Koppers Performance Chemicals New Zealand v Zelam Limited
[2018] APO 73
•29 October 2018
IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Koppers Performance Chemicals New Zealand v Zelam Limited [2018] APO 73
Patent Application: 2011203019
Title:Synergistic Fungicidal Compositions and Methods of Use
Patent Applicant: Zelam Limited
Opponent: Koppers Performance Chemicals New Zealand
Hearing Officer: Dr S.D. Barker – Deputy Commissioner of Patents
Decision Date: 29 October 2018
Hearing Date: 12 September 2018 in Melbourne
Catchwords: PATENTS – opposition to the grant of a patent – inventive step – there is no lack of inventive step in the light of the common general knowledge or any of the citations – the claims include the option of a kit of parts and are to be amended to exclude that option
Representation: Counsel for the applicant: Ben Fitzpatrick
Patent attorneys for the applicant: David Tadgell and David Longmuir of Phillips Ormonde Fitzpatrick
Counsel for the opponent: Christian Dimitriadis SC and Clare Cunliffe
Patent attorney for the opponent: Dr Andrew Baker of AJ Park
IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Patent Application: 2011203019
Title:Synergistic Fungicidal Compositions and Methods of Use
Patent Applicant: Zelam Limited
Date of Decision: 29 October 2018
DECISION
The claims include kits of parts. I allow the applicant two months to propose amendments to exclude this option.
Once the amendments have been made, the opposition will be unsuccessful.
I award costs according to Schedule 8 against Koppers Performance Chemicals New Zealand.
REASONS FOR DECISION
Patent application number 2011203019 (the application) was filed on 22 June 2011. The applicant is Zelam Limited (Zelam). The application claims priority from application NZ 586483 which was filed on 29 June 2010.
The application was examined and accepted by the Commissioner, and subsequently opposed under section 59 of the Patents Act 1990 (the Act) by Koppers Performance Chemicals New Zealand (Koppers). A hearing was held on 12 September 2018 in Melbourne to decide the opposition. Zelam was represented by Ben Fitzpatrick. Koppers was represented by Christian Dimitriadis SC and Clare Cunliffe.
The opposition
The request for examination was filed on 12 December 2014. As a consequence, substantive amendments of the Act brought about by the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 apply to the application. This includes the amendments to section 7, as well as section 60(3A).
An amendment to the statement of grounds and particulars was filed on 11 August 2017. The statement as amended identifies the following grounds of opposition: manner of manufacture, novelty, prior use, inventive step, utility, disclosure, clarity and support. At the hearing, the opposition was limited to the ground of inventive step.
Evidence
The parties relied upon evidence by various declarants. The evidence is summarised in this table:
Evidence Declarant Date Reference Exhibits In Support Jack Norton 6 October 2016 Norton 1 JN-1, JN-2 Jack Norton 7 October 2016 Norton 2 JN-3 to JN-5 Frank William Frazer 3 October 2016 Frazer 1 FWF-1 to FWF‑5 Jeanette Audrey Drysdale 7 October 2016 Drysdale 1 JAD-A to JAD‑H Stacey Vivienne Campbell 5 October 2016 Campbell SVC-1 to SVC‑3 In Answer Lawrence J Cookson 21 December 2016 Cookson LJC-1 to LJC‑13 Simon Dorries 20 December 2016 Dorries SD-1 Christopher Molloy 23 December 2016 Molloy CM-1 to CM‑4 Alan F. Preston 22 December 2016 Preston AFP-1 to AFP‑7 In Reply Jack Norton 3 March 2017 Norton 3 - Jeanette Audrey Drysdale 3 March 2017 Drysdale 2 JAD-I Frank William Frazer 3 March 2017 Frazer 2 -
Drysdale 1 exhibited documents that were filed as part of a corresponding opposition in New Zealand. Those documents are summarised in this table:
Declarant Date Reference Jeanette Audrey Drysdale 7 November 2012 Drysdale NZ 1 Jeanette Audrey Drysdale 12 November 2012 Drysdale NZ 2 Jeanette Audrey Drysdale 23 May 2014 Drysdale NZ 3
Frazer 1 exhibits a document that was filed as part of the corresponding opposition in New Zealand. That document is a declaration of Frank William Frazer dated 8 May 2014 (Frazer NZ).
The specification
The specification relates to fungicidal compositions for the preservation of wood products. A request to amend the specification was filed on 1 May 2017, and the amendment was allowed on 7 September 2017. It is the specification as amended that is the subject of the opposition.
The specification ends with 21 claims. Claim 1 and 18 are independent claims. The relevant claims are quoted later in this decision.
What is the invention as described
The principles of construction of specifications are well established, and do not need to be repeated here other than to note that it is a task to be undertaken using common sense:
"It is well settled that the Court should, from the outset, approach the task of patent construction with a generous measure of common sense. The Court must place itself in the position of a person skilled in the relevant art, being the subject matter of the patent. From this perspective, the patent is to be read as a whole, in the context of the specification and in light of the prevailing common general knowledge and state of the relevant art at the priority date."[1]
[1] Eli Lilly and Company Limited v Apotex Pty Ltd [2013] FCA 214, 100 IPR 451 at [139].
The specification commences by stating the field of the invention as:
"This invention relates to a synergistic fungicidal composition to its method of preparation, to its method of use and to products made therefrom. In particular, the invention relates to a wood preservative for glued wood products, and to its use in a method for the preservation of a glued wood product."[2]
[2] The specification at page 1.
The background to the invention
The specification sets out the background of the invention in clear terms. The use of preservatives in the timber industry is well known:
"Many plantation softwood species, generally members of the Pinaceae family, and certain hardwoods lack natural durability and are subject to rapid degradation by a host of insects and microorganisms that play a vital role in lignocellulosic mineralization and nutrient recycling processes in nature. Thus it is common practice to protect timber and other wood products using insecticides and fungicides."[3]
[3] The specification at page 1.
A range of preservatives are well established, but each has limitations:
"Traditional preservation systems include inorganic preservatives such as copper chrome arsenic, sodium octaborate and alkaline copper quaternary ('ACQ') that are introduced into timber in an aqueous medium, or carbon-based preservatives delivered in a non-aqueous medium termed a light organic solvent preservative ('LOSP'). These approaches achieve moderate levels of preservative penetration and result in generally effective protection but are expensive because they use vacuum and pressure to a greater or lesser extent, and must be performed in a separate step to other wood processing operations, thus incurring additional cost. Inorganic preservatives are loosing favour because of toxicity issues and the accompanying preservation methods require special care to avoid problems with dimensional stability. Persistent solvent residue problems characterise LSOP systems.
