MELEA LIMITED v Battenfeld Australia Pty Ltd, Battenfeld GmbH
[1998] APO 16
•26 March 1998
official notice
decision of a delegate of the commissioner of patents
Application : No. 616913 in the name of MELEA LIMITED
Subject: Injection moulding
Action: S.59 opposition under the 1952 Act by BATTENFELD AUSTRALIA PTY LTD and BATTENFELD GmbH. Second hearing on substantive opposition.
Decision: Issued .
Abstract: Opposition unsuccessful, amended claims found novel and not obvious.
One feature in claim 1 was found to be essential, inter alia, due to the structure of the claim.
A document filed by the opponents after the hearing was considered with a mind to invoking R 5.11, but was found to be not relevant.
| patents act 1990 decision of a delegate of the commissioner of patents |
Re:Patent Application No. 616913 by MELEA LIMITED and opposition under S.59 of the Patents Act 1952 by BATTENFELD AUSTRALIA PTY LIMITED and BATTENFELD GmbH.
background
Convention application 616913, for a patent for an invention relating to injection moulding, comprises a complete specification filed on 4 November 1988, with priority claimed from application 121908 filed in the United States on 17 November 1987. The applicant named in the originally filed documents was James W. Hendry, but after actions under S.113 of the 1990 Act, the application continued first in the name of Michael Ladney, then in the name of MELEA Limited. The Convention application was advertised accepted on 14 November 1991 and opposed on 10 March 1992. As the application was filed before, but accepted after, the commencement of the Patents Act 1990, Section 59 of the Patents Act 1952 applies to the opposition, but Chapter 5 of the Patent Regulations 1991 applies in relation to the opposition proceedings.
After the opponents’ evidence-in-support was filed, the applicant proposed amendments to the specification under S.104 of the 1990 Act; these were allowed on 11 June 1993. However, the opposition was maintained and the matter was heard in Canberra on 28 November 1994. In a decision dated 13 February 1995 I found that the opposition was successful and I allowed the applicant 60 days to propose amendments to overcome the objections to the specification. The opposition was successful because I found that the invention was not fully described and that claim 1 was anticipated by British Patent GB 2139548.
The applicant proposed further amendments to the specification on 13 April 1995 and these amendments were advertised as allowed on 14 March 1996. The request to amend was accompanied by an affidavit by the abovesaid Mr Hendry; who, as well as being the originally named applicant in the present application, is also the inventor and one of the applicants named in British Patent GB 2139548.
The opponents objected that the affidavit constituted new evidence in the opposition, so on 15 August 1995 the applicant formally applied under Regulation 5.10(4) for permission to serve the affidavit as further evidence. The opponents objected to the application to serve further evidence, the matter was heard in Canberra on 23 May 1996, and in a decision dated 13 June 1996 I granted the application, because it could have had an important influence on the final result of the opposition.
On 12 July 1996 the opponents served their evidence-in-reply to the further evidence. On 22 August 1996 the applicant filed a further request to amend the specification under S.104; proposed amendments were filed on that date and on 26 November 1996. The latter amendments were advertised on 13 February 1997 and allowed on 19 June 1997.
After considering the amendments, the opponents maintained their opposition to the specification and requested a review of the matter. The matter was thus heard in Sydney on 22 December 1997; the applicant was represented by Mr Greg Turner, patent attorney, assisted by Mr Ian Millar, and the opponents were represented by Mr Craig Vinall, patent attorney.
THE SPECIFICATION
The specification indicates that the invention relates to a process for injection moulding where a gas is injected under high pressure into a molten plastic stream as it enters a mould sprue and a mould space. The gas assists the filling of narrow or elongated mould spaces with molten plastic. The molten plastic is usually injected at high pressure, so the gas must also be injected at high pressure and over a short time period. The specification indicates that conventional apparatus which has attempted to simultaneously inject pressurised molten plastic and gas has not been satisfactory because the gas pressurising equipment has been too slow to build up the necessary pressure at exactly the right time in the process. This has resulted in "shadow marks" being formed on the surface of the moulded articles. The invention solves this problem by using a two-way directional high pressure air valve to control the flow of gas from a high pressure gas storage tank at the appropriate time. The valve is opened after a time delay just sufficient to permit the molten plastic to fill the mould sprue.
