Michael Gordon Matthews v Anthony Mark Ingman
[2000] APO 46
•21 July 2000
OFFICIAL NOTICE
DECISION OF A DELEGATE OF THE COMMISSIONER OF PATENTS
Application : No. 700747 in the name of Michael Gordon MATTHEWS
Title: Intramedullary Nail
Action: Opposition under section 59 of the Patents Act 1990 by Anthony Mark INGMAN
Decision: Issued .
Abstract
The evidence in support of the opposition was considered despite not being in declaratory form.
The opposition is unsuccessful as the opponent has not established that the claims lack novelty or inventive step.
None of the documents relating to the “Humeral Nail” filed by the opponent disclose all the essential features of the claimed invention. Therefore the claims are novel over each of the documents in this group of disclosures. The opponent has also failed to establish that the claims are obvious in the light of the information contained in any of the humeral nail disclosures.
There is no evidence that the Austofix brochure “Supracondylar Nails” or any of the related documents were publicly available before the priority date of the claims. Similarly, there is no evidence of any public use of the supracondylar nails before the priority date of the claims. The claims are novel and inventive over the group of documents relating to the supracondylar nails.
Costs awarded against the opponent.
PATENTS ACT 1990
DECISION OF A DELEGATE OF THE COMMISSIONER OF PATENTS
Re:Patent Application No. 700747 by Michael Gordon MATTHEWS; and an opposition under section 59 of the Patents Act 1990 by Anthony Mark INGMAN
BACKGROUND
Michael Gordon Matthews (“the applicant”) filed patent application 700747 (26786/95) on 9 June 1995. The application was filed under the provisions of the Patent Co-operation Treaty and claims priority from GB 9411693.6 filed on 10 June 1994.
Anthony Mark Ingman (“the opponent”) filed an opposition to the grant of a patent on the application. Dr Ingman appears to be a Technical Director of Austofix Australian Orthopaedic Fixations Pty Ltd. Although most correspondence filed by Dr Ingman is on Austofix letterhead, he filed the notice of opposition in his own name.
A hearing on the opposition was set for 30 March 2000. Both parties filed written submissions rather than attending a hearing. Ken Bolton of Baldwin Shelston Waters filed written submissions on 2 March 2000 on behalf of the applicant. The opponent filed written submissions on 27 March 2000 on his own behalf.
THE SPECIFICATION
The specification is titled “Intramedullary Nail”. Page 1 states that the invention relates to surgical intramedullary nails for stabilising condylar and supracondylar fractures, particularly of the distal femur or humerus. The specification states that the use of “nails” inserted into the intramedullary cavity of long bones in order to stabilise fractures is well established in orthopaedic and veterinary practice. Fractures in the middle third of a long bone may be effectively stabilised with a simple intramedullary nail. The effectiveness of this method may be increased by the use of cross bolts or screws passing through pre-drilled holes in the nail, so as to achieve better hold on the proximal and distal bone fragments. Nails with cross bolts have become known as “locking” or “locked” nails. These nails have broadened the use of the method to fractures extending well into the proximal or distal ends. The insertion of the cross bolts or screws may be facilitated by the use of a guide jig which attaches temporarily to the end of the intramedullary nail, but this is not invariable and many systems require at least some of the cross bolts to be inserted freehand. In cases where the fracture is in the vicinity of the condylar region of the femur or humerus, difficulties may be encountered in stabilising the distal condylar fragments in relation to the shaft of the bone. The specification states that it is an object of the invention to overcome or ameliorate at least one of the disadvantages of the prior art, or to provide a useful alternative.
The specification ends with 10 claims. The independent claims are as follows:
1. A surgical intramedullary nail for stabilising fractures of the condylar region of the femur or humerus which comprises a rod or tube adapted for insertion into the distal end of the femur or humerus, and distal locking bolts for insertion into holes in the nail, said nail having first and second distal locking holes which are so positioned and angled in a staggered/crossed position with respect to the nail and to each other that, in use, when the bolts are inserted into respective distal holes, they extend into and grip respective condyles, thus stabilising both condyles in relation to the shaft of the femur or humerus.
