discloses the focal point of microlenses and centroids of microimages appear to have identical spacing (Figure 15b) and thus have a difference in spacing of less than 10%.
g)The orientation of the microimages in relation to the microlens array is within ±5°
D1 discloses the microlens axis and microimage axis to be aligned (figure 15b) and are thus within the range of orientation of within -5° and +5°.
h)The moiré images form an animation of rotation and/or enlargement
D1 discloses various visual effects possible using the 1D moiré effect. The main visual effects include movement and magnification. D1 provides an explanation of the magnification at page 50 lines 3 to 11 of the English translation (the matrix equations have been removed for simplicity):
“The visual appearance of the moiré-magnified image 202 is achieved with a moiré magnifier in which the micromotif element 204 distorted with the matrix
[defined matrix transformation]
depicted in fig. 18(a), is arranged periodically with the displacement vector [defined vector] as the motif grid 206, as shown in fig.18(b), and in which the motif grid 206 is viewed through a cylindrical lens grid having lens spacing d and axis direction ɸ, as shown in figure 15(b).”
This is a description of a ‘static’ magnification, and not an animated expansion.
Further at D1 it is stated at page 57 lines 1 to 4:
“The lens grid and the motif grid need not be locally constant. The variables t₁₁, t₁₂, u₁₁, u₂₁, d, ɸ can also vary location dependently in such a way that different predetermined magnifications, distortions and/or different movement behaviour result at different locations in the moiré image.”
Although this excerpt arguably provides a generalised procedure that may encompass an animated expansion, I am not satisfied that this provides clear and unmistakable directions to do so. D1 does not disclose an animated rotation, expansion or reduction of a basic image.
D1 novelty summary
D1 discloses the features defined in claim 1 with the exception of an animated rotation, expansion or reduction of a basic image. Claim 1 is novel in light of D1.
D10 – US2006/0003295 A1 (HERSCH et al) 5 January 2006
a)Multilayer body
D10 discloses a transparent first layer in which a multiplicity of microlenses are shaped (paragraphs 29, 95, 176), and a second layer (paragraph 92) which is arranged beneath the first layer and which has a multiplicity of microimages (paragraph 176).
The first layer is not explicitly disclosed to be in a fixed relationship with the second layer. Indeed, most of the embodiments are to a first layer that is moveable in relation to the second layer.
b)Cylindrical microlens dimensions
D10 discloses the microlenses are cylindrical lenses (paragraph 29 and 176). Since the period of the base band images is less than 333µm (1/3mm), it is inherent that the cylindrical lenses must also have a width of less than 333µm.
The length of the microlenses being at least 2 mm is inherent to D10, since the devices on which the microlenses are being used (figure 30A to 36) have their dimensions of at least 2mm.
c)Microlens are parallel to a common axis
The concept of microlenses being aligned with an axis is shown in D10 at figure 10. D10 discloses at paragraph 95 that the line grating can be substituted with cylindrical lenses.
d)Microimages are distorted to compensate for distortion due to the magnification
Since D10 discloses the use of cylindrical microlenses it is implicit that the microimages are designed to compensate for the distortion due to magnification.
e)The position and orientation of microimages is defined in relation to an axis
The concept of line grantings having an axis is shown in figure 10. The embodiment shown in Figure 22B also show the microimages having an axis.
f)The difference in spacing of the microimages in relation to the spacing of the microlenses is less than 10%
D10 discloses that the microimage spacing is within 10% of the microlens spacing (paragraph 117).
g)The orientation of the microimages in relation to the microlens array is within ±5°
Figure 22A of D10 is the embodiment that the Opponent argues discloses an animated rotation and/or enlargement. It appears that the alignment of the microimages does not exceed ±5° from the horizontal microlens axis.
h)The moiré images form an animation of rotation and/or enlargement
D10 discloses various visual effects possible using the 1D moiré effect. The main visual effects include movement and magnification (paragraph 150). The microimages in this embodiment are shown in Figures 22A.
D10 novelty summary
D10 discloses all features defined in claim 1 except having a fixed relationship between the first and second layers.
Inventive step
The relevant parts of Section 7 state:
(2) For the purposes of this Act, an invention is to be taken to involve an inventive step when compared with the prior art base unless the invention would have been obvious to a person skilled in the relevant art in the light of the common general knowledge as it existed in the patent area before the priority date of the relevant claim, whether that knowledge is considered separately or together with the information mentioned in subsection (3).
(3) The information for the purposes of subsection (2) is:
(a) any single piece of prior art information; or
(b) a combination of any 2 or more pieces of prior art information;
being information that the skilled person mentioned in subsection (2) could, before the priority date of the relevant claim, be reasonably expected to have ascertained, understood, regarded as relevant and, in the case of information mentioned in paragraph (b), combined as mentioned in that paragraph.
The test for obviousness is whether it would have been a matter of routine to proceed to the claimed invention. In Wellcome Foundation Ltd v V.R. Laboratories (Aust.) Pty Ltd [1981] HCA 12 Justice Aickin stated:
“The test is whether the hypothetical addressee faced with the same problem would have taken as a matter of routine whatever steps might have led from the prior art to the invention, whether they be the steps of the inventor or not.”
The question of whether a person skilled in the art would have considered it routine to combine the teachings of two or more prior art documents for the purposes of showing a lack of inventive step, commonly known as mosaicing, is considered in the Minnesota Mining & Manufacturing Co v Beiersdorf (Australia) Ltd [1980] HCA 9; (1980) 144 CLR 253 (16 April 1980). Although this decision was made under the Patents Act 1952, it is still instructive when considering ‘mosaicing’ of documents under s 7(3)(b) of the current Act. In that decision Aickin J stated at paragraph 116:
“In the case of alleged lack of an inventive step the question of making a mosaic must operate (if at all) in a very different matter [to that of novelty]. An allegation of want of inventive step is not made out by saying you may take one or two, or twenty-one or twenty-two, prior publications and then select from them appropriate extracts or pieces of information, which will add up to the invention claimed and so demonstrate that it was obvious. So to proceed is to mistake the nature of an invention and the nature of the objection of obviousness. The question is, is the invention itself obvious, not whether a diligent searcher might find pieces from which there might have been selected the elements which make up the patent. If this were not so, there could never be a valid patent for a new combination of old integers. The proper question is not whether it would have been obvious to the hypothetical addressee who was presented with an ex post facto selection of prior specifications that elements from them could be combined to produce a new product or process. It is rather whether it would have been obvious to a non-inventive skilled worker in the field to select from a possibly very large range of publications the particular combination subsequently chosen by the opponent in the glare of hindsight and also whether it would have been obvious to that worker to select the particular combination of integers from those selected publications. In the case of a combination patent the invention will lie in the selection of integers, a process which will necessarily involve rejection of other possible integers. The prior existence of publications revealing those integers, as separate items, and other possible integers does not of itself make an alleged invention obvious. It is the selection of the integers out of, perhaps many possibilities, which must be shown to be obvious.”
The person skilled in the art