In recent years carbon based preservatives and boron compounds have been incorporated into the glues and resins used to make engineered wood products, such as plywood and laminated veneer lumber, and reconstituted wood products such as particle board, oriented strand board and the like. While this system may be integrated easily into veneer and fibre lay up operations, it does require the preservative to be stable under extreme conditions such as heat (up to 250°C), pressure and/or high pH (9-13) commonly encountered during layup and hot pressing of the wood product."[4]
[4] The specification at page 1.
The specification then notes that glueline addition is known, but it also has limitations:
"Glueline addition of biocides presents other challenges. The addition must not significantly change the working properties of the resin … It is therefore imperative to add the least possible amount of biocide to the adhesive that will prevent decay during the service life of the glued wood product."[5]
[5] The specification at page 2.
The specification then states that the fungi that cause decay are dominated by the brown and white rot fungi. Some of these fungi are susceptible to triazole fungicides, and tebuconazole and propiconazole are noted, but they require unworkably high addition rates to achieve efficacy.[6] This leads to the statement that there is a need to improve the efficacy of triazole fungicides:
"there is a need with respect to glueline application to increase triazole addition rates by some means, or in some way overcome the weaknesses of triazole fungicides against certain fungi that can be problematic with glued wood containing products. It is also desirable to increase the efficacy against dry rots and soft rots. At the same time, health, safety and environment considerations are among factors driving a reduction in biocide concentrations in preservative-treated wood products."[7]
[6] The specification at page 2.
[7] The specification at page 2.
Five triazoles are identified by name: triadimenol, triadimefon, cyproconazole, tebuconazole and propiconazole. The structures of these compounds and some of their properties are set out on page 3 of the specification. The general mechanism of action of triazoles is through binding to the cytochrome P450 sterol 14α-demethylase (CYP51), and thereby disruption of the production of ergosterol in fungal membranes – leading to lethal disruption of fungal membrane integrity. The specification admits that cyproconazole is highly selective for the fungal CYP51 compared to human CYP51.[8]
[8] The specification at page 4.
The specification states that in many species triadimefon is reduced to triadimenol, and it is the triadimenol that is the active agent:
"It is known that in many species of fungi, plants and mammals, and in soil, triadimefon is reduced to triadimenol in what is termed an 'activation' process, i.e. for many fungal species triadimenol is the fungicidally active metabolite, and that the sensitivity of individual fungal species to triadimefon is related to the extent of activation."[9]
[9] The specification at page 4.
The specification also notes that triadimenol has a broad spectrum of activity:
"In accordance with the foregoing discussion it has been found that triadimenol controls a much broader spectrum of agricultural fungal pathogens and consequently is more widely used than triadimefon."[10]
[10] The specification at page 5.
The specification also notes that the effectiveness of a fungicide can be increased by combining two or more active ingredients:
"As noted above any single active ingredient will have less effectiveness against certain fungal species. This is counteracted by combining two (or more) active ingredients to provide more effective control of fungal growth at cost effective doses against a broad spectrum of different fungal organisms."[11]
[11] The specification at page 5.
I conclude that the specification sets out the state of the art as:
i)glueline adhesives are known, and
ii)triazole fungicides are known, and are used in glueline adhesives.
The specification sets out the deficiencies of the art as:
i)there is a need to use the minimum amount of fungicide in order to maintain adhesive properties, and
ii)there is a need to increase the efficacy of the fungicide against a wide range of fungal species.
The aim of the invention
Under the heading "OBJECT OF THE INVENTION" the specification states:
"It is an object of the invention to provide an improved composition and/or preparative method thereof and/or use thereof which will obviate or minimise one or more of the previously mentioned disadvantages, or provide one or more of the previously mentioned desirable features, or which will at least provide the public with a useful choice."[12]
[12] The specification at page 6.
I consider that the aim of the invention is the provision of a triazole fungicide composition for glueline application that is an alternative to known compositions, but preferably has improved performance with regard to a minimum amount of fungicide in the adhesive and having a broad spectrum of activity against fungi.
The nature of the invention
The specification and the evidence provide an explanation of certain terms that are used in the specification. I will set this information out before going to the detail of the specification.
Antagonistic "refers to the situation whereby two or more components produce a combined effect which is less than the sum of their individual parts."[13]
[13] The specification at page 8.
Cyproconazole has the formula
This compound is a mixture of isomers at the centres marked with a star (*).
Fortified glue is a glue that includes additives aimed at increasing the strength of the glue:
"The term 'fortified glue additive' has a particular meaning in the adhesives industry and refers to additives aimed at increasing strength characteristics of glue. For instance melamine may be added to urea-formaldehyde (UF) glues to improve bonding strength and the product is referred to as fortified glue."[14]
[14] Frazer 1 at [30].
gai/m3 means grams of active ingredient per cubic metre
Glue is a "general term for any product used in the manufacture of wood products resulting in permanent or semi-permanent adhesion, bonding, chemical bonding, linkage, attachment, etc, of wood or wood derived components such as sawn timber, veneers, flakes, fibres, and the like."[15]
[15] The specification at page 7a.
Dr Frazer considers that, in context, the application is referring to glues that do not contain fungicides until immediately before spreading the glue:
"My interpretation is that the Applicants are trying to exclude products which contain fungicides added at the point of glue manufacture."[16]
[16] Frazer 1 at [31].
Glue additive is not a standard term, but it is readily understood by the declarants:
"I am not familiar with the term 'glue additive' as used in claim 1. I think what the applicant is saying is that the active agents are outside the glue system until the glue is to be used. The additives are then added to the glue immediately prior to spreading the glue."[17]
[17] Norton 2 at [18].
and:
"implies that the fungicidal mixture is added to the glue at some point before the glue meets the wood."[18]
Glueline treatment is "[t]he introduction of a wood preservative to the glue component of a glued wood product"[19]
Synergistic "refers to a particular phenomenon that occurs when the observed fungicidal effect of a mixture of active ingredients is unexpectedly greater than might be expected from the sum of the observed fungicidal effects of the active ingredients administered separately."[20]
Triadimefon has the formula
The compound is a mixture of the isomers at the centre marked with a star (*).
