Myoori Pty Limited.
[2016] APO 80
•11 November 2016
IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Myoori Pty Limited. [2016] APO 80
Patent Application: 2016201570
Title:Wine Label
Patent Applicant: Myoori Pty Limited
Delegate: Dr W.E. Guinea
Decision Date: 11 November 2016
Hearing Date: 22 September 2016, in Canberra
Catchwords: PATENTS – standard patent – Examiner objections – invention comprises a wine label characterised by certain patterns and colours – manner of manufacture – inventive step – claims are not for a manner of manufacture – inventive step not considered – application refused
Representation: Patent Attorney for the Applicant: F.P. Old of Fraser Old & Sohn
IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Patent Application: 2016201570
Title:Wine Label
Patent Applicant: Myoori Pty Limited
Date of Decision: 11 November 2016
DECISION
None of the claims are for a manner of manufacture. There is no material within the application that would lead to a manner of manufacture if made the subject of a claim. The application is refused.
REASONS FOR DECISION
Background
Patent application 2016201570 (“the application”) was filed on 10 March 2016, being a divisional application of 2011308075 (“the parent application”). Consequently the earliest priority date of the application is 27 September 2010.
To assist in understanding the context of the present matter, it is helpful to first consider the background of the parent application.
The parent application was filed on 23 September 2011, and examination was requested on 5 April 2013. The first examination report for the parent application issued on the 26 August 2014. Consequently the final date to gain acceptance was 26 May 2016, given that examination proceeded before the application of the substantive changes brought about to the Patents Act 1990 (Cwlth) (the “Act”) by the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 (Cwlth) ( the “Raising the Bar Act”).
A total of six examination reports issued with respect to the parent application, with the final report issuing on 10 February 2016. All of these reports asserted that the claims were not for a manner of manufacture, while all but the first report alleged that the claims were lacking an inventive step.
The sixth report indicated that a hearing would be set in relation to the Examiner’s objections, and a notice to this effect issued on 15 February 2016. Myoori Pty Limited (“the Applicant”) responded on 17 February 2016 indicating that they felt it was necessary to furnish evidence from a skilled addressee for the purposes of the hearing. Due to the time required to prepare this evidence the Applicant indicated that rather than having a hearing on the parent application they would file a divisional application (the application), such that a hearing could take place on the divisional application if necessary.
Subsequent to filing the application, the Applicant requested examination on 29 April 2016, and the first (and only) examination report issued on 13 July 2016. As a consequence, substantive amendments brought about by the Raising the Bar Act apply to the application. The only objections raised during examination were that the claims were not for a manner of manufacture and lacked an inventive step in view of the common general knowledge (“CGK”).
The first examination report also indicated that the Commissioner had decided to set a hearing in relation to the Examiner’s objections, and a notice to that effect issued on 18 July 2016.
The Applicant filed a summary of written submissions (the “written submissions”) and declaratory evidence in relation to the hearing on 11 August 2016. This comprised a statutory declaration by Justin Utteridge dated 2 August 2016 (“Utteridge”) and a statutory declaration by Denis Gastin dated 11 August 2016 (“Gastin”).
A hearing in relation to this matter occurred in Canberra on 22 September 2016, where the Applicant was represented by Mr F.P. Old.
The Invention as Described
10. The application concerns labels attached to food or beverage bottles or containers that are typically displayed in a retail environment. In particular the application discusses issues with regard to labels used for wine bottles, it being indicated that presently available labels do not stand out “…from the bewildering crowd formed from the bottles arranged for sale in a bottle shop” (the application at page 2, lines 5 to 6). The application then goes on to state that “The genesis of the present invention is a desire to enhance the self selecting properties of a bottle of wine by providing it with a label designed to increase the visual attractiveness of the bottle compared with wine bottles having conventional labels” (at page 2, lines 10 to 13).
11. The application provides a solution to the above issues in the form of certain designs incorporated in a wine label, which is also applicable to food or beverage container labels more generally. These can be generally characterised as “target” or “bullseye” type designs characterised by the use of contrasting colours. The nature of these designs is best understood with reference to figure 1 which is reproduced below, and which also represents the first embodiment of the invention.
12. Figure 1 illustrates a wine bottle 1 (in this case for white wine) comprising a rectangular label 4. The label comprises an outer rectangular path 6, an inner rectangular path 7 and a central rectangular zone 8. As perhaps can be gleaned from the shading of the various zones of the label, the outer rectangular path and the central rectangular zone are generally of a dark colour, while the inner rectangular path is generally a light colour.