Both parties agreed that the person skilled in the art was someone involved in the research and development of security devices.
I consider both Dr Hardwick and Mr Schell, with their extensive experience in security documents, are experts who can provide useful insight into the knowledge and expected behaviour of a person skilled in the art.
Dr Hardwick states at paragraphs 15-19 of his first declaration the sources of information he was aware of and consulted before the priority date including patents, text books, and conference papers. I am satisfied Mr Hardwick’s experience is representative of the sources of information a notional person skilled in the art could be expected to review.
The problem
The description acknowledges that multilayer bodies with microlenses and microimages are used as a security device in items such as banknotes or credit cards (page 1 lines 10 to 12). The description lists some difficulties with existing microlens/microimage security. One problem is the difficulty in accurate registration between microlens and microimages (page 2 lines 10 to 11). To overcome this problem, the prior art uses lasers fired through a microlens array to write the microimages onto the recording layer below (page 2 lines 11 to 14), however this is a costly method of production (page 2 lines 14 to 16).
The description of the opposed specification describes the object of the invention at page 2 lines 17 to 18 as follows:
“Now the object of the invention is to provide an improved multilayer body and a process for the production thereof.”
I consider that problem faced by the hypothetical person skilled in the art was a microlens security device that did not suffer from the problems such as difficulty in precise registration between microlenses and microimages and less costly than laser writing the microimages.
Ascertained, understood and regarded as relevant
As the art of security documents is a competitive and well documented in patents, research papers, conference papers, and textbooks, I consider it reasonable that a person skilled in the art would review all these relevant source of information. Mr Hardwick, whose skills and knowledge is representative of a person skilled in the art, states that he reviewed such aforementioned documents.
D1 - WO 2007/076952
D1 is a security document comprising a multilayer body that uses cylindrical lenses. It is clearly a highly relevant document, and thus could be ascertained by a person skilled in the art. D1 is in German which would form some impediment to the document being understood, however this could easily be overcome by a machine translation available from various online tools. It would clearly be regarded as relevant.
D10 – US2006/0003295
Document D10 US2006/0003295 relates to a system for authenticating security documents. The main embodiment disclosed in D10 is the use of line gratings to reveal images, however it also discloses using cylindrical microlenses to reveal images and thus could be reasonably be expected to have been ascertained by the person skilled in the art. D10 is written in clear English and would thus be understood and regarded as relevant.
D5 – “Moiré methods for the protection of documents and products: A short survey”
D5 is directed generally to security documents and in one embodiment discloses a multilayer body and uses microlenses. I consider that D5 could have been ascertained by the person skilled in the art. D5 is written in clear English and would thus be understood and regarded as relevant.
Obviousness
D1 - WO 2007/076952
D1 discloses static moiré magnification, but does not disclose an animated expansion or reduction effect or rotation effect.
There is no indication in D1 as to how (or motivation as to why) a person skilled in the art would achieve such an effect. Consequently, claim 1 is inventive in light of D1.
D10 – US 2006/0003295
D10 discloses all the features of claim 1 except the lens array and microimage array being fixed relative to one another.
The Opponent argued that fixing the lens array with respect to the microimages would be obvious to a person skilled in the art. The Opponent argued that it was common general knowledge for these to be in fixed relationship.
The Applicant noted that a non-fixed relationship between the two layers in moiré magnifiers was also a common general knowledge. The applicant noted D8, WO 94/27254, and an embodiment shown in Figure 6 and accompanying description where the first and second layers are in a separate and movable relationship to each other.