When I considered the specification in my decision of 13 February 1995, claim 1 read as follows:
A process for producing an injected moulded product comprising:
supplying a plastics material;
introducing a molten stream of the plastics material into a mold space at a first pressure;
introducing a gas into said molten stream of plastics material immediately after said molten material has passed a position at which the gas is introduced thereby forming a gas cavity in the molten material, the gas being introduced at a second pressure, the gas in said gas cavity exerting pressure on the surrounding plastics material to urge the material toward a surface of said mold space;
continuing to feed plastics material to said mold space;
simultaneously continuing to inject gas into the said gas cavity;
terminating the supply of molten material;
terminating the supply of gas;
subsequently maintaining a pressure within the gas cavity as the plastics material cools and solidifies; and,
venting the gas from said gas cavity at a controlled rate."
The opposition to this claim was successful because I found that it was anticipated by British Patent GB 2139548, which discloses a process with a controlled rate of venting gas used in an injection moulding process. In my earlier decision I also found that the process described in that British Patent, known as the CINPRES process, was a matter of common general knowledge in Australia at the priority date of the claims.
The amendments allowed on 19 June 1997 resulted in the specification ending in ten claims as follows:
A process for producing an injection moulded product, comprising:
[A] storing a quantity of gas in a storage chamber, utilizing gas from a gas supply source, introducing a stream of molten plastics material at a plastics pressure into a mould space; introducing the gas into the molten stream of plastics material at a first pressure at least as high as said plastics pressure by pressurizing a quantity of gas from the supply source to said first pressure at a gas inlet passage immediately after said molten material has passed the position at which the gas is introduced, thereby forming a gas cavity in the molten material, the gas exerting pressure on the surrounding material to urge the material towards the surfaces of said mould space; continuing to feed plastics material to said mould space; simultaneously continuing to inject gas into said gas cavity during the step of continuing to feed; maintaining the pressure of the quantity of gas at the gas inlet passage during the steps of continuing to feed and continuing to inject; terminating the supply of molten plastics material after a predetermined amount of the molten plastics material has been fed, sufficient to completely cover the surfaces of the mould space; terminating the supply of gas; maintaining a gas pressure within the gas cavity as the plastics material cools beneath its softening point, venting the gas from the gas cavity in the plastics material wherein the process further comprises:
[B] pressurizing the gas to said first pressure before the step of introducing said quantity of gas into said molten stream of plastics material;
[C] maintaining said first pressure of the quantity of gas at the gas inlet passage at substantially the first predetermined gas pressure during the steps of continuing to feed and continuing to inject;
[D] reducing the first gas pressure to a second predetermined gas pressure which is lower than the first gas pressure and subsequently maintaining the second gas pressure within the gas cavity as the plastics material cools beneath its softening point; and
[E] controlling the rate of venting by means of a metering valve or other flow control valve.
[The five steps of claim 1 I have designated A to E for convenient reference].
A process according to claim 1 wherein said step of venting is accomplished through a passage in a nozzle through which said step of introducing a molten stream of plastic is performed.
A process according to claim 2 wherein said step of introducing gas and continuing to inject gas takes place through said passage in said nozzle.
A process according to any one of claims 1 to 3 wherein the quantity of gas introduced into said mould space is not measured.
A process according to any one of claims 1 to 4 wherein the pressure of the gas introduced into said mould space is substantially maintained at said first pressure prior to termination of the supply of gas.
A process according to any one of claims 1 to 5 wherein said first pressure is between 1.379 x 107 NM-2 and 1.03 x 108 NM-2 (2,000 psi and 15,000 psi).
A process according to any one of claims 1 to 6 wherein the gas in said storage chamber is maintained at said first pressure when gas at said first pressure is introduced into the molten stream of plastics material, by means of introducing additional gas at said first pressure into the storage chamber.
A process according to any one of claims 1 to 7 wherein the gas is nitrogen.