13. The remaining figures illustrate a variety of different embodiments, these encompassing labels for red wine bottles and sparkling wine bottles. Also illustrated are several alternative shape designs to the rectangular elements or zones of figure 1, these being trapeizoidal, circus maximus, part semi-circular and part rectangular and diamond. Several designs are also offset in nature in that the design elements are not placed symmetrically within the label or are offset with respect to each other, and some comprise contrasting colours within a design element or zone. Some embodiments also refer to the placement and colouration of text on the label (for example indicating the vintage of the wine) as well as the possibility of using certain colour schemes to indicate certain wine varieties. All of these embodiments make use of the generally contrasting zones or paths as illustrated in figure 1.
14. The application states at page 6, lines 1 to 13, that (with respect to the labels of the invention):
“It will be apparent from the foregoing that the bottle 1 provided with such a label 4, 14, 24, 34, 44, 54, 64, or 74 once placed on the shelves of a bottle shop or wine cellar for display to the purchasing public will, because of the geometric properties of the paths 6 and 7 and the central zone 8, (or the paths 6, 7, 18 and zone 19) immediately attract the attention of intending purchasers and thereby assist in self selection of the bottle by the intending purchasers. These geometric properties have a mechanical purpose which gives rise to an optical effect which makes the label 14, 24, 34, 44,54, 64 or 74 (and hence the bottle carrying the label) visually arresting.
The wine labelling system according to preferred embodiments thereof unexpectedly and advantageously provides a contrast with other adjacent labelled wine bottles so as to increase the likelihood of receiving the conscious attention of the retail consumer.”
The Claims
15. The application ends with 10 claims. These are reproduced below, with claim 1 being the only independent claim.
“1. A vendible product comprising a labelled bottle or jar, said bottle or jar having a longitudinal container axis, said label being elongate and having both a longitudinal label axis and a width transverse to said axis, said label having at least two closed and adjacent loops each of which comprise a track of substantially uniform width, said loops surrounding an elongate central area substantially aligned with said label axis, said tracks having substantially similar widths, said central area having a width which is similar to a track width, said tracks and said central area substantially filling the entire label, said tracks and central area being of alternating colour impression, and one of the colours of said alternating colour impression contrasting with the colour of said bottle or jar adjacent said label, and if said bottle or jar is substantially transparent, contrasting with the colour of said bottle or jar when full adjacent said label.
2. The product as claimed in claim 1 wherein said label axis is aligned with said container axis.
3. The product as claimed in claim 1 wherein said label axis is transverse to said container axis.
4. The product as claimed in any one of claims 1 -3 wherein said tracks are substantially concentric.
5. The product as claimed in any one of claims 1 -3 wherein said tracks are not substantially concentric.
6. The product as claimed in any one of claims 1-5 wherein the shape of said tracks and central area are selected from the group consisting of a rectangular bulls-eye, a trapezoid bulls-eye, a diamond bulls-eye, and a curcus bulls-eye.
7. The product as claimed in any one of claims 1, 2 and 4 -6 and comprising a wine bottle.
8. The product as claimed in claim 3 and comprising a jar.
9. The product as claimed in any one of claims 1-8 wherein the label is adhered to the bottle or jar.
10. The product as claimed in any one of claims 1-8 wherein the label is formed by printing onto the bottle or jar.”
16. As can be seen, the claims all embody the use of “target” or “bullseye” type patterns characterised by contrasting or alternating colour schemes.
The Nature of the Remaining Objections
17. As noted the only objections outstanding are that the claims are not for a manner of manufacture and that the claims lack inventive step. I will briefly outline the nature of these objections below.
18. The objection that the claims are not for a manner of manufacture has been generally consistent throughout examination on the application and the parent application. The Examiner has consistently objected to the claims on the basis that they are concerned with the purely visual or aesthetic aspect of the label, and has at times suggested that the claims fall within the category of presentation of information. The nature of the Examiner’s objection is best illustrated by objection 1 from the first examination report on the application:
“Claims 1-10 do not define a manner of manufacture within the meaning of Section 18(1)(a) of the Patents Act 1990. From reading your application as a whole the substance of the alleged invention falls within the category of 'presentation of information', concerned merely with the visual contents of the label, characterised solely by the aesthetic aspect by virtue of some specific shapes and colours. This is not patentable subject matter.