100. Having the microimage and microlens array as separate devices is particularly suited when the moiré effect is intended as a covert security feature. On the other hand, having the microlens and microimages together is suited when the moiré effect is intended to be overt.
101. The invention disclosed in D10 is to an overt security feature with embodiments disclosing the revealing layer to be provided together with (though separate from) the microimage layer (figures 30A to 36 all show the two layers provided together).
102. Having the revealing layer and microimage layer as separate layers is somewhat inconvenient as it requires physically aligning and then causing uniform movement of one layer relative to the other. Although having separate layers is necessary for line grating moiré security devices, it is not necessary for lens array moiré security devices.
103. Given the disadvantage of having separate layers (requiring physically aligning and then moving the layers) and the overt nature of the security feature in D10, I find that a person skilled in the art would be motivated to vary the disclosure of D10 to make the two layers permanently fixed together. Consequently, claim 1 lacks an inventive step in light of D10 and common general knowledge.
D10 and D5 combined
104. The Opponent argued that the information in disclosures of D10 and D5 was of the type that a person skilled in the art could have been reasonably expected to have combined pursuant to s 7(3)(b).
105. I have established that D5 and D10 would both have been ascertained by the PSA. There are three elements that suggest a connection between D5 and D10. Firstly, D5 and D10 both have specific reference to use cylindrical arrays to display the 1D animated moiré effect. Secondly, D5 and D10 are both by the same inventors: Hersch and Chosson. Thirdly, D5 mentions D10 in the References section.
106. Given the similarity of subject matter disclosed in D5 and D10 and the linkage between the documents (specifically, the common inventors and the reference from D5 to D10), I am satisfied that a person skilled in the art could have been reasonably expected to combine the information disclosed in those documents. Indeed, if a person skilled in the art could not have reasonably expected to combine this information, it is difficult to envisage the type of documents that could be combined under section 7(3)(b).
107. Overall, I consider that the person skilled in the art could have reasonably have been expected to combine the information disclosed in D5 and D10 as per section 7(3)(b).
108. D5 relevantly states (with my emphasis in bold):
“In addition, in each of these moiré-based methods, it is also possible to use as a revealer a microlens array with the appropriate frequency (1D or 2D, depending on the case) instead of the simple opaque film with transparent openings (1D slits or 2D pinholes, respectively). The main advantage of microlenses is that they allow more light to pass through the revealer, and hence they can be used in more difficult light conditions, both on transparent support, where the moiré is observed by transmission, and on opaque support, where the moiré is observed by reflection. But microlenses also offer the possibility of using a revealing layer that is fixed onto the basic layer, where the dynamics of the moiré effects are observed by means of a parallax effect that occurs when tilting the object or when one moves in front of it (rather than by moving the revealer on top of the document, as in the original methods described so far).”