A process according to any one of claims 1 to 8 further comprising the step of storing a quantity of gas in a storage chamber before the gas is introduced into the molten stream of plastics material; and replenishing the gas in said storage chamber; said step of replenishing comprising the steps of:
introducing the gas into a pump;
increasing the pressure of the gas by means of said pump until the gas pressure equals said first pressure; and
introducing the gas at said first pressure into said storage chamber.
A process for producing an injection moulded product, said process incorporating the step of venting the gas at a controlled rate, substantially as hereinbefore described with reference to the accompanying drawings.”
grounds of opposition; the evidence
In my earlier decision I made the following comments on the grounds of opposition and the evidence:
“The opponents’ statement of grounds and particulars alleges that the invention was obtained, that the claims of the specification should not have Convention priority, that the specification does not comply with S.40 of the Act, and that the claims are obvious and not novel. However, at the hearing only the grounds of novelty and obviousness were pursued in-depth.
“The evidence-in-support includes 7 declarations; some of the more relevant are as follows:
. Colin William Dibbs, dated 29 June 1992. Mr Dibbs, Principal Technical Service Officer with ICI's Plastics Technical Centre, refers to British patent application 2139548, published in 1984. (The British applicant is James W. Hendry, the original applicant for the present Australian Application 616913). Mr Dibbs declares, inter alia:
"That in October 1987 the Plastics Institute of Australia conducted an "AUSPLAS" exposition in Melbourne, and at the time of that exposition a "CINPRES" gas injection attachment was demonstrated to large numbers of people who attended the exposition. The equipment used was substantially in accordance with Figure 5 of the British patent specification GB 2139548..."
. Kerry William Henderson, dated 25 June 1992. Mr Henderson, Managing Director of Plas-Tec Pty Ltd, a South Australian injection moulding company, declares, inter alia, that he expressed interest in the CINPRES equipment to ICI in May 1987; and that a proposed sub-licence was in respect of the subject matter described in GB 2139548. He also declares that later the CINPRES order was cancelled and that he chose the present opponent Battenfeld's "AIRMOULD" equipment instead.
. Clive James Dawber, dated 25 June 1992. Mr Dawber, a technician in the plastics industry since 1977 and an employee of Battenfeld, Australia, refers mainly to the AIRMOULD process and equipment; but he also refers in paragraph 9 to "the well established and used CINPRES process".
. Richard Kenneth Maddern, dated 26 June 1992. Mr Maddern, a patent attorney and electrical engineer, refers to several Australian, British and United States patents which he alleges either disclose the present invention or give an overview of the state of the art. Of particular interest are two US patents published in 1978: 4,129,635 to Yasuike, and 4,101,617 to Friederich, both of which disclose a "simultaneous injection" process similar to that described in the present application.
“A considerable amount of the opponents’ evidence related to its AIRMOULD process (Mr Henderson indicates that it is Battenfeld's "equivalent to CINPRES"). However, there are conflicting parts in this evidence relating to the dates when documents describing the process were published in Australia and when the process was first used in Australia. I therefore consider this evidence to be of low probative value.
“The evidence-in-answer consists of a declaration by Mr Munday [the Applicant’s previous patent attorney], dated 20 August 1993. Attached thereto is a copy of the judgement and portion of the transcript of a trial in the United States involving the abovesaid James W. Hendry, the present inventor, Indra Baxi, and the US basic application. The transcript of a cross-examination of Mr Baxi on the subject of the last step in the process of present claim 1, ie. "venting the gas from said gas cavity at a controlled rate", suggests that there may be some advantages associated with using a metering valve for this part of the process.
“The evidence-in-reply includes three declarations:
. Murray Amos, dated 3 March 1994. Mr Amos declares that he is the proprietor of a business specialising in the sale and distribution of pneumatic control equipment, that pressure reducing valves, metering valves and the like are well known, and that it would be obvious to use such valves when it was recognised that the flow rate of a vented gas was excessive.