Although the claims involve the use of a bottle or a jar, this does not change the substance of the alleged invention. Consequently, as per Research Affiliates LLC v Commissioner of Patents [2014] FCAFC 150 and Commissioner of Patents v RPL Central Pty Ltd [2015] FCAFC 177, the alleged invention is not a manner of manufacture.”
19. The nature of the inventive step objection has changed somewhat throughout examination on the application and the parent application, perhaps in response to amendments made by the Applicant. In any case the objection raised in the first examination report of the application asserts that the claims lack inventive step in view of common general knowledge, as exemplified in D1: Webster, M. “Analysis of Winelabel Design Aesthetics and the connection to price”, presented to the Faculty of Agribusiness Department California Polytechnic State University, June 2010. In particular the Examiner indicates that D1 is concerned with “making a label that is more attractive as compared to the other bottle labels” and that the features defined in the claims represent no more than design choices that would be selected by the skilled addressee in attempting to make a wine label that stands out.
The Applicant’s Written Submissions
20. The Applicant’s written submissions deal with both the outstanding objections, although the submissions on inventive step were rather brief and rely upon the Utteridge and Gastin declarations.
21. The remainder of the written submissions are devoted to the issue of manner of manufacture. These submissions begin with a survey of the explanatory memorandum to the Act; the Agreement on Trade-Related Aspects of Intellectual Property Rights (the “TRIPS Agreement”) and exclusions to patentability under the laws of the United Kingdom and the European Patent Convention. Here the Applicant was in effect arguing that there are few exceptions to patentability under the Act in contrast to the situation in the United Kingdom and under the European Patent Convention, and that the TRIPS Agreement (to which the Act is compliant) allows for the patentability of a wide range of technologies. It would appear that the upshot of all this, from the Applicant’s point of view, is that the presentation of information “…can only be excluded from patentable subject matter in Australia if it is excluded by case law as not being a Manner of Manufacture”.
22. The Applicant then considered the construction of the claims, concluding that “Claim 1 as correctly construed has nothing to do with the presentation of information”.
23. The remainder of the Applicant’s written submissions comprise a discussion of case law said to be relevant to “…what might be termed ‘planar objects’”, a list of these cases being attached in a schedule at the end of the written submissions. The Applicant places particular emphasis on GEC’s Application (1943) 60 RPC 1 (“GEC”) and National Research Development Corporation v Commissioner of Patents [1959] HCA 67; (1959) 102 CLR 252 (“NRDC”), and suggests that cases decided prior to these two “watershed decisions” “…need to be treated with caution since the legal principles upon which they were decided have been modified by the subsequent watershed decisions”. Similar arguments are raised with respect to the practice in the United Kingdom prior to 1962.
24. The Applicant then provides some exposition of the development of the concept of manner of manufacture in view of the NRDC decision, contrasting several decisions prior to NRDC with the case law as it evolved in view of NRDC. Particular attention is given to Rhodes’ Application (1973) 90 RPC 243 (“Rhodes”) and I.T.S. Rubber Limited’s Application (1979) 96 RPC 318 (“I.T.S Rubber”), with the Applicant drawing similarities to the situation in I.T.S. Rubber and the present application in support of their contention of patentability.
25. Notably the Applicant also suggests, based on remarks in Rhodes, that at the application stage the Applicant should receive the benefit of any doubt, given that there should not be rejection at the application stage by the relevant tribunal unless it is satisfied that the application is without justification.
The Applicant’s Oral Submissions
26. At the hearing I asked Mr Old if he could point out the technical aspects of the claimed invention, since while this is not determinative of patentability, it would be of some assistance in writing this decision. In response to this Mr Old directed me to a list of integers of claim 1 given in the written submissions, indicating that these integers go to the technical without being in any way information to be conveyed. Mr Old also indicated that there was no new printing technique involved with respect to the label, rather the important aspects of the invention are the closed loops and the colour impression so created. Later Mr Old compared the technical aspects of the claimed invention with those of I.T.S. Rubber and similar cases, indicating that the essence of the application resided in the ability of the label to attract attention. Mr Old also stated that “…in our submission we don’t know what it is about that arrangement of tracks and alternating colours, but it…in my view it creates some sort of reflex in the brain that makes it attention grabbing, and that is what we are trying to protect.”