109. This is a clear instruction that the microlens layer is fixed onto the microimage layer. By fixing the microlens layer onto the microimage layer in D10, this results in the invention defined in claim 1. Consequently, claim 1 lacks an inventive step in light of the combination of the information in D5 and D10.
Dependent claims
Claim 2
110. Claim 2 has three parameters separated by the term “and/or”. Each of these parameters has a preferable parameter range. In determining the validity of the claim, the broadest scope of the claim is considered. Thus only one of the claimed parameters needs to be considered for the purposes of inventive step analysis. The broadest scope of claim 2 only requires that the microlens has a width of less than 400µm. D10 discloses a microlens width of 333µm, thus this feature is disclosed. Claim 2 lacks an inventive step in light of D10.
Claim 3
111. Claim 3 is directed to a 1 dimensional grid. I understand this to mean that the microlenses are a parallel array of straight cylindrical lenses, thus differentiating it from the concentric toroidal lenses. However, as I have already determined that claim 1 is specific to a parallel array of straight cylindrical lenses, thus this feature has already been established as disclosed. Claim 3 lacks an inventive step in light of D10.
Claim 4
112. Claim 4 has three features separated by the term “or”. The broadest scope of the claim only requires any one of these features to be disclosed. One of the features is that the grid spacing of the microlens grid is constant. D10 clearly discloses constant microlens spacing, thus this feature is disclosed. Claim 4 lacks an inventive step in light of D10.
Claim 5
113. Claim 5 requires a spacing between successive microlenses of between 0 μm and 20% of the structure depth of the microlenses. This spacing is known as a “landing” (see paragraphs 19 and 20 of the Second Hardwick Declaration). D10 is silent as to the spacing between microlenses.
114. Bruce Hardwick states in his second declaration at paragraph 20:
“The claim appears to specify that the landing spacing is up to 20% of the thickness of the microlenses. This appears to be an arbitrary choice of maximum landing size.”