. Helmut Eckardt, dated 18 February 1994. Mr Eckardt is an injection moulding specialist employed by Battenfeld GmbH in Germany. He has considerable experience in the art, mainly in Germany, but he declares that he has travelled to Australia on numerous occasions and that he is familiar with the state of the art in Australia. He declares, inter alia:
That the CINPRES process which is described in GB 2139548 and AU 27893/84 was "commonly known and used prior to November 1987 both internationally and in Australia".
That it was a recognised common problem with the CINPRES and other known processes that a sudden release of pressure could cause molten plastic to be blown back through either the sprue of the moulded component or air passages within the nozzle, thus leading to blockages and bubbles.
That numerous solutions to these problems had been used before November 1987 in Australia, eg:
.holding the product in the mould cavity for a longer period of time,
.slowly retracting the injection nozzle to restrict the venting orifice,
.restricting the diameter of the sprue or the injection gate to provide a smaller orifice, or
. allowing the pressure to vent through the air passages and valves of the injection gas line, the resistance thus slowing the pressure release
“In paragraphs 5 and 6 of his declaration, Mr Eckardt refers particularly to venting methods used in the CINPRES process, viz:
"Prior to November 1987....it was and still is common practice on CINPRES equipment both internationally and in Australia to effect a control of the venting rate by only slightly withdrawing the injection nozzle....or by controlling the retraction rate of the piston pumps."
"In particular the CINPRES process as described in British patent specification 2139548 shows a staged pressure reduction which results from withdrawal of a piston-type pump. In particular at page 3 lines 14-20 the specification describes pressure reduction by withdrawal of a piston so that the pressure is reduced from 400 psi to 200 psi. The rate at which this pressure reduction occurs is controlled by the rate of withdrawal of the piston which in itself is controlled by the associated hydraulic equipment. Under normal operating speeds the rate at which the piston is withdrawn provides a slower rate of pressure reduction by comparison to withdrawal [sic] of the injection nozzle, and therefore in some instances alleviates the problem associated with molten plastic blow-back. In my opinion, the system described in British patent specification [sic] in itself is a form of controlled venting rate."
. A second declaration from Mr Henderson, dated 21 February 1994. Mr Henderson refers to Mr Eckardt's declaration, he agrees with all of the points raised by Mr Eckardt, and he attests to Mr Eckardt's standing and expertise in the art.”
The further evidence filed by the applicant on 13 April 1995 is a declaration by the abovementioned James W Hendry. Mr Hendry declares that:
He has been active for over 50 years in the field of plastic injection moulding and that he has more than 12 years’ experience with gas-assisted injection moulding processes and apparatus.
There are advantages associated with controlling the rate of venting gas from the gas cavity; he discusses these advantages.
He is the inventor named in GB 2139548, he co-operated with CINPRES in the development of its injection moulding process, and that “at no time was it considered to vent the nitrogen to atmospheric pressure or above at a controlled rate ....”
The evidence-in-reply to the further evidence, filed by the opponents on 24 July 1996, comprises a further declaration by Mr Eckardt dated 10 July 1996. Mr Eckardt declares that:
He agrees with Mr Hendry’s discussion of the advantages associated with controlling the rate of venting.
It is unlikely that people developing the CINPRES process would not have been aware that this process overcame blow back blockage problems.
The pressure reduction from 400 psi to 200 psi disclosed in GB 2139548 and then to atmosphere is of itself a controlled rate of venting
submissions
The opponents’ submissions relating to the amended claims are summarized as follows:
Many parts of amended claim 1 do not expand the meaning of claim 1 beyond the claim subject of the first hearing. Steps D and E are the only features not in the earlier form of the claim.
Features D and E are non-essential features of the invention, or, if they are found to be essential, they have not been fully described in the specification and the specification does not comply with S.40(1)(a).
If it was construed from the specification that features D and E were non-essential, then no amount of additional information should be allowed to influence that finding. In any case there is no such additional information that would allow such an interpretation.
Claim 1 is not clear and succinct.
Claim 1 is not novel in the light of the CINPRES process. Re feature D: the equivalent British Patent 2139548 discloses a two-step pressure reduction process where the pressure is reduced from 400 psi to 200 psi. Re feature E: a skilled addressee would have seen the use of a metering valve as a trifling variation
The appended claims are also not novel; the features of claims 4,7,9 and 10 are disclosed in GB 2139548 and the features in claims 2,3,5,6 and 8 are non-essential.