27. Mr Old also expressed his consternation as to why the Patent Office had objected to the claimed invention as being merely presentation of information. I did indicate that suggesting the invention as presentation of information may not be the most accurate way to characterise the invention, however I would need to give this some more thought. I also pointed out that the Examiner also objected to the claims as being merely aesthetic or visual in nature. I returned to the issue of the invention potentially comprising an aesthetic effect towards the end of the hearing, with Mr Old indicating that the label was not aesthetic or beautiful in nature, in the sense that someone would appreciate the label. Rather Mr Old indicated that the label was attention grabbing so as to induce someone to purchase a bottle of wine. This, in Mr Old’s view was “… a down to earth commercial, practical thing that has got nothing to do with finer art”.
28. Otherwise Mr Old’s oral submissions largely mirrored the Applicant’s written submissions.
Relevant Legal Principles
Manner of Manufacture
The statutory basis for manner of manufacture is found at s18(1)(a) of the Act which refers to the Statute of Monopolies 1623 (Imp) (the “Statute of Monopolies”):
“an invention is a patentable invention for the purposes of a standard patent if the invention, so far as claimed in any claim is a manner of manufacture within the meaning of section 6 of the Statute of Monopolies.”
30. Fundamental principles with respect to manner of manufacture were outlined by the High Court in National Research Development Corporation v Commissioner of Patents [1959] HCA 67 (“NRDC”);102 CLR 252 at 275, [14]:
“It is therefore a mistake, and a mistake likely to lead to an incorrect conclusion, to treat the question whether a given process or product is within the definition as if that question could be restated in the form: "Is this a manner (or kind) of manufacture?" It is a mistake which tends to limit one's thinking by reference to the idea of making tangible goods by hand or by machine, because "manufacture" as a word of everyday speech generally conveys that idea. The right question is: "Is this a proper subject of letters patent according to the principles which have been developed for the application of s. 6 of the “Statute of Monopolies?"”
31. The NRDC decision related to a process for eradicating weeds from crop areas. A test applicable to the facts of this case was given in NRDC at 275, [22]:
“The point is that a process, to fall within the limits of patentability which the context of the Statute of Monopolies has supplied, must be one that offers some advantage which is material, in the sense that the process belongs to a useful art as distinct from a fine art (see Re Virginia-Carolina Chemical Corporation's Application (1958) RPC 35, at p 36) - that its value to the country is in the field of economic endeavour.”
32. As observed by the Applicant in their submissions, the NRDC decision was seminal in the sense that it significantly expanded the concept of what could be considered to be a manner of manufacture. Despite this it is clear from NRDC that there are still limits as to what can be properly considered a manner of manufacture under s6 of the Statute of Monopolies. Notably the High Court in NRDC at [22] endorsed the exclusion of anything characterised solely by its visual content from patentability as noted in Re Virginia-Carolina Chemical Corporation’s Application (1958) 75 RPC 35 (“Virginia-Carolina”) at 36:
“In the course of time, the principle that the intellectual or visual content of a paper or card related to the fine and not the applied arts, and was accordingly outside the statutory definition of invention has been extended to cover additional articles e.g., cinematograph films and gramophone records which differ only in the means whereby information is conveyed to the brain.”
Inventive Step
33. For reasons that will become apparent I do not consider it necessary at this point to outline relevant legal principles with respect to inventive step.
Stringency of Tests
34. As observed earlier, Mr Old represented in written submissions that the application should be entitled to the benefit of any doubt unless I was satisfied that the application was without justification, a suggestion which he also reiterated at the hearing. However as examination was requested after 15 April 2013, the substantive amendments of the Act brought about by the Raising the Bar Act apply to the present application. In particular the amendments to s49 of the Act allow the Commissioner to refuse an application if she is not satisfied on the balance of probabilities that the invention, so far as claimed, satisfies the criteria of s18(1)(a). Notably the criteria outlined at s18(1)(a) is that the invention, so far as claimed in any claim “is a manner of manufacture within the meaning of section 6 of the Statute of Monopolies”.
Do the Claims Comprise a Manner of Manufacture?
35. I will initially consider this question with regard to the independent claim (claim 1). I will then consider this question with regard to the dependent claims.
36. The primary question to my mind is does the invention of claim 1, comprising a “target” or “bullseye” type arrangement comprising contrasting colours comprise a manner of manufacture?