115. There does not appear to be anything unusual about the range of spacing claimed, nor a surprising result from such a range of spacing. I consider that a person skilled in the art would, as a matter of routine, produce the disclosed invention within this range of dimensions and consequently claim 5 lacks an inventive step in light of D10.
Claim 6
116. Claim 6 contains a typographical error “… and a length of more than 2µm…” which should read “… and a length of more than 2mm…”, as acknowledged by the Applicant in the hearing.
117. Claim 6 merely recites the same dimensional requirements on the microimages as that already provided for the microlenses in claim 1. The requirement in the claim that “… said length being determined in its orientation by the longitudinal axis” does not appear to add any limitation to claim 1, as length is by definition measured in relation to the longitudinal axis. Claim 6 lacks an inventive step in light of D10.
Claim 7
118. Claim 1 requires “…microimages distorted along a transverse axis with respect to a longitudinal axis…”. Claim 7 requires that the longitudinal axis of distortion is oriented parallel to the coordinate axis X1 which does not appear to add any real limitation beyond what is already defined in claim 1. The microimages are distorted (compressed) to compensate for the distortion (stretch) that the microlenses provide. Claim 7 lacks an inventive step in light of D10.
Claim 8
119. Claim 8 requires that the distortion is a compression of at least five times the transverse dimension. D10 is silent to the magnification of the microlens. D1 discloses at page 56 lines 14 to 20 that the microlenses magnify by a factor of 100x. I consider that a magnification of at least 5x and thus a compression of microimages by the same factor is typical of cylindrical microlens arrays and would be a matter of routine to a person skilled in the art. Consequently, I consider that the additional features defined in claim 8 to lack an inventive step in light of D10 and common general knowledge.
Claim 9
120. Claim 9 requires a 2D microimage grid. This can be thought of as a grid with more than one “microimage”, for example each microimage constitutes the letter of a word. In D10, the example of letters EPFL is provided in Figure 3, which thus discloses the additional feature defined in claim 9. Claim 9 lacks an inventive step in light of D10.
Claim 10, 11
121. Claims 10-11 relate to having multiple micro-images located under the microlens grid, where the micro-images have variations in properties (such as offset or spacing). These concepts are taught in D10 at least at paragraph [0120]. Claims 10 and 11 lack an inventive step in light of D10.
Claim 12
122. The additional features defined in claim 12 are disclosed in D10 at least at [0120] and Figure 14. Claim 12 lacks an inventive step in light of D10.
Claim 13
123. Claim 13 in essence requires two subregions which vary according to one or more parameters, selected from: phase displacement; angle; and/or focal length. D10 discloses different angles (see Figure 28B and the description at paragraph [0158]). Claim 13 lacks an inventive step in light of D10.
Claim 14
124. This claim requires that either the microimage grid or microlens grid has a circular or looped line-shape coordinate axes. The embodiment in figure 10 shows different regions with different angular orientations with respect to the horizontal lens array. Collectively, these regions form a polygon which is a looped line-shaped coordinate axis. D10 discloses in figure 22A microimages with different angular orientations with respect to the horizontal line grating (or lens array) Figure 22B. Collectively, these regions form a polygon which is a looped line-shaped coordinate axis. Claim 14 lacks an inventive step in light of D10.
Claim 15
125. Claim 15 introduces the requirement that the microimage layer (second layer) has a diffractive device. This is taught in D10 at paragraph [0234], and therefore the additional features defined in claim 15 are disclosed. Claim 15 lacks an inventive step in light of D10.
Claim 16, 17
126. D10 does not disclose using microscopic relief structures to form the microimages. Dr Hardwick states at paragraph 42 of his second declaration:
“At the priority date, creating microimages as structures which contrast with the background through one being coloured and the other being transparent was well known, for example as disclosed in WO 2005/106601 (Exhibit BAH-13).”

127. In the presence of this supporting evidence and in the absence of controverting evidence, I am satisfied that forming microimages from microscopic relief structures was well known and thus common general knowledge at the priority date.
128. Although most of the description in D10 is directed to a simple printing techniques, D10 notes at paragraph 234 that the microimages could be made of diffractive devices such as holograms. I consider that a person skilled in the art would, as a matter of routine, modify D10 and use microscopic relief structures to form the microimages. Claims 16 and 17 lack an inventive step in light of D10.
Claim 18
129. This claim is directed to an embodiment of the invention formed by laminating and heat embossing the microlens array.
130. Dr Hardwick states at paragraph 43 of his second declaration:
“Claim 19 [which, after the amendments were made, corresponds to claim 18] is simply a well known at the priority date method for forming a lenticular security device, utilising multiple layers including a transparent spacer layer. Forming microlenses by pressing a plate with the negative structure onto the first layer is simply the well known, at the priority date, process of embossing. Furthermore, lamination of multiple layers was well known at the priority date.”