The abovementioned CINPRES process, the similar AIRMOULD process referred to in the evidence, and flow control or metering valves were all matters of common general knowledge in the art at the priority date.
The invention as now claimed is obvious in the light of the common general knowledge. The method of solving the problem addressed by the invention is to slow the venting rate and there is no invention in using components that are designed and used for that very purpose and are within the common knowledge of the person skilled in the art.
The applicant’s submissions relating to the amended claims are summarized as follows:
Features C, D and E are important features introduced into claim 1 by the November 1996 amendments.
The further evidence has no relevance to the claims as amended.
Feature E is not anticipated in GB 2139548.
None of the prior art discussed in the evidence discloses the method of claim 1 as amended.
There are important advantages to be gained by controlling the rate of venting by means of a metering valve or other flow control valve, including less likelihood of (1) collapse of the heavier sections of the moulded body and (2) expulsion of loose particles into the workplace air and (3) clogging of gas passages by loose particles.
Even if one acknowledges that metering valves are well known, there is no evidence to suggest that it would have been obvious for the skilled addressee to modify the CINPRES apparatus to incorporate a metering valve.
There is no evidence put forward by the opponents as to what constitutes a mechanical equivalence. Therefore there is no basis upon which they can support an attack via novelty.
DECISION
Construction of claim 1
Prima facie the November 1996 amendments to claim 1 appear to be substantial, the claim is considerably longer for example. However, closer analysis reveals that it is narrower in scope but not as narrow as first thought. I base this conclusion on the following:
Feature A does not seem to add anything to the earlier version of the claim, despite a few extra phrases here and there. The opponents’ submissions on this matter were not challenged by the applicant.
Feature B seems to be already inherent in lines 3-7 of feature A. Also, this is not a feature which the opponents referred to, in its written submissions, as being a distinguishing feature.
Feature C is referred to in the applicant’s submissions, but the opponents do not recognize it as being of any significance. In my view it seems to be inherent in lines 12 and 13 of feature A.
Features D and E are recognized by both parties as narrowing the previous version of the claim, and I concur with this construction.
The discussion above of features B and C suggests that these features may be redundant, but I do not think an objection under S.40 is warranted, because no lack of clarity issues have arisen. Verbosity per se may not always be objectionable, see for example Beloit Corporation’s Application (No.2) [1974] RPC 478.
The opponents have submitted that features D and E are not essential features because:
there is no emphasis placed on these features in the description, especially on the use of metering valves,
they do not affect the way that the invention works and
the specification does not refer to any advantages associated with these features.
I note that the specification has been amended since my previous decision, in an attempt to more clearly define the invention. I agree with the opponents that there is some lack of emphasis on features D and E in the specification, but I think the specification is now sufficient to indicate that these features do affect the way the invention works, and that there are some advantages associated with these features; see amended pages 4, 4A and 14.
The issue I have to decide is whether these features are essential features of claim 1. In this regard I think the structure of the claim is important. There are a multitude of steps in claim 1, which is a “process” claim, but most of these steps are combined into one main step, ie. feature A. Steps B to E are given prominence by being separated from step A, and I think there is a clear implication in the structure of the claim that features B to E are more directed to matters which distinguish the invention from the prior art.
Taking these abovementioned matters into account, I think it is appropriate to construe features B to E as essential features of claim 1.
Also, although there is some lack of emphasis, I think these features are sufficiently described. The amended abstract and amended pages 4, 4a and 14 discuss the important features D and E within the context of the invention. Thus there is no objection under S.40.
Construction of feature E
In my previous decision I construed the feature “venting the gas from said gas cavity at a controlled rate” as being broad enough to include the feature of reducing the gas pressure from 400 psi to 200 psi over the return movement of the hydraulic piston in the prior art apparatus. Now however, I think feature E is of a narrower construction: firstly because the abovementioned feature in the prior art, which is also a feature of the present invention, can be equated to feature D in the present form of the claim, and there is a presumption that feature E is something different to feature D; and secondly because the inclusion of the phrase “by means of a metering valve or other flow control valve” suggests, in the light of the description and the evidence, that there is some degree of gradual release of pressure. The evidence also suggests that the release is more gradual than the release of pressure effected with the prior art apparatus.