5. A jig for facilitating the insertion of a surgical nail as claimed in any one of the preceding claims, which comprises a frame having arms in use extend on each side of a patient’s knee, said frame including means for attachment to the distal end of the nail and in a predetermined angular relationship therewith and the arms having guide means for guiding the introduction of distal locking bolts into preformed distal holes so that said bolts take up the required staggered/crossed relationship with the nail.
7. A method of surgically stabilising a condylar or supracondylar fracture which comprises introducing an intramedullary nail into the femur or humerus through the intercondylar groove, and inserting distal locking bolts into holes in the nail which are so positioned and angled in a staggered/crossed position with respect to the nail and to each other that they extend into and grip respective condyles, thus stabilising both condyles in relation to the shaft of the femur or the humerus.
There are also three omnibus claims, one directed to each of the above aspects of the invention.
THE OPPOSITION AND EVIDENCE
Anthony Ingman filed a letter with the Patent Office on 23 March 1999 saying that he wished to oppose the application on the basis of the prior art. The letter was accompanied by a number of documents. A Deputy Commissioner of Patents advised Dr Ingman that he would need to file a notice of opposition and the accompanying fee by 14 April 1999. Dr Ingman subsequently filed the notice of opposition on 9 April 1999. The applicant notified the Patent Office that he had been served with a copy of the notice on 12 April 1999.
The Statement of Grounds of Opposition was filed together with the notice of opposition. The statement set out the grounds in the following terms:
“The grounds and particulars of my opposition are as follows:-
The design is not new, as previous work of mine has placed it in the public arena.
I began using the same general principle of crossed screws in the proximal humerus, in 1992. At that time I also considered using it in the condylar region of the femur, and the first such intramedullary nail of that design was implanted in a patient on 5th September, 1994.
Abstracts of relevant research papers are published in ‘The Journal of Bone and Joint Surgery’, [BR] 1994;76B SUPP II & III p.119, and 1996;78-B SUPP II & III, p.131.”
A copy of the first of the abstracts from the Journal of Bone and Joint Surgery referred to in the last paragraph of the particulars was also attached.
There appears to have been some correspondence between the Patent Office and the parties in July and August of 1999 regarding the evidence in support. The Patent Office subsequently advised the parties by letters dated 10 August 1999 that the documents filed on 23 March 1999 have been inserted as the evidence in support. The parties were also advised that the applicant’s evidence in answer was due to be served by 10 November 1999. The applicant did not serve any evidence in answer.
In his letter filed on 23 March 1999, the opponent states:
“I wish to oppose this application on the basis of Prior Art. A patent was not sought, and the concept was placed in the public domain more than four years ago. It has been commercially developed by Australian Orthopaedic Fixations Pty Ltd (trading as “Austofix”).
I began using angled, crossed screws in this way in 1992, in the proximal humerus. The same device can be used in the distal humerus but this has not proved necessary, as a single postero-anterior screw has been adequate for supracondylar fractures.
I began using the same principle in the condylar region of the femur in 1994, and had operated on seven patients by March 1995. Now more than 100 patients have been treated in this way, including many with intercondylar fractures. All operations can be verified by hospital records.
I presented a research paper titled “Intramedullary Fixation of Supracondylar Femoral Fractures” to the Australian Orthopaedic Association Annual Scientific Meeting in Melbourne, 1995, and was awarded a prize for best scientific paper. Proceedings of this meeting were reported in the Journal of Bone and Joint Surgery in 1996.
The device incorporating the design (“Austofix Supracondylar Nail”) has been available throughout Australia on a commercial basis since 1996. The design has been commercially displayed at two national Australian Orthopaedic Association Annual Scientific Meetings (Canberra 1997, Cairns 1998). It has been actively marketed for the last eighteen months in all major cities in Australia. Recently, it has been used in China. The design has also been circulated among at least two major European orthopaedic device companies during the course of commercial discussions. It will be displayed at the international SICOT meeting in Sydney, 19th-23rd April 1999.”
The documents filed by the opponent with his letter of 23 March 1999 are as follows:
Pages 113 and 131, Journal of Bone and Joint Surgery [BR] 1996;78-B:SUPP II & III
A document titled “Research and Development of the Ingman Humeral Nail”.
Austofix brochure: “Supracondylar Nails”
Austofix brochure: “Humeral Nail”.