Triadimenol has the formula
This compound is a mixture of isomers at the centres marked with a star (*).
[18] Frazer 1 at [32].
[19] The specification at page 8.
[20] The specification at page 8.
The basic nature of the invention lies in the discovery that triadimenol is an antagonist of cyproconazole, but triadimefon is synergistic with cyproconazole:
"Applicants disclose that, surprisingly, triadimenol displays an antagonistic interaction with cyproconazole with respect to fungicidal activity, whereas triadimefon displays a synergistic interaction with cyproconazole. This is entirely unexpected and surprising when it is considered that in most if not all cases where triadimefon is fungicidal against a particular fungal species, it is actually triadimenol, the metabolite of triadimefon, that is recognised as being the fungicidally active factor, not triadimefon itself."[21]
[21] The specification at page 5.
This discovery leads to the disclosure of a composition containing a synergistically effective amount of triadimefon and cyproconazole. The weight ratio of the actives can be 20:1 to 1:1. The composition can be used as a glueline preservative. The amounts of the actives can be reduced as a consequence of the synergy. In alternative aspects of the invention the ratio of triadimefon to cyproconazole can be 20:1 to 6:1, and the application rate of the combined active ingredients does not exceed 4,500 gai/m3, and the composition is not a fortified glue mixture and is formulated as a glue additive. [22]
[22] The specification at page 6.
The specification has three examples of compositions of triadimefon and cyproconazole (Examples 1, 2 and 3 on page 14). In each case the weight ratio of triadimefon to cyproconazole is 10:1. Examples 4 – 6 examine the efficacy of compositions when applied to fungi on an agar plate. These results demonstrate synergy between triadimefon and cyproconazole throughout the ratio of 20:1 to 5:1 against brown rot, white rot and dry rot species. In contrast, triadimenol and cyproconazole compositions show antagonism. Examples 7 – 12 examine the efficacy of compositions when applied to the glueline of a wood product.
It is clear from the specification that there is a synergy between triadimefon and cyproconazole which extends over the range of 20:1 to 5:1. Consistent with this, Dr Frazer considered that a small degree of synergy was to be expected: "fungicides with the same mode of action exhibit relatively minor synergy."[23] There is no logical reason to expect that the synergy is unique to this range. It is also clear that the synergy is not demonstrated in compositions of triadimenol and cyproconazole, and instead there is antagonism between them. As triadimenol is regarded as the fungicidally active metabolite of triadimefon, [24] this difference in activity is surprising:
"Applicants disclose that, surprisingly, triadimenol displays an antagonistic interaction with cyproconazole with respect to fungicidal activity, whereas triadimefon displays a synergistic interaction with cyproconazole. This is entirely unexpected and surprising when it is considered that in most if not all cases where triadimefon is fungicidal against a particular fungal species, it is actually triadimenol, the metabolite of triadimefon, that is recognised as being the fungicidally active factor, not triadimefon itself. The fact that triadimenol is the active factor is recognised in the art. It is therefore totally unanticipated that triadimefon will have a synergistic interaction with cyproconazole when triadimenol, the active metabolite of triadimefon, itself displays an antagonistic interaction with cyproconazole."[25]
[23] Frazer NZ at [41].
[24] The specification at page 4.
[25] The specification at page 5.
Construction of claim 1
The correct approach to the construction of claims was discussed by Bennett J in H Lundbeck A/S v Alphapharm Pty Ltd:[26]
"the words in a claim should be read through the eyes of the skilled addressee in the context in which they appear … while the claims define the monopoly claimed in the words of the patentee's choosing, the specification should be read as a whole … it is not permissible to read into a claim an additional integer or limitation to vary or qualify the claim by reference to the body of the specification … terms in the claim which are unclear may be defined or clarified by reference to the body of the specification"
[26] [2009] FCAFC 70, 81 IPR 228 at [118] – [120].
The construction of claim 1 can be resolved by consideration of the plain meaning of the words. The claim reads:
A broad spectrum, synergistic fungicidal composition for glueline preservation of a glued wood product comprising as active ingredients:
(A) triadimefon, and
(B) cyproconazole
characterised in that the weight ratio of (A):(B) is from 20:1 to 6:1,
the composition being further characterised in that it is formulated for application at application rates which vary within the range from 225 gai/m3 to 3,900 gai/m3 for triadimefon and within the range from 10 gai/m3 to 643 gai/m3 for cyproconazole, provided that the total application rate does not exceed 4,500 gai/m3, the composition being further characterised in that it is not a fortified glue mixture and is formulated as a glue additive.Some terms used in the claim
I consider that the terms "synergistic", "fortified", "glueline" and "glue additive" are to be understood as I have explained them previously.
Claim 1 is directed to a composition that is a broad spectrum fungicide. It is also synergistic. The synergy clearly relates to the two active components identified as (A) and (B). The specification suggests that synergy would be expected in all compositions having a ratio of (A) to (B) in the range of 20:1 to 6:1 (and also in compositions outside that range). I consider that "synergistic" is a description of the nature of the composition, and is not a limiting feature of the claim. The applicant did not suggest that "synergistic" should be understood in a different way.
The composition is "for" glueline preservation. The normal interpretation of "for" is that the composition is suitable for use in glueline preservation. I see no reason why a different construction should apply to the present claim.
The composition is characterised by the requirement that it is "formulated for" application at a certain rate. I consider that the plain meaning of this expression is that the composition is formulated so that it is suitable for application at the specified rate. However, I am unable to identify any significant features that are necessary to enable the composition to be formulated for application. Accordingly I consider that this feature imposes no limitation on the claim.
The composition is further characterised by the requirement that it is not a fortified glue mixture, and is formulated as a glue additive.
It follows that the characterising features of the composition of claim 1 are:
a)it is a mixture of two actives – (A) and (B);
b)the weight ratio of (A) to (B) is 20:1 to 6:1;
c)it is suitable for use in glueline preservation;
d)it is not a fortified glue mixture; and
e)it is formulated as a glue additive.
Are all of the features essential?
Koppers submitted that the feature of the ratio of the triadimefon to cyproconazole should be regarded as a non-essential feature, and thus disregarded for the purposes of inventive step (discussed later in this decision). It is well known that a claim can contain features that are not essential to the invention, but the situations in which this happens are uncommon. The best known situation is that which is known as parametritis (sometimes called parameteritis).
Parametritis was discussed by Laddie J in Raychem Corp's Patents:[27]
"This is the practice of seeking to repatent the prior art by limiting claims by reference to a series of parameters which were not mentioned in the prior art. Sometimes it includes reference to parameters measured on test equipment which did not exist at the time of the prior art. The attraction of this to a patentee is that it may be impossible to prove now that the prior art inevitably exhibited the parameters and therefore it is impossible for an opponent to prove anticipation. Even if that is what has happened here, it does not alter the task of the court. It must decide whether the opponent has proved anticipation or some other statutory ground of invalidity. Parametritis may make the court's task more difficult, but at the end of the day the test of invalidity must be the same, whatever the form of the claims."
[27] [1997] EWHC 372, [1998] RPC 31 at page 37.
At page 46, he referred to the parameter (the S/D volume ratio) that is used in the claims as:
"essentially arbitrary and has little technical significance. The selection of a group of compositions by reference to such a parameter does not involve any inventive step. Although it may not be obvious, in the common use of that word, to limit a claim by reference to this particular meaningless and arbitrary parameter, that has nothing to do with patentability. Patents are not given for skill in inventing technically meaningless parameters."[28]
[28] At page 46.
In Williams Advanced Materials Inc v Target Technology Co LLC[29] Bennett J considered claims to an optical storage medium having a reflective layer including a silver – palladium alloy. Her Honour noted that the parameters were selected without a purpose:
"there is nothing in the specification that suggests that the proportions or the ranges of the metals in the alloys are in any way part of the invention, other than the mere reference to them. It is a case of 'parameteritis'."
[29] [2004] FCA 1405 at [48], 63 IPR 645 at 654.
In Austal Ships Pty Ltd v Stena Rederi Aktiebolag[30] Bennett J referred to the Williams case, and distinguished it because:
"there is reference in the patent specification and evidence which supports the fact that the parameters have been carefully chosen, are part of the invention and are related to a claimed advantage as part of the combination of the design"
[30] [2005] FCA 805 at [108], 66 IPR 420 at 437.
A final decision that was mentioned by the parties is Otsuka Pharmaceutical Co Ltd v Generic Health Pty Ltd.[31] Beach J referred to parametritis in this way:
"This affliction involves an attempt to re-patent the prior art by limiting claims by reference to a series of parameters not mentioned in the prior art (Raychem Corporation’s Patents [1998] RPC 31 at 37 per Laddie J). The parameter could be something measured on test equipment, which equipment did not exist at the time of the prior art. In the present case, the parameter is a statement in essence of a scientific theory positing a link between relevant disorders of the central nervous system and the 5-HT1A receptor subtype. But to inject this parameter adds nothing to the invention. It does not create a new process or method. It does not create a new use of an old product. In substance, one still has an old use of an old product or a more limited class of an old use of an old product. Scientific knowledge may have been enhanced by the identified association, whatever “association” or “associated” means, between the receptor subtype and the disorder. But there is no new invention by the addition of such knowledge to the claim language or using it as a limitation."[32]
[31] [2016] FCAFC 111, 120 IPR 431.
[32] at [115].
Koppers did not argue that the ratio of triadimefon to cyproconazole is meaningless or has no technical significance. Their argument was that the precise limits of the ratio of triadimefon to cyproconazole – 20:1 to 6:1 – were arbitrarily selected and these limits did not have technical significance. It is clear that the range of 20:1 to 6:1 has been selected because those compositions possess synergy, but the synergy is not unique to this range. While this means there is an arbitrary aspect in the selection of the end points of the range, the range has a technical significance. This is not a case of parametritis.
Do the claims include kits?
At the hearing I raised a concern that the specification appears to define the claim as extending to a kit of individual components. This follows from the following passage in the specification:
"KIT OF PARTS
It will also be understood that where a product, method or process as herein described or claimed and that is sold incomplete, as individual components, or as a 'kit of Parts', that such exploitation will fall within the ambit of the invention."[33]
[33] The specification at page 26.
While this not the clearest piece of writing, it seems certain that it represents an instruction to construe the claims as including kits of the individual components. I consider that the proper construction of the claims includes kits. A kit of known components is normally not regarded as a manner of manufacture. Zelam indicated that it was not their intention to claim kits, and stated that they would like the opportunity to amend the specification if I came to the conclusion that this was the proper construction of the claim. In the circumstances, such an amendment is necessary for the claim to align with Zelam's intention. For the purposes of the remainder of this decision I will treat the claims as if such an amendment has been made.
Construction of claim 17
Claim 17 is another independent claim. It reads:
Use of a combination of (A) triadimefon and (B) cyproconazole in synergistic weight ratios from 20:1 to 6:1 in the manufacture of a broad spectrum fungicidal composition formulated as a glue additive for glueline preservation of a glued wood product for application at an application rate for triadimefon of from 100 gai/m3 to 4,490 gai/m3 and for cyproconazole at an application rate of from 10 gai/m3 to 2,000 gai/m3, provided the total application rate does not exceed 4,500 gai/m3.
Claims of the general form "use of X for the manufacture of a composition for a certain use" are referred to as Swiss claims when they relate to the manufacture of pharmaceuticals for medical use. Swiss claims have a special construction.[34] Claim 17 is not a Swiss claim, and the normal principles of construction apply.
[34] Otsuka Pharmaceutical Co., Ltd v Generic Health Pty Ltd (No 4) [2015] FCA 634, 113 IPR 191 at [100] et seq.
The claim is directed to a "use", in other words it is prima facie a method. Methods are characterised by the steps of the method. The method involves the use of triadimefon and cyproconazole "in the manufacture of a broad spectrum fungicidal composition". There are no specific details of how the composition is prepared, so this step of the method can be done in any way that produces a composition having the specified weight ratio of triadimefon to cyproconazole. The composition is qualified in that it is "for application at" a specified application rate, which implies that it is capable of application at that rate. The claim can be summarised as a method of preparing a composition that is the same as that defined by claim 1, by using triadimefon and cyproconazole.
The person skilled in the art
It is well established that many of the issues in an opposition are answered by reference to the person skilled in the art:
"He is the person to whom the patent is addressed and who must construe it. He is the person whose knowledge will determine whether a patent is novel. He is the person who will judge whether a patent is obvious."[35]
[35] Root Quality Pty Ltd v Root Control Technologies Pty Ltd [2000] FCA 980, 49 IPR 225 at [70].
However, they are an artificial construct that is used as a tool of analysis, and there is a danger in trying to identify them as an actual person or persons:
"The notional person is not an avatar for expert witnesses whose testimony is accepted by the court. It is a pale shadow of a real person – a tool of analysis which guides the court in determining, by reference to expert and other evidence, whether an invention as claimed does not involve an inventive step."[36]
[36] AstraZeneca AB v Apotex Pty Ltd [2015] HCA 30, 114 IPR 445 at [23].
In the present case the art relates to the preservation of wood products. Mr Norton has worked in the wood protection industry since 1970. Dr Frazer has been involved in the wood processing industries since 1975. Ms Drysdale has worked in the wood products industry, and holds a Diploma in Wood Technology. Dr Cookson is a private consultant to the wood preservation industry who previously worked for CSIRO in wood protection. Mr Dorries is the Chief Executive Officer of the Australian Forestry Stand Ltd, with previous experience with the Engineered Wood Products of Australasia, a manufacturers association that promoted the use of plywood. Dr Molloy is a research scientist employed by Zelam Limited. Dr Preston has experience in the wood preservation industry. All of these declarants have a background that enables them to provide relevant evidence. Where there is a conflict between the evidence of the declarants I will consider the weight to be given to the different evidence in the normal way.
The priority date
The statement of grounds and particulars raised questions regarding the priority date of the claims. These matters were not pursued at the hearing. Consequently I am proceeding on the understanding that the priority date of the claims is 29 June 2010.
Inventive step
It is a requirement of subsection 18(1) of the Act that the invention, so far as claimed in any claim, involves an inventive step. Subsection 7(2) states that an invention is taken to involve an inventive step unless it would have been obvious to a person skilled in the art in the light of the common general knowledge, considered alone or together with the prior art:
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).
Subsection (3) prescribes the information that may be considered as:
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 that the skilled person mentioned in subsection (2) could, before the priority date of the relevant claim, be reasonably expected to have combined.
Prior art information is information that is part of the prior art base, and the prior art base is information in a document that is publicly available and information made publicly available through doing an act. Once the common general knowledge and prior art information have been identified, the question is whether the claimed invention would have been obvious. Various verbal tests have been set out to explain this question. In Wellcome Foundation Ltd v V.R. Laboratories (Aust.) Pty Ltd[37] Aickin J 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."
[37] [1981] HCA 12 at [45], 148 CLR 262 at 286.
In Aktiebolaget Hassle v Alphapharm Pty Ltd (Alphapharm)[38] the High Court referred to the well known Cripps question, and concluded "[t]hat approach should be accepted".[39] However, in Generic Health Pty Ltd v Bayer Pharma Aktiengesellschaft[40] the Full Court of the Federal Court stated that the High Court had not rejected alternative formulations:
"We do not think that the plurality in Alphapharm were saying that the reformulated Cripps question was the test to be applied in every case. Rather, it is a formulation of the test which will be of assistance in cases, particularly those of a similar nature to Alphapharm. The plurality did not reject as an alternative expression of the test the question whether experiments were of a routine character to be tried as a matter of course … We do not think there is a divide here in terms of whether an expectation of success is relevant between a test which refers to routine steps to be tried as a matter of course and the reformulated Cripps question."
[38] [2002] HCA 59, 212 CLR 411.
[39] Alphapharm at [53].
[40] [2014] FCAFC 73, 106 IPR 381 at [71].
The requirement that there be an expectation of success was reinforced recently in Apotex Pty Ltd v ICOS Corporation (No 3)[41] where Besanko J concluded:
"It is at least implicit that that step would be taken because it may well succeed.
In this context, it is important to remember that in this country the fact that the development team would consider a step or series of steps worthwhile to try or worth a try does not mean that the resulting invention is obvious or lacks an inventive step. …
In my respectful opinion, the High Court in AB Hässle v Alphapharm endorsed a requirement that the step or series of steps be carried out with an expectation of success."
[41] [2018] FCA 1204 at [347] – [349].
It is useful to bear in mind the comment of Emmett J in ICI Chemicals & Polymers Ltd v Lubrizol Corporation Inc[42] that a distinction can be drawn between inventive step and routine trial and error:
"A distinction must be drawn between an inventive step on the one hand and the trial and error which forms part of the normal industrial function of a skilled worker in the relevant field."
[42] [1999] FCA 345, 45 IPR 577 at [114].
It is clear that there are a range of tests approved by the Courts to assess obviousness, and that each is valid if properly applied. In the present case I consider that it is useful to ask whether it would have been a matter of routine to proceed from the prior art to the invention as claimed.
The problem
Zelam submitted that the problem should be understood as "an effective composition for the fungicidal treatment of glued wood products".[43] Koppers characterised the problem as "to make a new glue line for engineered wood products".[44] I consider that the positions of the parties are merely alternative ways of expressing the problem, and in turn they match the specification. The specification suggests that the problem is the provision of an effective composition for the fungicidal treatment of glued wood products. Further, the composition is an additive for a glue and not itself a glue. The specification further suggests that the composition will obviate or minimise one or more of the disadvantages mentioned previously, or provide one or more of the previously mentioned desirable features, or will at least provide the public with a useful choice. The problem can be summarised as the provision of an effective composition for fungicidal treatment of glued wood products
[43] Applicant submissions at [125].
[44] Opponent submissions at [85].
The question to be answered
The question to be answered is whether the hypothetical addressee, faced with the problem of providing an effective composition for fungicidal treatment of glued wood products, would have taken as a matter of routine whatever steps might have led from the prior art to the invention.
Koppers advanced their argument in two ways. First they argued that the claims lack inventive step in the light of the common general knowledge alone. Second they argued that the claims lack inventive step in the light of the three citations, each considered separately. I will deal with each of these arguments separately.
Inventive step in the light of the common general knowledge
Koppers' argument can be summarised as it was common general knowledge that
a) azoles are used as fungicides,
b) triadimefon and cyproconazole are azole fungicides,
c) a combination of actives is useful, and
d) the ratio of actives in a combination would be varied to optimise the product, including investigating the range of 20:1 to 1:20.
The argument that follows is that a person skilled in the art would have investigated combinations of known azoles in various amounts when attempting to develop a new fungicidal treatment, and this would have inevitably led to a composition within the scope of the claims.
The critical parts of this analysis are whether the azoles triadimefon and cyproconazole were part of the common general knowledge, and whether it would have been a matter of routine to investigate them.
Common general knowledge is the background knowledge and experience available to all those working in the relevant art:
"The notion of common general knowledge itself involves the use of that which is known or used by those in the relevant trade. It forms the background knowledge and experience which is available to all in the trade in considering the making of new products, or the making of improvements in old, and it must be treated as being used by an individual as a general body of knowledge."[45]
[45] Minnesota Mining & Manufacturing Co v Beiersdorf (Australia) Ltd [1980] HCA 9 at [115], (1980) 144 CLR 253 at 292.
It is not enough that information is recorded in a document, even one that is widely circulated. It is only part of the common general knowledge when it is generally known and accepted:
"information does not constitute common general knowledge merely because it might be found, for example, in a journal, even if widely read by persons in the art … Reference in this regard is made to the words of Luxmoore J in British Acoustic Films (1936) 53 RPC 221 at 250, cited by Lehane J in Aktiebolaget Hässle v Alphapharm Pty Ltd (1999) 44 IPR 593; [1999] FCA 628 at 605 [39]:
In my judgment it is not sufficient to prove common general knowledge that a particular disclosure is made in an article, or series of articles, in a scientific journal, no matter how wide the circulation of that journal may be, in the absence of any evidence that the disclosure is accepted generally by those who are engaged in the art to which the disclosure relates. A piece of particular knowledge as disclosed in a scientific paper does not become common general knowledge merely because it is widely read, and still less because it is widely circulated. Such a piece of knowledge only becomes general knowledge when it is generally known and accepted without question by the bulk of those who are engaged in the particular art; in other words, when it becomes part of their common stock of knowledge relating to the art."[46]
[46] Ranbaxy v AstraZeneca [2013] FCA 368, (2013) 101 IPR 11 at [217].
I will turn now to the matters that are relevant to this decision.
a) It was common to formulate fungicidal compositions with more than one active.[47] I accept that this was part of the common general knowledge.
b) Azoles are a known class of fungicides.[48] The effectiveness of azoles varies across the class.[49] I accept that this was part of the common general knowledge.
c) Cyproconazole is an azole that is particularly effective against brown rot.[50] I accept that this was likely to have been part of the common general knowledge.
d) Triadimefon is an azole fungicide that was developed for agricultural use.[51] I accept that this was known, and was likely to have been part of the common general knowledge.
e) The azoles tebuconazole and propiconazole were approved for use in Australia and New Zealand, and cyproconazole and triadimefon were not approved until 2012.[52] Cyproconazole was used in small volumes in Japan.[53] It is not apparent that the commercial use of cyproconazole and triadimefon was part of the common general knowledge.
f) It was known that some combinations of azoles are synergistic.[54] However, wood preservative development is not predictable and unexpected results are common.[55] I accept that these matters were known, but it is less clear that this knowledge was widespread or common in the art.
[47] Cookson at [41], Drysdale NZ 3 at [123].
[48] Cookson at [32], Preston at [34].
[49] Drysdale NZ 1 at [14].
[50] Drysdale NZ 1 at [22].
[51] Preston at [34].
[52] Cookson Exhibit LJC-4, Preston Exhibit AFP-4.
[53] Preston at [34].
[54] Drysdale NZ 1 at [26].
[55] Preston at [100].
Other matters of alleged common general knowledge were discussed by the parties, but it is not necessary to consider them. I consider that the evidence shows that triadimefon and cyproconazole were known azole fungicides, but it was not common general knowledge that they could be used in commercial glueline compositions.
I turn now to the question of what would have been done as a matter of routine. The evidence shows that it was routine to test azoles to identify the best formulation:
"The companies in the industry … were looking at the best combinations of the commercially available azoles to try to get the best formulation. Each azole was tested singly against a range of fungal types. Then, mixtures of the azoles at various ratios over a fairly broad range would be tested."[56]
[56] Drysdale NZ 1 at [28].
I take this to mean that when a company was developing formulations it was routine to test azoles. I do not understand that it was routine to test azoles in the absence of desire to develop a new product. However, as triadimefon and cyproconazole were not part of the common general knowledge with regard to components that would be used in a commercial glueline composition, I am not satisfied that it would have been a matter of routine to investigate them. Consequently, it has not been shown that there was a lack of inventive step in the light of the common general knowledge alone.
Inventive step in the light of the prior art
Koppers relied on three pieces of prior art: NZ 525237, US 2008/0044492 and CA 2621876. I will consider each document in turn.
NZ 525237
NZ 525237 (D1) was published on 28 October 2005.[57] Consequently it is part of the prior art base.
[57] Campbell at [9].
D1 relates to preservatives for wood based products. D1 states:
"Applicant has surprisingly found that triadimefon and triadimenol can be used as preservatives for the protection of wood-based products against attack and destruction of microorganisms, especially of fungi.
Surprisingly triadimefon and triadimenol are stable under the conditions of the glue-line treatment and thus can be employed as preservatives in the manufacturing of glued wood-based products. In some cases, under alkaline conditions, triadimefon is converted into triadimenol which is stable under these conditions and which also exhibits the required biological properties."[58]
[58] D1 at page 5.
It is clear that the preservative in D1 is characterised by the use of "triadimefon and/or triadimenol".[59] Table 2 in D1 shows that triadimefon has high efficacy when used in the glueline of plywood manufactured from pinus spp using phenol formaldehyde glue. There is no data in relation to the use of triadimenol, or the use of triadimenol and triadimefon.
[59] For instance, D1 at page 6.
The significance of D1 for the present proceeding relies on the following passage of text:
"In a further embodiment of the present invention triadimefon and/or triadimenol are used in mixture with at least one further fungicide, preferably selected from tebuconazole and cyproconazole.
It was found that surprisingly triadimefon and/or triadimenol enhance the protective effectiveness of other triazole fungicides, namely tebuconazole and cyproconazole, in glued wood based products, when applied in a combination product. Combinations of triadimefon with tebuconazole, preferably in a molar ratio of 5:1 to 1:2, or with cyproconazole, preferably in a molar ratio of 5:1 to 1:3, provide a broad protection of glued wood based products against decay causing fungi."[60]
[60] D1 at page 13.
The key difference between the disclosure of D1 and the claimed invention lies in the selection of a combination of triadimefon and cyproconazole in the ratio of 20:1 to 6:1. Would the hypothetical addressee, faced with the problem of providing an effective composition for fungicidal treatment of glued wood products, have arrived at this combination as a matter of routine? The combination of triadimefon and cyproconazole is suggested by D1, so it is reasonable to conclude that it would be a matter of routine to do what D1 teaches in the expectation that the combination would have the fungicidal properties that D1 suggests. The difficulty lies in what ratio of triadimefon to cyproconazole would have been prepared as a matter of routine.
D1 states that the mole ratio of triadimefon to cyproconazole is "preferably" 5:1 to 1:3. This can be converted to a weight ratio of 5.03:1 to 1:2.98.[61] It is reasonable to conclude that it would have been a matter of routine to prepare a composition having the preferred weight ratio of 5.03:1 to 1:2.98. Based on the teaching of the application this would have been an effective composition for fungicidal treatment of glued wood products. However, this is not within the scope of claim 1. This leads to the ultimate question of whether it would have been a matter of routine to go further and also vary the weight ratio of triadimefon to cyproconazole?
[61] Frazer NZ at [60].
Dr Frazer says he would not have been surprised to find that a composition having a ratio of 20:1 to 6:1 would be effective:
"Therefore, if I was reading Dl before the priority date of 29 June 2010 I would not be surprised to find that a combination of triadimefon and cyproconazole showed a synergistic interaction, nor would I be surprised if the formulation contained more triadimefon than cyproconazole. Given the expected synergy from reading Dl, I would not have been surprised (before 29 June 2010) to have found synergy at a ratio of 20: 1 to 6: 1 in the glueline. I cannot determine from the opposed application if there is an improvement compared to the 5: 1 ratio of Dl because there is no experimental evidence comparing the ratios of the opposed application to 5: 1."[62]
[62] Frazer NZ at [61].
However, this does not establish that it would have been a matter of routine to prepare such a composition. In relation to D2, Ms Drysdale stated that it would have been routine to investigate ratios in the range of 20:1 to 1:20.[63] However, that was in the context of the very broad ratio disclosed in D2 (as discussed below), so I cannot safely infer that it would have been routine to vary the ratio as disclosed in D1.
[63] Drysdale NZ 2 at [56].
A further difficulty relates to whether it would have been a matter of routine to prepare a glue additive. It is not clear to me that the composition of active agents in D1 is formulated as a glue additive rather than a glue. For instance, D1 appears to suggest that the active compounds are added to the glue, but is silent on whether they are first formulated as an additive composition:
"It is a known practice to add a wood preservative to the glue or glue system during the manufacturing process, the so-called glue-line treatment."[64]
"According to the method of the present invention, triadimefon and/or triadimenol are preferably added to the glue during the process of manufacturing of the wood-based products. It also possible to first prepare a composition containing a glue, triadimefon and/or triadimenol and optionally one or more solvents with are compatible with the glue or glue system and to apply such composition to the wood particles in the manufacturing process."[65]
[64] D1 at page 12.
[65] D1 at page 12.
D1 does not contain any examples of either glues or compositions of additives. I conclude that D1 does not, of itself, suggest preparing a glue additive. I am not aware of anything in the evidence that suggests this would have been a matter of routine.
Neither D1 nor the evidence establishes that it would have been a matter of routine to prepare a composition having a ratio of 20:1 to 6:1, or that it would have been a matter of routine to prepare a composition of additives. I consider that it has not been established that the composition of claim 1 lacks inventive step in the light of D1. In this situation it is not necessary to consider the claims that are appended to claim 1.
Turning now to claim 17, it follows that since the composition of claim 1 does not lack an inventive step a method of preparing such a composition also does not lack an inventive step. It is not necessary to consider the claims that are appended to claim 17.
It has not been shown that the claims lack inventive step in the light of D1.
US 2008/0044492
US 2008/0044492 (D2) was published on 21 February 2008. Consequently it is part of the prior art base.
D2 states that it relates to use of cyproconazole for the protection of wood:
"[0001] The invention relates to the use of the compound α-(4-chlorophenyl-α-(1-cyclopropyl-ethyl)-1H-1,2,4-tiazolo-1-ethanol (cyproconazole) as a microbicide for the protection of industrial materials, and to synergistic mixtures containing this compound."[66]
[66] D2 at page 1.
D2 makes it clear that the microbicidal activity of the cyproconazole compositions includes fungicidal activity:
"[0010] Surprisingly, these compounds display a particularly powerful microbicidal, in particular fungicidal, activity against microorganisms which are relevant in the protection of materials, combined with a broad spectrum of action; they are active, above all, against moulds and wood-discolouring and wood-destroying fungi."[67]
[67] D2 at page 1.
Other components can be included in the composition, such as a further fungicide or an insecticide:
"[0060] The active compound of the formula (1) is preferably mixed with at least one other antimicrobially active substance, fungicide and, in particular, with other active compounds, to increase the spectrum of action or to achieve particular effects such as, for example, an additional protection against insects. In many cases, this results in synergistic effect, that is to say, the activity of the mixture is greater than the activity of the individual components. Particularly preferred components for the mixtures are, for example, the following compounds: …
[0066] Azoles such as triadimefon, triadimenol, bitertanol, tebuconazole, propioconazole, azaconazole, hexaconazole, prochloraz or bromuconazole, metconazole, penconazole, difenoconazole, fenbuconazole, opus, fensilazole."[68]
[68] D2 at page 3.
It is clear that D2 envisages the possibility of combining cyproconazole with a wide range of compounds, of which triadimefon is one. D2 suggests that the ratio of the compounds can be selected from a very broad range:
"[0139] The microbicidal compositions or concentrates used for the protection of industrial materials contain the active compound of the formula (I) in a concentration from 0.01 to 95% by weight, in particular 0.01 to 60% by weight, and additionally, if appropriate, 0.001 to 95% by weight of one or more other suitable fungicides, insecticides or other active compounds as mentioned above."[69]
[69] D2 at page 4.
Ms Drysdale declared that it would have been routine to investigate ratios in the range of 20:1 to 1:20:
"Given that it was well known before the priority date of the patent application to combine azoles, and using a ratio of 1:20 as a starting position, it would have been inevitable that a narrower effective range would have been determined. As I mentioned in my first affirmation, producing a dose response curve, while requiring time, cost and effort, was (and still is) a routine process before the priority date of the patent application."[70]
[70] Drysdale NZ 2 at [56].
The way in which the composition is used is only briefly explained as follows:
"[0059] The protection of wood is particularly effective when large-scale impregnating treatments, for example vacuum, double vacuum or pressure treatments, are used."[71]
[71] D2 at [0059].
This indicates that glueline application is not intended. Claim 10 also relates to the use of the composition:
"10. A method of protecting an industrial material against the deleterious effects of microorganisms, said method comprising applying to said industrial material an amount of the antimicrobial composition according to claim 7 that is effective to protect said industrial material against said microorganisms."[72]
[72] D2 at page 5.
There is nothing in D2 to suggest that the composition is a glue additive for glueline application. Thus the critical question is whether it would have been a matter of routine to use a composition of D2 as a glue additive for glueline application. The evidence shows that glueline addition was known, and had some advantages over other preservation approaches.[73] However, it was only known for the application of insecticides, and fungal protection was only achieved by non-glueline applications.[74] Consequently I am not satisfied that it would have been a matter of routine to apply the composition of D2 in a glueline application. It follows that it has not been shown that the invention lacks inventive step in the light of D2. It is not necessary to consider the claims that are appended to claim 1.
[73] Norton 1 at [15], [19].
[74] Cookson at [22].
Turning now to claim 17, it follows that since the composition of claim 1 does not lack an inventive step a method of preparing such a composition also does not lack an inventive step. It is not necessary to consider the claims that are appended to claim 17.
It has not been shown that the claims lack inventive step in the light of D2.
CA 2621876
CA 2621876 (D3) was published on 15 March 2007. Consequently it is part of the prior art base.
D3 states that it relates to mixtures of triadimefon for the protection of wood products:
"The present invention relates to novel synergistically effective mixtures comprising, firstly, triadimefon and/or triadimenol and, secondly, known insecticides, to compositions based on these mixtures and to the use of these mixtures and compositions for protecting industrial materials, in particular wood and timber products, and also wood/plastic composites, against attack, damage and/or destruction by biological pests."[75]
[75] D3 at page 1.
D3 goes on to note that additional components can be added, and one of those is cyproconazole:
"To widen the activity spectrum or to obtain particular effects, the synergistic mixtures according to the invention can be combined with at least one further microbicidally active compound. In particular, the synergistic mixture may comprise at least one further active compound from the group of the fungicides and antibacterially active compounds.
Preference is given in particular to mixtures with one or more of the following microbicidal components: dichlofluanid, tolylfluanid, carbendazim, fenpropimorph, bethoxazin, thiocyanatomethylthiobenzothiazol, 3-iodo-2-propynyl n-butylcarbamate, zinc pyrithione, copper pyrithione, N-(3-aminopropyl)-N-dodecylpropane-1,3-diamine, tebuconazole, propiconazole, cyproconazole and copper salts."[76]
[76] D3 at page 4.
100. The mode of application is by any customary method, including glueline application:
"If the materials to be protected are wood, timber products or wood/plastic composites, the application is by customary methods, for example by spraying, painting, dipping, industrial impregnation processes, for example vacuum, double vacuum or pressure processes, and by addition to the glue or by addition via the compounder or mixer, and also via master batches.
A particularly effective protection of wood is achieved by industrial impregnation processes, for example by vacuum, double vacuum or pressure processes."[77]
[77] D3 at page 8.
101. The amounts of the components are very broadly described:
"The mixtures according to the invention generally comprise 0.01 – 85 per cent by weight of triadimefon and/or triadimenol, 0.001 – 15 per cent by weight of at least one of the insecticides mentioned and, if appropriate, 0.01 – 80 per cent by weight of at least one further microbicidally active compound, in particular from the group of the active compounds mentioned above.
Preferably, the mixtures according to the invention comprise 0.1 – 40 per cent by weight of triadimefon and/or triadimenol, 0.01 – 5 per cent by weight of at least one of the insecticides mentioned and, if appropriate, 0.05 – 30 per cent by weight of at least one further microbicidally active compound, in particular from the group of the active compounds mentioned above."[78]
[78] D3 at page 5.
102. It seems that a composition of the type covered by the claims of the application is within the range of compositions that are envisaged by the totality of the disclosure in D3. It is also possible that any single selection of (i) triadimefon (ii) cyproconazole (iii) the ratio of triadimefon:cyproconazole or (iv) use of glueline addition would have been a matter of routine. However, the question that I must consider is whether the selection of the total combination of the four elements would have been a matter of routine.[79] In the absence of appropriate evidence, this is not self-evident. I conclude that it has not been shown that claim 1 lacks inventive step in the light of D3. I do not need to consider the claims that are appended to claim 1.
[79] see Alphapharm at [41]: "The claim is for a combination, the interaction between the integers of which is the essential requirement for the presence of an inventive step. It is the selection of the integers out of 'perhaps many possibilities' which must be shown by Alphapharm to be obvious, bearing in mind the selection of the integers in which the invention lies can be expected to be a process necessarily involving rejection of other possible integers."
103. Turning now to claim 17, it follows that since the composition of claim 1 does not lack an inventive step a method of preparing such a composition also does not lack an inventive step. It is not necessary to consider the claims that are appended to claim 17.
104. It has not been shown that the claims lack inventive step in the light of D3.
Secondary indicia
105. Zelam submitted that the invention as claimed solves a long standing problem in the art, and that the commercial embodiment of the invention had been highly successful. Given my conclusions above it is not necessary to consider these submissions.
Conclusion
106. It has not been shown that any of the claims lack inventive step. Subject to the claims being amended to exclude the option to include kits, the opposition is not successful.
Costs
107. The parties submitted that costs should follow the event. I see no reason to depart from that result. The issue of the construction of the claims including kits was raised by me, so the outcome of the opposition is that the opponent is not successful. Costs should be awarded against Koppers.
Dr S.D. Barker
Deputy Commissioner of Patents
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