Clarity
The opponents submitted that claim 1 is not clear and succinct because the claim
“states that the gas pressure within the gas cavity is maintained as the plastic material cools beneath its softening point after termination of the supply of gas and molten material. However, the specification also states that the first gas pressure is reduced to a lower second predetermined gas pressure and that this second gas pressure is maintained while the plastic material cools beneath its softening point. This second feature of claim 1 is inconsistent with the first feature which requires the molten plastic to have already cooled below its softening point.”
In my view this matter is not objectionable; a person skilled in the art would most likely construe the first-mentioned pressure as being a broad term which suggests that there is some pressure above atmospheric maintained as the plastic cools, and the maintained pressure can then be reduced from a first predetermined pressure to a second predetermined pressure, both of which are above atmospheric.
Novelty
As discussed above, features D and E are the prima facie distinguishing features of claim 1. Also as discussed above, when construing the cited British patent in the light of present claim 1, I think the feature of reducing the gas pressure from 400 psi to 200 psi over the return movement of the hydraulic piston disclosed in the citation can be read onto feature D of present claim 1. It follows then that present feature E is the sole remaining distinguishing feature. I am satisfied that this feature is not disclosed in the citation: firstly because there is no disclosure of a gradual release of pressure which can be achieved by a metering valve or flow control valve, and secondly because the one feature of reducing the gas pressure from 400 psi to 200 psi over the return movement of the hydraulic piston cannot be seen as disclosing both features D and E in the amended claim.
I am not convinced by the opponents’ arguments relating to novelty and construing the British patent in the light of the common general knowledge: the “trifling variation” line of argument seems to be more relevant to obviousness, and there does not seem to be any direct “mechanical equivalent” in the citation to compare to feature E in the present claim. The opponents’ written submissions suggest that the hydraulic piston may be considered as a mechanical equivalent to the metering valve, but I note that this suggestion is not supported by its evidence. Furthermore, I think the metering valve operates in a different manner in a different part of the apparatus, and it would be an integer used in addition to, not instead of, the hydraulic piston; prima facie, the apparatus would not work without the piston.
Obviousness
The evidence establishes that the CINPRES process was common general knowledge, the problems associated with the known process were well known and the general solution of gradually reducing the pressure also was well known, but various specific solutions had been tried. Mr Eckardt for example discusses some specific solutions such as:
holding the product in the mould cavity for a longer period of time,
slowly retracting the injection nozzle to restrict the venting orifice,
restricting the diameter of the sprue or the injection gate, or
allowing the pressure to vent through the air passages and valves of the injection gas line.
The evidence also establishes that metering valves were generally known in the art. I am somewhat sympathetic to the opponents’ submissions on obviousness because the specification and evidence does not give a lot of detail on how metering valves are used or selected, and this suggests that there may not have been too many difficulties to be overcome in adapting the known devices to the known process. On the other hand though, the number of prior specific solutions to the problem suggests that maybe none were completely satisfactory. Also, I have evidence before me that there are some advantages associated with controlling the rate of venting by means of a metering valve or other flow control valve; viz. Mr Baxi’s comments under cross-examination on pages 30,31,35,36 and 37 of the transcript of the trial in the US, in the evidence-in-answer, and Mr Hendry’s comments in the further evidence.
I note also that the present invention operates in a different pressure range (2,000 psi lowered to 1,000 psi) to the prior art (400 psi lowered to 200 psi). This is not a major point, but it may suggest that some of the problems encountered by the applicant were somewhat different to those overcome in the prior art apparatus.
The opponents’ submissions suggest that the supposed advantages of the present invention are merely associated with “controlling the rate of venting” per se, and are not due to the use of a metering valve or flow control valve, and thus there is no invention in the use of the metering valve or flow control valve. I do not agree with the opponents’ interpretation of the specification and evidence in this matter; to me, even though it is not always stated specifically, it is generally clear from the specification and evidence that the advantages of the invention are associated with the use of a metering valve or flow control valve to control the rate of venting.
Taking all the relevant matters into account, I think the probative value of the opponents’ evidence relating to obviousness is no greater than that of the applicant’s evidence, so I think it is appropriate that I resolve the matter in favour of the applicant.
REG. 5.11 MATTERS
On 30 January 1998 the opponents’ attorneys filed a copy of patent Specification JP 54-123173A (Published 15 September 1979) and translation thereof, and they requested that the Commissioner’s delegate consider this specification before sealing. I considered this specification with a mind to invoking the provisions of Regulation 5.11, whilst dealing with the opposition, and decided that the claims of the present application are novel in the light of this patent specification. Because the document is not relevant it is therefore not necessary for me to invoke R. 5.11. My reasons for deciding that the cited document does not provide the basis of a novelty objection are as follows:
This document is concerned with providing a control means for controlling the injection of gas into molten resin during an injection moulding process. The features of claim 1 of 616913 which are not clearly disclosed in JP 54-123173 are:
first gas pressure at least as high as the plastics pressure.
JP 54-123 173 does not state whether the pressure of the gas is higher or lower than the plastics pressure. However it does state that the conditions under which the fluid is introduced is important (page 5 lines 16-23). Also, it may not be obvious that the gas pressure is at least as high as the plastics pressure.
immediately after the molten plastic has passed the position at which the gas is introduced.
JP 54-123173 discloses injecting the resin "and then, or at the same time" a fluid is introduced. The description of the drawings in JP 54-123173 seems to describe a process where the injection of the gas is after the injection of the resin (page 8 lines 11-17).
reducing the first gas pressure to a second predetermined pressure and maintaining the second pressure as the plastics material cools beneath its softening point.
JP 54123173 does not disclose this feature. Figures 6 and 7 show the pressures within the pressure vessels during the moulding process. These graphs show a relatively small decrease in pressure as the gas is injected into the resin (section c-d). This is followed bv a relatively large reduction in pressure as the gas is recovered (d‑e) There is no mention of maintaining a second, lower pressure as the plastics cool to beneath the softening point.
controlling the rate of venting.
At page 9 lines 22-34 of JP 54-123173 there is a disclosure of a variable constriction valve C-1 for releasing the gas to the atmosphere. This is compared with the standard pressure profile (Figure 5) and hence it would appear to be a disclosure of monitoring the rate of venting rather than controlling the rate of venting (it is not clear what would happen if the venting rate was too slow or too fast - perhaps an alarm would be activated - see page 9 lines 19-2 1).
CONCLUSION
I have found that the opposition to the specification in its form as amended on 19 June 1997, is not successful because the invention defined by the claims is novel, not obvious and there are no S.40 objections to the specification. I direct therefore that the application and complete specification proceed to sealing.
COSTS
Both parties made submissions on costs. In this case I see no reason why I should not follow the usual practice of costs following the event, so I award costs associated with the second hearing on the substantive opposition against the opponents Battenfeld Australia Pty Ltd and Battenfeld GmbH.
The opponents submitted that I should reconsider my decision on costs relating to the hearing and decision on the matter of the further evidence. In my decision dated 13 June 1996 I indicated that the parties should bear their own costs. The opponents suggest that this decision should be reconsidered because:
“... the nature of the applicant’s further evidence has only now been considered in sufficient detail to determine if it should have been allowed”
“... this evidence is of very little probative value and can be of no assistance in these proceedings.” and therefore
“... the applicant should not have been given the opportunity to lodge the Hendry declaration as further evidence.”
After some deliberation on this matter I think it is appropriate that I do not change my earlier decision on costs mainly because Mr Hendry’s declaration was of some use in interpreting the nature of the present invention in the light of the cited prior art. See my abovementioned comments on obviousness for example.
John Welsh
Delegate of the Commissioner of Patents
Patent attorneys for the applicant: Spruson & Ferguson, Sydney
Patent attorneys for the opponents: Madderns, Adelaide
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