DECISION
The Statement of Grounds and Particulars does not specify which particular grounds of opposition under section 59 that the opponent relies on. The applicant made the following submissions on this point:
“The Statement of Grounds states that “the design is not new” and we therefore assume that the sole ground of opposition is under Section 59(b) in that the invention does not comply with Section 18(1)(b)(i) – the invention, when compared with the prior art base as it existed before the priority date is, not novel. There is no assertion that any of the claims lack inventive step or fail to constitute a manner of manufacture. Furthermore, there have been no allegations raised in relation to fair basis, clarity or sufficiency of the description.”
I note that the Statement of Grounds and Particulars does not clearly identify inventive step as a ground of opposition to the application. However, inventive step appears to have been given considerable emphasis in the opponent’s submissions dated 22 March 2000. The opponent also referred to the “concept” of the invention in his letter of 19 March 1999. The applicant did not comment on inventive step in their written submissions dated 2 March 2000, other than to say “(t)here is no assertion that any of the claims lack inventive step”.
The applicant has equated the term “new” in the statement of grounds and particulars with novelty. The term “new” was considered in the High Court decision of NV Philips Gloeilampenfabrieken v Mirabella International Pty Ltd, 32 IPR 449, albeit in a different context altogether to the present case. As pointed out in the minority judgement in that case, the word “new” has not always been used uniformly. In fact, the majority judgement in Philips v Mirabella appeared to relate the word “new” to the qualities of novelty and inventiveness.
I have considered the opponent’s submissions on inventive step in my decision. However, I note that the statement of grounds and particulars is somewhat vague and the applicant has not argued this case. If I were to find adversely on the ground of inventive step, it would have been appropriate to give the applicant an opportunity to make submissions before issuing my decision, in the interest of natural justice.
Form of Evidence
The applicant submitted that “while we have commented on the material supplied by the Opponent, we do not accept that it constitutes evidence at all as it is not in declaratory form. It follows therefore, that the opposition fails for lack of any Evidence-in-Support, and the application is entitled to proceed to grant.”
Regulation 22.12 of the Patent Regulations requires that if evidence is given in writing to the Commissioner, the evidence must be in the form of a declaration. In the present case a number of documents have been filed as evidence in support of the opposition. The documents were filed as attachments to either the letter from Dr Ingman of 23 March 1999 or to the Statement of Grounds and Particulars.
It is not in the public interest to grant patents that may be invalid, particularly where material has been placed before the Commissioner that may be of relevance in determining the validity of the claims. Deane J., sitting in the Federal Court of Australia, issued a judgement including the following paragraph (Minister for Immigration and Ethnic Affairs v. Pochi 31 ALR 666):
"These technical rules of evidence, however, form no part of the rules of natural justice. The requirement that a person exercising quasi-judicial functions must base his decision on evidence means no more than it must be based upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant. It means that he must not spin a coin or consult an astrologer, but he may take into account any material, which as a matter of reason, has some probative value in the sense mentioned above. If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue."
The documentary evidence filed in the present opposition is not such that it requires written evidence to support it. Neither the invention nor the information in the documents filed in support of the opposition is technically complex. In the circumstances of this opposition, the documents filed in evidence in support provide sufficient basis for me to proceed with my decision on the matter. In relation to the letters filed by the opponent referring to the documents, I have weighted these as submissions from the opponent.
Notwithstanding the above, it is well established in Patent law that the onus on establishing that the claims are invalid rests with the opponent. Evidence in the form of a declaration will generally carry more weight than submissions in a letter. Similarly, matters such as the publication date of certain documents, the dates of any public use of an invention, or the state of the common general knowledge in the art are usually best established in the form of a declaration. The burden of proof in establishing that the invention was known before the priority date of the claims rests with the opponent.
Further Evidence
The opponent also enclosed two pages together with his letter dated 22 March 2000. These appear to be copies of hand drawings and notes by Dr Ingman. The opponent submitted that this documentation merely provides clarification of the evidence already lodged in this matter. The opponent further submitted that:
“… if the Patent Office considers that the documentation goes beyond the evidence presently allowable with respect to this opposition, I request leave to lodge this documentation as further evidence. I believe it is in the public interest, and would also be a matter of natural justice, to admit the documentation as evidence in this opposition. Being unfamiliar with opposition proceedings I was unaware, until receipt of the applicant’s submissions, of the necessity or desirability of providing such documentary evidence relating to my use of supracondylar nails. Accordingly, I believe that my opposition to the patent application would unfairly prejudiced (sic) if this documentation was deemed inadmissible.”