37. It is apparent from the application, the Applicant’s submissions and the evidence provided that the invention of claim 1 is distinguished by no more than the fact that it comprises a label having certain patterns and contrasting colours that are visually distinct from any other label. Without further evidence or submissions as to the precise objective advantages bestowed by the pattern defined in claim 1 over any other contrasting pattern, the same could be said of any pattern or shape characterised by contrasting colours. For example one could conceive of a label comprising helical stripes of contrasting colours which would undoubtedly stand out with respect to other labels as known in the art. Indeed one need not stop at colourful patterns as one could achieve the same effect as the present invention with any conceivable piece of artwork that comes to mind, for example using the artwork of Picasso or Van Gogh. It is thus apparent that claim 1 is characterised by nothing more than its visual content. It has long been held, as noted in Virginia-Carolina, that such inventions are not for manner of manufacture.
38. The Applicant has supported their allegations of patentability by comparing the present invention with the situation in I.T.S. Rubber. Notably the Applicant in their submissions also cited Rhodes and Moore Paragon Australia Limited v Multiform Printers Pty Limited [1984] APO 28 (“Moore Paragon”). All of these applications were found to be for a manner of manufacture, and I consider it convenient to now distinguish the situation of these applications from claim 1 of the present application.
39. In I.T.S. Rubber a squash ball distinguished by the colour blue was held to have a material advantage with respect to the improved visibility of the squash ball against the white background of a squash court. Notably, in reaching this conclusion, there was evidence available to Whitford J. (that was not available to the patent office) that indicated that the invention was in an objective sense “…not just a mere selection of an alternative colouring for a squash ball” (at 322). Indeed it was apparent that the inventor, Mr Corby, had undertaken experiments with squash balls of a wide variety of colours to ascertain, surprisingly, that the colour blue provided enhanced visual perception of the squash ball against the white colour of squash courts as compared to squash balls of other colours (at 323).
40. In Rhodes the claimed invention related to a speedometer for a vehicle comprising the usual speed scale (kilometres per hour, for example) and a second scale that indicated kinetic energy or impact power at each speed (“impact speed”) to the driver. It was held that a material advantage was supplied by the very idea and manner of displaying an “impact speed”, as explained in Rhodes (at 247):
“On the information at present available it could be said that this inventor’s contribution was the idea that it would be valuable to provide a driver with an instrument which would indicate his ‘impact speed’ coupled with a method of doing this. The invention appears to us to lie not in the information but in the idea of presenting such information and in a way in which this can be done.”
41. Similarly the invention in Moore Paragon comprised the material advantage of being able to easily extract certain information from a record form for computer entry, through the use of a record form comprising contrasting colours for recording relevant information and non-contrasting colours for irrelevant information.
42. As can be seen from I.T.S. Rubber, Rhodes and Moore Paragon, the objective restriction of the claimed invention within a particular environment and/or context along with the objective selection of particular integers meant that each of these applications provided a material advantage in the sense of NRDC, and in doing so avoided the accusation that they were merely characterised by presentation of information or by visual content.
43. The same cannot be said of the present invention as claimed in claim 1, and this distinguishes the present situation from that of I.T.S. Rubber, Rhodes and Moore Paragon. There is nothing that indicates that the visual aspect of the claimed invention provides a material advantage in the sense of NRDC. Indeed as noted earlier at [26] of this decision, Mr Old could not explain in any objective sense how the claimed invention provided for a material advantage, merely postulating that it created “…some sort of reflex in the brain…”. Notably no evidence has been provided that supports the Applicant’s contention that the invention of claim 1 provides for a material advantage.
44. The closest the evidence comes to this point is given by Mr Utteridge at [6] of his declaration, where he indicates that “It is the specific shapes and colours which are the key to the significant labelling advance described in the patent specification”. Mr Utteridge at [9] also concludes that:
“In my view the advances in label technology described in the patent specification are very significant because it doesn’t follow traditional packaging norms as per the academic paper and sits in its own space and construct as a unique combination of labelling and ascetic”.
45. Mr Gastin, for his part, comments as follows at [6] and [9] of his declaration:
“In my experience, the visual delineation of wine label is not just a means of conveying information but also a major factor in attracting consumer attention - especially at points of retail sale, and particularly in countries where wine buyers are dealing with a foreign language on the labels and, therefore, the language is not the delineating factor, but the visual impression is the major sales factor. Even in well established markets, buyers may enter a store with a specific winery label in mind but, due to the visual similarity of so many wine labels on shelves, they will frequently find it very difficult to identify the specific label that they are looking for. The ability of a label to attract attention is a function of its visual layout. The prospective wine purchaser has their attention directed to the label at a distance at which any printing on the label would be illegible. In addition, such printing has no effect on the ability to attract attention. Therefore visual layout is a major sale factor.”
“In my view the advances in label technology described in the patent specification are very significant because they have the potential to make a wine standout in an attractive and appealing way to assist buyers to associate particular wine with a style category - particularly when the colours are selected to usually reflect the colour of the wine inside the container. This is an important factor because a significant proportion of buyers enter a store with a specific grape variety in mind and a familiarity of the colour that this grape variety delivers in the final product - for example, Shiraz generally has a deep Ruby colour, Pinot Noir lighter Ruby colour, cabernet sauvignon a deep purple colour and so on.”
46. While it refers to the specific colours and shapes as characterising the advance of the invention, one may take this declaratory evidence to simply indicate that the label of the invention stands out from other wine labels simply because a pattern comprising contrasting colours has been used as opposed to traditional wine labels. Despite suggestions to the contrary at page 6, lines 11 to 13 of the application, there is nothing particularly surprising or unexpected about a contrasting pattern, as defined in claim 1, standing out in comparison to traditional wine labels which it may be fairly said to typically comprise a white background with darker coloured text and perhaps a logo; this was apparent in the demonstration provided by Mr Old at the hearing where he provided a display of wine bottles comprising traditional labels along with a bottle comprising a label according to the present invention. It is abundantly clear that the present invention is characterised by simply being visually different and by nothing else.
Are any of the Dependent Claims for a Manner of Manufacture
47. None of the dependent claims define a monopoly that fundamentally escapes the patentability issues of claim 1. It follows that none of the dependent claims define a manner of manufacture.
Is there anything within the application that provides for a manner of Manufacture?
I have considered the patentability of the invention as claimed in view of the application as a whole and the arguments and evidence put forward by the Applicant. I will now consider whether there is any material in the application, beyond that already considered, that may be claimed and result in a manner of manufacture.
49. The only material of any significance that is described in the application, but not claimed appears to relate to:
(i) “…a method of enhancing self selection by a shopper of a first bottle or container displayed amongst a multiplicity of other bottles or containers each of which displays a label of a competing brand, the method comprising the step of applying to said first bottle or container a label as above” (page 6, lines 16 to 19); and
(ii) colouring parts of the label such that the colours signify the grape varieties comprising the wine (page 5, lines 10 to 21).
I will consider each of items (i) and (ii) below.
50. In relation to item (i), inducing a person to purchase a bottle or wine, or any other product for that matter, is a business innovation and consequently does not provide a material advantage in the sense of NRDC. It follows that any claim solely characterised by item (i) would not be for a manner of manufacture.
51. It is apparent that item (ii) comprises nothing more than a scheme for associating different colours with different wine varieties. It has long been held that such schemes are not for a manner of manufacture; see for example W.’s Application (1914) 31 RPC 141 where an arrangement of buoys comprising a colour or number, for example, on the buoys would indicate to the captain of a vessel where the vessel is in relation to a fixed point, for example the shore, and was held to not comprise a manner of manufacture. It follows that any claims characterised solely by item (ii) would not be for a manner of manufacture.
52. Despite Mr Old’s submissions with respect to old case law, I note that there is nothing in the NRDC decision or since that overturns the prohibition on the patentability of schemes per se; indeed this much is apparent at [14] to [16] of Grant v Commissioner of Patents [2006] FCAFC 120.
53. I conclude that there is nothing in the application, beyond that already considered, that could be claimed so as to result in a manner of manufacture.
Manner of Manufacture – Conclusion
54. None of the claims are for a manner of manufacture and there is no other subject matter within the application that would lead to a manner of manufacture if made the subject of a claim.
Inventive Step
55. In view of the difficulties that the application has with respect to manner of manufacture, I consider it superfluous to determine whether the claimed invention comprises an inventive step. As such I will provide no further consideration on the outstanding inventive step objection.
Conclusion
None of the claims are for a manner of manufacture. In addition I see no material in the application that could be made the subject of a claim so as to result in that claim being for a manner of manufacture. I therefore refuse the application.
Dr W.E. