Jones Tulloch Pty Ltd v Loam Bio Pty Ltd
[2024] APO 51
•17 December 2024
IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Jones Tulloch Pty Ltd v Loam Bio Pty Ltd [2024] APO 51
Patent Application: 2023202250
Title:Methods for carbon capture and increasing yield of plants
Patent Applicant: Loam Bio Pty Ltd
Opponent:Jones Tulloch Pty Ltd
Delegate:Felix White
Decision Date: 17 December 2024
Hearing Date: 29 November 2024
Catchwords: PATENTS – extensions of time to file evidence in support – access to microorganisms deposited under Budapest Treaty required for evidence in support – whether Opponent has made reasonable efforts to comply with filing requirements – whether Opponent has acted promptly and diligently – standard for a reasonable plan does not require perfection – extension of time is not separable for different components of evidence in support – reasonableness of decision to obtain evidence is assessed a priori – extensions of time allowed – costs awarded
Representation: Counsel for the applicant: Gilbert Tsang
Patent Attorney for the applicant: Southern Cross Intellectual Property
Counsel for the opponent: Craig Smith SC
IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Patent Application: 2023202250
Title:Methods for carbon capture and increasing yield of plants
Patent Applicant: Loam Bio Pty Ltd
Date of Decision: 17 December 2024
DECISION
I grant an extension of time for Jones Tulloch Pty Ltd to file its evidence in support until 23 November 2024. Jones Tulloch’s evidence in support is therefore filed in time and is complete. Loam Bio Pty Ltd’s evidence in answer is due three months from the date of this decision.
I award costs according to Schedule 8 against Loam Bio Pty Ltd.
REASONS
This decision relates to Australian Patent Application No. 2023202250 (“the Application”) in the name of Loam Bio Pty Ltd (“Loam”/“the Applicant”) and the s59 Opposition filed thereto by Jones Tulloch Pty Ltd (“Jones Tulloch”/“the Opponent”).
In particular this decision addresses whether Jones Tulloch’s requests under Regulation 5.9 to extend the period for filing evidence in support should be granted.
In their submissions for the hearing, both parties provided timelines of the events leading to the present hearing. There does not appear to be any controversy relating to the timelines, but I will summarise the relevant events below, starting with the timelines of events on record with IP Australia and then moving to events mentioned in the evidence filed in support of the extension of time.
Acceptance of the Application was advertised on 24 August 2023. Relevantly to this proceeding, the accepted claims include 15 claims of which two are independent. Both of the independent claims are methods which involve inoculation of soil with one of two fungal strains of Clonostachys rosea, as deposited under the provisions of the Budapest Treaty; one with the ATCC in the USA and the other with the NMI in Australia (hereinafter the “Loam strains”).
Jones Tulloch timely filed a Notice of Opposition on 24 November 2023, and duly filed their Statement of Grounds and Particulars (“SG&P”) on 23 February 2024. The grounds of opposition included lack of novelty and lack of inventive step. The particulars asserted that the invention lacked novelty[1] and inventive step[2] in view of seven documents (D1-D7), and included statements to the effect that the ITS2[3] sequences of the Loam strains disclosed in Table 2 of the Application were identical to those of other C. rosea fungal strains disclosed in D1-D7.
[1] SG&P at 2.3.1-2
[2] SG&P at 2.4.5
[3] One of the “internally transcribed spacer” regions in the fungal ribosomal RNA operon which have been proposed since 2012 as “barcodes” for fungi. ITS2 sits between the 5.8S gene and the 28S gene. Source: Combining the 5.8S and ITS2 to improve classification of fungi - Heeger - 2019 - Methods in Ecology and Evolution - Wiley Online Library
On 27 March 2024, Jones Tulloch requested a direction under Reg 5.22 from the Commissioner that Loam should release the full genomic sequences of the Loam strains. The request cited grounds of efficiency, cost and public interest.
A delegate responded on 2 April 2024, indicating that, in their opinion, such a direction was neither necessary nor appropriate. The delegate’s considerations were, firstly, that the particulars already set out the identity of the fungal strains at the ITS2 level; secondly, that the provisions of s210(1)(c) would be more appropriate and that section has stringent criteria; and, thirdly, that the Regulations already provide for the ability to access samples deposited under the Budapest Treaty (even if time consuming).
The delegate concluded:
In the event that obtaining a sample and sequencing the genomes concerned takes more than the evidentiary period concerned, the Opponent may request an extension of time to file evidence. The Opponent, would, of course need to demonstrate, pursuant to Regulation 5.9(2)(a) that it was unable to file its evidence in time, despite making all reasonable efforts and acting promptly and diligently at all times to ensure the evidence was filed on time. It is likely that the Opponent would need to establish, at the very least, that it was reasonable, in the context of evidence gathering, to obtain samples and undertake genomic sequencing despite this likely extending beyond the three months allowed to file evidence in support.
On 24 April 2024, Jones Tulloch filed requests for the Commissioner’s certification to release the deposited samples of the Loam strains. The required fees were paid on 9 May 2024.
10.On 22 May 2024, Jones Tulloch filed a request under Reg 5.9 for an extension of the period to file evidence in support for three months (until 23 August 2024), accompanied by a first declaration from Paul Jones (“Jones-1”) and an accompanying exhibit.
11.Jones Tulloch’s dual proceedings for release of the deposit and seeking an extension of the period for evidence in support thence proceeded in parallel.
12.On 23 May 2024 a delegate indicated that the initial certification requests were deficient in that they omitted the required “BP12” form. These forms were duly submitted by Jones Tulloch on 29 May 2024.
13.On 31 May 2024 a delegate indicated an intention to allow the extension of the period to file evidence in support.
14.On 19 June 2024 a Loam was notified of the certification requests, as required by Reg 3.25(3)(a), and invited to make submissions within a one month period.
15.On 21 June 2024 Loam requested to be heard on the matter of the extension of time for evidence in support, and requested an expeditious hearing. On 30 July 2024 Jones Tulloch also requested to be heard and requested a stay in opposition proceedings until the process for release of microorganism deposits had concluded. On 2 August 2024 a delegate declined the request for a stay but indicated that further extensions may be granted retrospectively.
16.On 8 August 2024, the Deputy Commissioner issued certification for the release of the deposited Loam strains.
17.On 23 August 2024, Jones Tulloch filed part of its evidence in support for the opposition, and also filed a further request for extension under Reg 5.9 until 23 November 2024 along with a second declaration from Paul Jones (“Jones-2”). A third declaration (“Jones-3”) was filed on 11 November 2024.
18.The remainder of Jones Tulloch’s evidence in support was filed on 22 November 2024.
19.Formalities for setting the matter of the Reg 5.9 requests to hearing had commenced in late August 2024 and the hearing was held by videoconference on 29 November 2024. Loam did not file any evidence for this hearing. Mr Jones’s evidence is therefore uncontradicted.
Mr Jones’s evidence
20.Mr Jones’s declarations shine some light on Jones Tulloch’s actions that were not visible to the Commissioner.
21.Mr Jones stated that although the prior art strains and the Loam strains appeared identical on the ITS2 level, his understanding was that this may not have been sufficient to prove identity at the strain level, and that “in order to confidently and empirically determine whether the Microorganisms are the same as those of the prior art, full genomic sequence data” was required.[4] He stated that this understanding was later confirmed by one of his expert witnesses.
[4] Jones-1 at 16.
22.Mr Jones first attempted to gain access to the genomic sequence data of the Loam strains by emailing Tegan Nock[5] on 22 December 2023 and again on 10 January 2024 (after filing the Notice of Opposition but before filing the SG&P). He then tried a different approach of emailing Loam’s Australian patent attorney on 27 February 2024 (after filing the SG&P). According to Mr Jones, no reply was received from either party.[6]
[5] Chief Operating Officer at Loam
[6] Jones-1 at 18-19
23.Mr Jones then (as is of record) attempted to gain access to this data by seeking a direction from the Commissioner. After this was declined, he began discussion with his client[7] between 3 and 14 April 2024 regarding the microorganism release process. This included contacting a sequencing facility (the AGRF) between 5 and 17 April 2024, and contacting IP Australia between 17 and 23 April 2024, culminating in the filing of the request for certification.[8]
[7] Noting that Mr Jones’s firm is itself the Opponent and the identity of this “client” is unknown; it is an open secret that legal firms are used as “straw men” in patent oppositions. Nevertheless TRED (citation infra) at paragraph 29 makes it clear that there is no distinction between the actions of an agent and its instructor in this context, so it would seem pointless to put any weight on whether Jones Tulloch is a principal or an agent.
[8] Jones-1 at 23-26
24.Mr Jones also provided information relating to selection of expert witnesses. A shortlist had been made by 31 January 2024 and a first expert was contacted on 9 February 2024 (before the filing of the SG&P and before the start of the evidentiary period). A second expert was contacted on 25 March 2024. According to Mr Jones, both experts had prepared declarations by the date of his first declaration (which corresponded to the end of the normal evidentiary period).[9]
[9] Jones-1 at 29-31
25.Mr Jones’s subsequent declarations provided detail on the progress of the deposit release and subsequent analysis of the samples. This is rather technical in nature and not particularly relevant to the present proceeding, but it is noteworthy that Mr Jones predicted a period of 10 weeks for sample obtention and analysis in his second declaration[10] and this this was subsequently shown to have been roughly correct.[11]
[10] Jones-2 at 8
[11] Jones-3 at 16
Regulatory basis
26.Regulation 5.9 provides a mechanism for extending the periods available to file evidence in patent oppositions. The principal authority on this regulation is the decision in TRED Design Pty Ltd v Julie-Anne McCarthy and Bradley McCarthy [2013] APO 5 (“TRED”) which was cited by both parties and to which I will refer when appropriate. At the outset, it is worth quoting the regulation here in full:
5.9 Extension of time for filing evidence
(1) The Commissioner may extend an evidentiary period mentioned in regulation 5.8:(a) if requested in writing by a party; or
(b) on the Commissioner’s own initiative.
(2) The Commissioner may extend the period only if the Commissioner is satisfied that:
(a) the party who intended to file evidence in the period:
(i) has made all reasonable efforts to comply with all relevant filing requirements under this Chapter; and
(ii) despite acting promptly and diligently at all times to ensure the appropriate evidence is filed within the period, is unable to do so; or
(b) there are exceptional circumstances that warrant the extension.
(3) The Commissioner must determine the length of the extended period having regard to what is reasonable in the circumstances.
(4) The Commissioner must notify the parties of the extension as soon as practicable.
(5) In this regulation:
exceptional circumstances includes the following:(a) a circumstance beyond the control of a party that prevents the party from complying with a filing requirement under this Chapter;
(b) an error or omission by the Commissioner that prevents a party from complying with a filing requirement under this Chapter;
(c) an order of a court, or a direction by the Commissioner, that the opposition be stayed pending the completion of a related proceeding or action under the Act.
27.As per subregulation (1) this is a discretionary power. However, it can only be exercised if one of the criteria in subregulation (2) is met.
28.The first criterion of subregulation (2) has been primarily relied upon by Jones Tulloch. It has two parts – it requires that the requesting party must have not only made reasonable efforts to comply with all opposition filing requirements, but also have acted promptly and diligently in obtaining evidence. I note that the word “ensure” in the regulation is somewhat ironic – its normal meaning is to “make something certain” but this regulation only exists to provide a remedy in the situation where that thing has not, in fact, occurred. I therefore take this provision to mean that, despite prompt and diligent actions, the party was unable to file appropriate evidence during the regulated period.
29.These requirements for reasonableness, promptness and diligence were introduced in the 2013 Raising the Bar amendments to the Patents Regulations 1991[12] in order to address the then problem of protracted opposition proceedings due to the Commissioner’s narrowed discretion to disallow extensions under the previous regulatory scheme. In particular, the Explanatory Statement pointed to situations where extensions of time could no longer be granted: delays due to lack of promptness and diligence, difficulties in obtaining expert evidence that could have been anticipated and acted on¸ or attempts to settle proceedings.[13]
[12] Intellectual Property Legislation Amendment (Raising the Bar) Regulation 2013 (No. 1)
[13] Quoted in TRED at 17, my emphasis.
30.The requirement for reasonableness also affects the Commissioner’s ability to determine the duration of extension in subregulation (3).
31.The standards for reasonableness, promptness and diligence are ultimately ones for the Commissioner’s delegate to determine according to their satisfaction.[14] However some principles for interpreting these include:
[14] TRED at 74
·Promptness and diligence can often be equated with reasonableness.[15]
[15] Sanofi-Aventis Healthcare Pty Limited v Reckitt Benckiser Healthcare (UK) Limited [2015] APO 32 at 16, with reference to Innovia Security Pty Ltd v Visual Physics LLC [2014] APO 15
·Promptness and diligence does not require a standard of perfection.[16]
[16] Mineral Technologies Pty Ltd v Orekinetics Investments Pty Ltd [2014] APO 63 at 33
·What is required is a reasonable plan executed well, with no significant unexplained delays.[17]
[17] Patents Manual of Practice and Procedure at 7.11.2.2.1 - seen in application in, for example, SHL Medical AG - Switzerland v Sanofi-Aventis Deutschland GmbH [2023] APO 12 at 21
Exceptional circumstances
32.I note that although Jones Tulloch did not resile from the possibility that criterion (b) – exceptional circumstances – might be met, they did not particularly press that at the hearing. I am not satisfied that exceptional circumstances in the meaning of the Regulations have been established here. Exceptional circumstances have been said to be those that are not only outside the control of the party, but also outside the normal evidentiary process.[18] Therefore any delays that relate to the gathering of evidence per se cannot, according to my understanding, be exceptional circumstances. For example, in Aquatron Robotic Technology LTD v Zodiac Pool Care Europe [2016] APO 88 (“Aquatron”), the delegate found that delays relating to a Notice to Produce an article required for evidence were not exceptional circumstances,[19] although they were taken into account when establishing promptness and diligence.[20]
[18] TRED at 64
[19] Aquatron at 56
[20] Aquatron at 57
Onus
33.As per the Explanatory Statement, Jones Tulloch bears the onus.
34.Jones Tulloch’s primary case is that it required an extension of time to facilitate the release and analysis of the Loam strains to determine the sequence identity to the prior art strains at the whole genome level. This convinced the delegate (as evidenced by the letter of 31 May 2024) that, prima facie, the first extension should be granted. I will proceed on the basis that Jones Tulloch has at least established a prima facie case.
35.With regard to the second extension, I consider that the narrative of events in Jones-2 and Jones-3 is consistent with promptness and diligence, particularly bearing in mind that the deposit release certificates were only issued shortly before the second extension request and that the actual timing of the deposit analysis in Jones-3 closely corresponds to the predicted timing in Jones-2. So, I am satisfied that Jones Tulloch has also prima facie established a case for the second extension.
36.I will now turn to Loam’s various criticisms.
Loam’s submissions
37.Loam’s written submissions (“LWS”) contained three arguments against the first extension and four against the second extension. The first three arguments against the second extension roughly correspond to those against the first extension, and the fourth argument is similar enough to the third that I will consider them together. Loam raised an additional argument during the hearing which was based on the content of Jones Tulloch’s evidence in support, which had been filed on 22 November 2024, one day after LWS were received.
Pertinence of the genomic sequence data to the SG&P
38.Loam’s first criticism, set out at paragraphs 25-26 and 37 of LWS and elaborated on in detail during the hearing, is that the full genomic sequence data is not “appropriate” in the meaning of reg 5.9(2)(a)(ii) because it is inconsistent with the particulars in the SG&P.
Loam put much weight on the statements in the SG&P that the prior art strains were identical to the Loam strains at the ITS2 level. Loam submitted that the full genomic sequence data was not necessary to make out the grounds of invalidity in the SG&P and that Jones Tulloch had never explained why the full genomic sequence data was necessary.39.I fail to find this convincing on a number of levels. In my view, it is based on a very closed reading of the SG&P, a representative section of which I have reproduced here:
2.3.1. The alleged invention, so far as claimed in any claim, when compared with the prior art base as it existed before the priority date of any claim, is not novel in light of the following:
(a) Publication, use and sales of the GlioMix product and its PGP activity (GlioMix Product) (D1)
The GlioMix product was sold initially in Finland in 1995 by Verdera. Since, 1995, details of the GlioMix product were published in advertising materials, including printed brochures (GlioMix Product). GlioMix trial results, were first published on the Verdera website around year 2003.
The GlioMix product contains the mycelium and spores of the Clonostachys fungi rosea strain J1446. This strain is identical to Clonostachys rosea DMTR-CTR-US-173 (ATCC Accession No. PTA-127299) or Clonostachys rosea DMTR-CTR-1081 (NMI Accession No. V22/003495), at the ITS2 level described in, e.g., Table 2 of the opposed application
40.I am more minded to read this passage as setting out the ground (lack of novelty), the particular (lack of novelty in view of D1), and a summary of what Jones Tulloch knew about D1 at the time. Although the role of the SG&P is to define the issues of the opposition and the opponent’s case is confined to the issues raised therein,[21] the particulars must be substantiated by evidence,[22] and it is the role of the evidentiary period to allow the opponent to adduce evidence that is useful to establish the particularised case.
[21] Patents manual of practice and procedure at 7.4.2
[22] ibid
41.Mr Jones’s evidence seems to imply that, even prior to filing the SG&P, he knew that genomic sequence data was likely to be required to prove identity at the strain level. It is perhaps less than ideal that this admission was not found in the SG&P, but, then again, it was contingent on evidence to which Jones Tulloch did not yet have access and was the reason for seeking the extension in the first place.
42.Counter to the preliminary opinion of the delegate who refused to issue the notice to produce with the assumption that ITS2 level identity could substantiate the lack of novelty[23], I am convinced by Mr Jones’s evidence that a full genomic comparison is likely to be necessary to properly determine the grounds of lack of novelty and lack of inventive step.
[23] First point of the delegate’s letter of 2 April 2024
43.I am therefore not convinced that the reference to identity at the ITS2 level in the SG&P renders the full genomic sequence “inappropriate” or Jones Tulloch’s behaviour “unreasonable”.
The staged manner in which the genomic sequence data was sought
44.Loam’s second criticism, set out at 27-28 and 38 of LWS, is that Jones Tulloch’s “step-wise” approach to getting access to the genomic sequence was not reasonable. Loam infers, not unreasonably, that by 22 December 2023 Jones Tulloch knew they would require the full genomic sequence of the Loam strains. However, they proceeded by stages and only contemplated accessing the Budapest deposit itself in April 2024. Loam draws particular attention to a 48-day gap between contacting Loam for the second time and contacting Loam’s attorney, and to a 19-day delay after it failed to hear back from Loam’s attorney before making a request for direction.
45.Loam further argues that this approach could not have been a “reasonable plan executed well” because it was not reasonable for Jones Tulloch to expect Loam to be compliant.
46.Nevertheless, I am content that Jones Tulloch’s approach to obtaining the full genomic sequence data was not unreasonable. Firstly, it is worth bearing in mind that the reasonableness inquiry should begin with the period in question,[24] which commenced on 23 February with the filing of the SG&P. From that period, the maximum delay that needs to be accounted for is from 23 February until the request for deposit certification was filed on 5 May. Admittedly this is more than 2/3 of the regular evidentiary period. However, set against that, Jones Tulloch had been pursuing regular actions during that time with the goal of obtaining the sequence data (i.e. contacting Loam’s attorney; awaiting a response; when certain that no response would be received seeking a direction to produce; when that was denied initiating arrangements to obtain the sequence by themselves). Furthermore, it is not the case that Jones Tulloch only started making enquiries during the evidentiary period; their earlier actions in contacting Loam directly point, in my view, to reasonableness, promptness and diligence rather than the reverse.
[24] TRED at 40
47.This situation, of a claim referring to a deposited strain, is quite unusual. The Opponent cannot make a case as to novelty or inventive step without access to the deposit, which is only accessible from parties beyond their direct control – either from the Applicant directly or through the potentially time-consuming deposit access process. It is therefore not unreasonable for Jones Tulloch to have attempted to access the data in a way that would have been inexpensive and quick had Loam been amenable. To have expected Jones Tulloch to have initiated the deposit release process straight away is a standard of perfection, which is not the one on which reasonableness is to be judged.
Timing of evidence unrelated to the genomic sequence data
48.The final argument in the LWS related to the timing of Jones Tulloch’s other evidence that was unrelated to the genomic sequence data. The written submissions pointed to the fact that no other evidence was filed by the original deadline. Loam also pointed to the delay between Jones Tulloch initially requesting the sequence data and retaining the expert (Professor Jensen) who would ultimately comment on the sequence data. Later, at the hearing, Loam’s counsel pointed to the part of Professor Jensen’s evidence in support that did not relate to the sequence data and asked if it was reasonable that the evidence not relating to the Loam strains had not been filed earlier.
49.I understand this line of argument to effectively be a “separability” argument. Loam is suggesting that, in order to satisfy the promptness and diligence requirements, Jones Tulloch needed to act promptly and diligently on each piece of evidence separately.
50.However, this is inconsistent with the language, and indeed the purpose, of the regulations. Reg 5.9 allows for an extension of the evidence period in toto, rather than merely extending the deadline for individual pieces of evidence. And the trigger for extending the evidence period is the inability to file “the appropriate evidence”. Hence the inability to file any piece of appropriate evidence, despite acting promptly and diligently to source that evidence, will engage this provision.
51.Thus, I am satisfied that it is irrelevant for the present extension, which is based on the premise that some appropriate evidence was unavoidably delayed, whether or not Jones Tulloch chose to reschedule the rest of their evidence gathering process to coincide with the delivery of the final piece of appropriate evidence.
52.It follows that, of course, Jones Tulloch risked having no evidence filed in time if the Reg 5.9 extension was disallowed, but that was a strategic consideration for Jones Tulloch, not evidence of lack of promptness and diligence.
53.Similar considerations apply to Loam’s concern as to lack of fulsomeness about the details of the release of the US ATCC deposit. As long as the criteria for extension are established for at least some appropriate evidence, I do not see why it is necessary to account for all of the evidence gathering process.
54.As an aside, the idea that each piece of evidence should be prepared and filed promptly regardless of the overall need for an extension would suggest a piecemeal evidence gathering process that would in fact unduly benefit the responding party, in that they would have more than the regulated period to respond to the piecemeal evidence.
Probative value of the genomic sequence data actually submitted
55.At the hearing, Loam raised a new argument which was based on perusal of Jones Tulloch’s evidence that had been submitted the previous week (but after the filing of LWS). Loam pointed to passages in the evidence that showed that the Loam strains were not, in fact, identical to prior art strains on the genomic sequence level, and submitted that, as such, the evidence was “unnecessary” to Jones Tulloch’s case for novelty and inventive step. The word “unnecessary” is used in TRED to illustrate a situation where a party’s action, although diligent, is not reasonable.[25] Loam therefore concluded that it had not been reasonable for Jones Tulloch to file the genomic sequence data and thus that the criteria of Reg 5.9 have not been satisfied.
[25] TRED at 28
56.I find this argument unsatisfying for two reasons. Firstly, even if it could be said that the differences at the genomic sequence level mean that Loam’s claims were novel (bearing in mind that this is a matter for the substantive hearing, not the current procedural stage) Jones Tulloch still has a case for lack of inventive step to which the evidence may be pertinent.
57.Secondly, Loam’s submission that evidence-gathering can be shown to be unreasonable if, in hindsight, it was shown to be unfruitful, seems to me to completely go against the intent of Reg 5.9, which is meant to provide an extension of the evidence period before the evidence has actually been filed. Indeed, this idea would make it impossible to rule on Reg 5.9 requests until after the evidence finally materialises, which is a rather unsatisfactory outcome for procedural promptness.
58.I rather think that a more sensible reading of the hypothetical in TRED – “an exception might be where a person was diligently preparing evidence that was unnecessary for the opposition”[26] – refers to evidence that could have been seen to be a priori unnecessary at the time it was being prepared. In contrast, the current situation refers to evidence whose precise probative value could not have been known until the conclusion of the evidence gathering process. And it would be unreasonable to preclude the opportunity to gather such evidence.
[26] Ibid.
Discretionary considerations
59.Having found that Jones Tulloch‘s actions were reasonable, prompt and diligent, I still need to consider whether it is appropriate to exercise the discretionary power to extend the time and, if so, determine the duration of the extension.
60.Based on the evidence above and in view of my findings as to promptness and diligence, I can see no reason not to exercise my discretion.
61.I do note Loam’s oral submission during the hearing that they have been inconvenienced by having to respond to allegedly unnecessary material. Of course, it is up to Loam as to how much weight they give to various pieces of evidence when preparing their evidence in answer.
62.Finally, I find the reasonable extension for the evidence period to be the time required to promptly and diligently obtain and analyse the Loam strains. This coincides with the six month extension requested by Jones Tulloch.
Conclusion
63.I therefore allow an extension of time to file evidence in support until 23 November 2024. Jones Tulloch’s evidence in support has therefore been filed in time and is now complete.
64.I note Loam’s willingness during the hearing to start the evidence in answer period from that date. Nevertheless Reg 5.8(2) provides that the evidence in answer period begins from the date the Commissioner notifies the applicant that the evidence in support is complete. As per the previous paragraph, the period for evidence in answer begins on the date of this decision.
Costs
65.Jones Tulloch submitted that costs should follow the event. There is no reason to depart from this approach. I therefore award costs according to Schedule 8 against Loam Bio Pty Ltd.
Felix White
Delegate of the Commissioner of Patents
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