The evidence filed with the letter dated 22 March 2000 is clearly further evidence. However, after viewing the evidence I do not believe the applicant would be unduly prejudiced if I took this evidence into account. To expedite the matter, I have considered these further documents in my decision.
Priority Date of the claims
The opposed application was filed on 9 June 1995 and claims an earliest priority date of 10 June 1994 based on GB 9411693.6. The opponent has not contested this priority date. I have viewed the priority document and in the absence of any submissions or evidence to the contrary I am satisfied the opposed application is entitled to a priority date of 10 June 1994. Therefore, to succeed in his opposition to the application, the opponent must show that the invention was known before this date. Any public use or disclosure of the invention after 10 June 1994 is not relevant to the validity of the claims of the application.
Novelty
The test for determining whether an invention lacks novelty is the " reverse infringement test" as stated by Aiken J in Meyers Taylor Pty Ltd v Vicarr Industries Ltd, (1977) CLR 228 at 235:
"The basic test for anticipation or want of novelty is the same as that for infringement and generally one can properly ask oneself whether the alleged anticipation would, if the patent were valid, constitute an infringement."
Infringement of a claim occurs where "each and every one of the essential integers" of that claim have been taken, Rodi and Wienenberger AG v Henry Showell Ltd, (1969) RPC 367 at 391.
A more recent statement in relation to novelty is given in Nicaro Holdings Pty Ltd v Martin Engineering Co (1990) 91 ALR 513 at 517:
"It is well accepted that the prior art must disclose all features of the invention embodied in the patent in suit and must do so in clear, unequivocal and unmistakable terms. The prior art must enable the notionally skilled addressee at once to perceive and understand and be able practically to apply the discovery without the necessity of making further experiments. What ever is essential to the invention must be read out of or gleaned from the prior publications".
In assessing the teaching or disclosure of the prior art, one has to consider what the skilled addressee is being taught and what they would have done on reading the citation, General Tire & Rubber Co v Firestone Tyre & Rubber Co Ltd, (1972) RPC 457 at 485, 486:
"To anticipate the patentees claim, the prior publication must contain clear and unmistakable directions to do what the patentee claims to have invented ... A signpost, however clear, upon the road to the patentee's invention will not suffice."
Similarly, a prior disclosure will only invalidate a claim if, after having read it, the skilled addressee would, rather than could, have produced all the essential integers of the claim. See also the following passage from C. Van Der Lely N. V. v Bamfords Ltd (1963) RPC 61:
"If … the prior publication contains a direction which is capable of being carried out in a manner which would infringe the patentee's claim, but would at least be as likely to be carried out in a way that would not do so, the patentee's claim will not be anticipated."
The documents filed by Dr Ingman appear to be directed to two levels of disclosure. The first relates to the device shown in the Austofix brochure “Humeral Nail” and related documents. The second relates to the Austofix brochure “Supracondylar Nails” and related documents. I will deal with each group of documents in turn. I note here that there is no evidence that either of the Austofix brochures were filed before the priority date of the claims.
Humeral Nail Disclosures
Dr Ingman states in the statement of grounds and particulars that he “began using the same general principle of crossed screws in the proximal humerus, in 1992”. In his letter filed 23 March 1999 he states that he “began using angled, crossed screws in this way in 1992, in the proximal humerus. The same device can be used in the distal humerus but this has not proved necessary, as a single postero-anterior screw has been adequate for supracondylar fractures.” In his submissions dated 22 March 2000, Dr Ingman states that “Angled, crossed screws in the proximal humerus were first used in a patient on 15th September 1992, and ten such operations had been carried out by 16th May 1994. Most of these were performed at the Royal Adelaide Hospital but some were at private hospitals.” Dr Ingman enclosed a copy of a hand drawing titled “Nail for Upper Humeral Fractures” dated 18-10-92 with his written submissions. Dr Ingman has also filed an abstract titled “A New Locked Nail for Proximal Humeral Fractures” A.M. Ingman, Royal Adelaide Hospital, Adelaide, J Bone Joint Surg [BR] 1994,76-B:SUPP II & III. There is no declaratory evidence that the information in the abstract was publicly available before the priority date of 10 June 1994, though Dr Ingman says in his submissions that the abstract is a report of the Annual Scientific Meeting of the Australian Orthopaedic Association in 1993, which was an open meeting attended by several hundred Orthopaedic Surgeons. Dr Ingman also filed the Austofix brochure “Humeral Nail”. However there is no date on the brochure and no evidence as to when the brochure was published.
Dr Ingman’s submissions relating to his use of crossed screws in 1992 and the subsequent publication of the same in the Journal of Bone and Joint Surgery in 1994 all relate to the proximal humerus. Dr Ingman acknowledges that this represents use of angled crossed screws in a different area. It is a requirement of the claims that the nail is for stabilising fractures of the condylar region of the femur or humerus and the nail comprises a rod or tube adapted for insertion into the distal end of the femur or humerus. There is no evidence that the device described by Dr Ingman in relation to the proximal humerus could be used in the condylar region or that it is adapted for insertion into the distal end of the femur or humerus. While Dr Ingman suggests the same device can be used in the distal humerus, there is no evidence to support this suggestion. In fact, Dr Ingman’s comment in his letter of 23 March 1999 that “this has not proved necessary, as a single postero-anterior screw has been adequate for supracondylar fractures” tends to suggest that such a device was not considered useful in supracondylar fractures before the priority date of the claims.
In my view, none of the documents relating to the humeral nail form a disclosure of the invention as claimed. In particular, none of these documents disclose a surgical intramedullary nail for stabilising fractures of the condylar region of the femur or humerus which comprises a rod or tube adapted for insertion into the distal end of the femur or humerus, wherein in use, bolts extend into and grip respective condyles, thus stabilising both condyles in relation to the shaft of the femur or humerus. Therefore the claims are novel over each of the documents in this group of disclosures.
Supracondylar Nails Disclosures
Dr Ingman states that he began using the same principle in the condylar region of the femur in 1994. He says that the first such intramedullary nail of that design was implanted in a patient on 5th September 1994. This is after the priority date of 10 June 1994. Dr Ingman states that he presented a paper titled “Intramedullary Fixation of Supracondylar Femoral Fractures” to the Australian Orthopaedic Association Annual Scientific Meeting in Melbourne in 1995. Proceedings of this meeting were reported in the Journal of Bone and Joint Surgery in 1996. Dr Ingman provided pages of the Journal indicating the proceedings were held in Melbourne on 15-20 October 1995 and also including an abstract of his paper. These dates are all after the priority date of the claims. Dr Ingman also filed the Austofix brochure “Supracondylar nails” which disclose nails for very distal femoral fractures, fractures below hip implants, and supracondylar fractures associated with most knee replacements. However there is no date on the brochure and no evidence has been filed to establish that the brochure was published before the priority date of the claims.
Dr Ingman states that he has provided evidence of his use of the principle of locking bolts through angled holes in a staggered/crossed position in intramedullary nails in the condylar (distal) region at least from September 1994. He submits that at this point in time his design was sufficiently advanced to proceed to clinical trials and a minimum of several months would be required to evolve to this stage. He submits that it can be inferred, based on normal development times for orthopaedic equipment, that he was at least producing, if not actually using, the implants described in the “Supracondylar Nails” brochure before the priority date of the claims.
However, the onus of establishing that the supracondylar nails shown in the brochure were publicly used or produced before the priority date of the claims rests with the opponent. If the nails were produced before the priority date of the claims, it is up to the opponent to file evidence establishing this fact. Dr Ingman states that the only documentary evidence of this specific period is a note in his handwriting of a cadaver test on 18 July 1994, which is after the priority date. A copy of this note was filed with the opponent’s submissions dated 22 March 2000.
The device shown in the Austofix brochure “Supracondylar Nails” appears to fall within the scope of claim 1. However there is no evidence that the brochure or any of the related documents were publicly available before the priority date of the claims. Similarly, there is no evidence of any public use of the supracondylar nails before the priority date of the claims. Accordingly, the claims are novel over the group of documents relating to the supracondylar nails.
Inventive Step
The requirements for inventive step are set out in section 7 of the Patents Act 1990 as follows:
(2) For the purposes of this Act, an invention is to be taken to involve an inventive step when compared with the prior art base unless the invention would have been obvious to a person skilled in the relevant art in the light of the common general knowledge as it existed in the patent area before the priority date of the relevant claim, whether that knowledge is considered separately or together with either of the kinds of information mentioned in subsection (3), each of which must be considered separately.
(3) For the purposes of subsection (2), the kinds of information are:
(a) prior art information made publicly available in a single document or through doing a single act; and
(b) prior art information made publicly available in 2 or more related documents, or through doing 2 or more related acts, if the relationship between the documents or acts is such that a person skilled in the relevant art in the patent area would treat them as a single source of that information;
being information that the skilled person mentioned in subsection (2) could, before the priority date of the relevant claim, be reasonably expected to have ascertained, understood and regarded as relevant to work in the relevant art in the patent area.
As I have stated above, there is no evidence that the information in the Austofix brochure “Supracondylar Nails” or any of the related documents were made publicly available before the priority date of the claims. Therefore this information is not relevant to a determination of the inventiveness of the claims.
In relation to the information pertaining to the Humeral Nail, it is not clear when the information in the documents was first made publicly available. However, on the face of it, it appears that the information was made public at least as early as the Annual Scientific Meeting of the Australian Orthopaedic Association in 1993.
Dr Ingman submits that he has used angled screws in a staggered/crossed position from as early as 1992, although this was at the other end of the humerus. He submits that it is obvious that this principle could be extended to other bones and parts thereof. Dr Ingman submits that the reference in claim 1 to distal holes allowing bolts to “extend into and grip respective condyles” is an obvious extension of the same concept.
There is no evidence as to what the common general knowledge in the art was before the priority date of the claims. Similarly, there is insufficient evidence to establish that the person skilled in the art would consider the humeral nail to be useful for supracondylar fractures. Dr Ingman says that “the same device can be used in the distal humerus but this has not proved necessary, as a single postero-anterior screw has been adequate for supracondylar fractures.” This seems to suggest (though is not conclusive) that the common general knowledge before the priority date of the claims was to use a single postero-anterior screw for supracondylar fractures and that such a screw was considered adequate for that purpose.
The opponent has not established that it would have been obvious to a person skilled in the art to adapt the humeral nail for use in supracondylar fractures without the exercise of any ingenuity. The claims are therefore inventive 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 contained in any of the humeral nail disclosures.
CONCLUSION
The opponent has not established that the claims lack novelty or inventive step.
None of the documents relating to the humeral nail filed by the opponent disclose all the features of the claimed invention. Therefore the claims are novel over each of the documents in this group of disclosures.
The opponent has also failed to establish that the claims are obvious 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 contained in any of the humeral nail disclosures.
There is no evidence that the Austofix brochure “Supracondylar Nails” or any of the related documents were publicly available before the priority date of the claims. Similarly, there is no evidence of any public use of the supracondylar nails before the priority date of the claims. The claims are novel and inventive over the group of documents relating to the supracondylar nails.
I find the opposition has failed. Accordingly I direct the application be sealed after 30 days from the date of this decision. If the Commissioner has been served with a notice of appeal before that time, I direct that sealing not occur until the appeal has been decided or discontinued.
COSTS
The applicant submitted that costs should run with the decision. The opponent submitted that if his opposition is successful, then costs should be awarded in his favour. In the case of an adverse decision, the opponent submitted “that each party bear their own costs in this matter or, at worst, that the costs to be awarded in favour of the applicant be their actual costs, if less than the scheduled costs, bearing in mind that the applicant’s costs should have been considerably less with respect to most opposition proceedings, due to the limited amount of evidence to be considered.”
It is the normal practice of the Patent Office for costs to follow the event. I do not see any circumstances in the current opposition to persuade me to vary from this practice. In relation to the scheduled costs, the schedule takes into account the stages of evidence filed. For example, in this case no evidence in answer or evidence in reply has been filed. Therefore the scheduled costs in relation to preparing and/or considering evidence in answer or in reply are not applicable in the current opposition.
I therefore award costs against the opponent, Anthony Mark Ingman, in accordance with schedule 8 of the Patent Regulations.
Brendan Bourke
Delegate of the Commissioner of Patents
Patent attorneys for the applicant : Baldwin Shelston Waters
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