131. Mr Schell states at paragraph 2.2.4 of his first declaration:
“ID cards are layered structures; first stacked and then laminated under heat and pressure. The metal laminating plates can be shaped in the form of a lens array, either spherical and/or cylindrical and these structures are then embossed in the top surface of the ID card.”

132. The experts both state that laminating and heat embossing microlenses is common general knowledge. Consequently I consider that forming the moiré effect product using a lamination and heat embossing would be considered obvious to a person skilled in the art. Claim 18 lacks an inventive step in light of D10 and common general knowledge.
Full Description
133. The Opponent submitted in their Statement of Grounds and Particulars that the specification did not fully describe the invention.
134. Section 40(2)(a) of the Patents Act requires that the invention be described fully, with the appropriate test set out in the High Court decision of Kimberly-Clark Australia Pty Ltd v Arico Trading International Pty Ltd (2001) HCA 8; 207 CLR 1; 177 ALR 460; 75 ALJR 518 at [25]:
“Section 25(2)(h) of the Patents and Designs Act 1907 (UK) ("the 1907 Act"), as amended by s 3 of the Patents and Designs Act 1932 (UK), made it a ground of revocation that the complete specification did not "sufficiently and fairly describe and ascertain the nature of the invention and the manner in which the invention [was] to be performed". The resemblance to s 40(2)(a) of the 1990 Act will be apparent. Speaking of the 1907 Act in No-Fume Ltd v Frank Pitchford & Co Ltd[43], Romer LJ repeated par (h) of s 25(2) and continued:

"[I]n other words, [it is essential] that the patentee should disclose his invention sufficiently to enable those who are skilled in the relevant art to utilise the invention after the patentee's monopoly has come to an end. Such disclosure is, indeed, the consideration that the patentee gives for the grant to him of a monopoly during the period that the patent would run. ...

It is not necessary that he should describe in his specification the manner in which the invention is to be performed, with that wealth of detail with which the specification of the manufacturer of something is usually put before the workman who is engaged to manufacture it."

The question is, will the disclosure enable the addressee of the specification to produce something within each claim without new inventions or additions or prolonged study of matters presenting initial difficulty?” (my emphasis)

135. The Opponent states in their submissions:
6.1. The disclosure in relation to Figures 8 to 10 fails to fully describe how to implement the claimed invention. Specifically, the description of the embodiments merely states that the microimages are created by the rotation and/or increase or reduction in size of the basic image and subsequent distortion in accordance with the transformation function (see, for example, page 21 lines 21-24).
6.2. The geometric transformation is described as having an effect on the appearance of the magnified image, but there is no disclosure of how the geometric transformation affects the magnified image. In essence, the person skilled in the art is told that they can perform such geometric transformations, and that these will provide a particular effect, but the PSA is not taught the actual relationship between the geometric function and the visual effect.
6.3. Thus, in order to utilise the invention, the PSA will have to undertake research constitute prolonged study of matters presenting initial difficulty. It is not intuitive as to what geometric transformations should be undertaken to produce particular visual effects.
6.4. Thus, at least claim 1 is not fully described and the Application is therefore invalid.

136. Figure 10 and accompanying description at page 22 line 14 to page 23 line 5, shows a microimage layer with basic images that have radial outward motion and simultaneously changes (expands) in size.

137. This effect is achieved by varying the microimage parameters as follows:

The grid spacings of the microimages increases in the horizontal axis in dependence on the spacing from the centre (page 22 lines 23 to 25)

The horizontal size of the microimages is increased in dependence on the spacing relative to the centre (page 22 lines 27 to 28)

The vertical size of the microimage is ‘compressively upset’ in relation to a longitudinal axis by an upsetting factor which varies in the radial direction (page 22 lines 29 to 32).

The microimages appear in Figure 10 (though not mentioned in the description in relation to this embodiment) to be oriented at an angle with respect to the lens array; with a steeper angle closer to the centre and shallow angle further from the centre.

138. The embodiment of the invention captured in the claims is given at page 22 line 14 to page 23 line 5 and in accompanying figure 10. This is a disclosure of a basic images (the repeated word ‘OK’) that moves radially outward and simultaneously changes (expands) in size.
139. Given the microimage layer in figure 10, an appropriately sized and oriented cylindrical microlens array would then be needed to be overlayed to thus reveal the animated effect. The microlens width is constrained to be within 10% of the spacing between adjacent microimages. The orientation of the microlenses is constrained to be within ±5° of the microimages. A microlens array within these constraints placed over the top of the microimage array shown in figure 10 will produce an animated expansion and rotation moiré effect. I am satisfied that there is a full description of the claimed invention.
Fair basis
140. The Opponent states in their submissions at paragraph 7.1:
“Reading the specification as a whole, it is clear that the axis X1 and Y1, (as well as X2 and Y2), are required to be linearly independent (for example, see page 2 line 19 to page 3 line 7). Claims 1 to 19, however, merely require that the axes be “different in relation thereto”. Two axes can be different but not linearly independent, and therefore claims 1 to 19 travel beyond the subject matter of the invention described in the specification.”

141. The only case in which two vectors can be different but not linearly independent is if they have the same orientation but different length. Since an axis only defines an orientation and not a length, the terms ‘different’ and ‘linearly independent’ are synonymous in this context.
142. The Opponent argues in their submissions at paragraph 7.3:
“As amended, claim 1 is inconsistent with the invention described. Specifically, reference is made to page 2, line 17 to page 3, line 8, and also to the remainder of the description generally. The invention described is for a broad concept of a cylindrical lens based moiré magnifier, not the particular embodiments of Figures 8-10. Therefore, at least claim 1 is not fairly based and is therefore invalid.”

143. The Opponent’s argument is essentially that the description is broader than the claims. However, a lack of fair basis is typically only found in the opposite case – where the claims are broader than the description. I consider that the claim does not travel beyond the description and thus the claim is fairly based.
Clarity
144. The Opponent argues:
“At least claims 2, 8, and 12 are unclear due to the use of the words “preferably” and “especially”. The claims are unclear because the scope of the claims is uncertain; are the preferred features required integers or not?”

145. The claims are given their broadest reasonable interpretation. The use of words such as “preferably” and “especially” provides no limitation on the scope of the claim. This aspect of the claims is clear.
Conclusion
146. Claims 1-18 lack an inventive step in light of the information disclosed in D10 when read in light of common general knowledge. Claims 1-18 also lack an inventive step in light of the information contained in D10 and D5 when combined.
147. Since all claims have been found to lack an inventive step it is not clear if any amendments could be made to overcome the lack of inventive step. Nevertheless, I will allow the applicant 60 days from the date of this decision in which to propose suitable amendments to overcome the above findings.
Costs
148. Costs typically follow the event. One atypical aspect of this opposition was the information provided by both parties after the hearing that has been relied upon under Regulation 5.23.
149. The Regulation 5.23 information was instigated on the basis that the Applicant disputed the publication date of D5. I have concluded that the Applicant’s challenge to the publication date is unsuccessful. Consequently a variation in costs in the Applicant’s favour is not appropriate.
150. The Opponent has successfully opposed the grant of the patent. Costs are awarded in accordance with Schedule 8 against the Applicant, OVD Kinegram AG.
Xavier Gisz
Delegate of the Commissioner of Patents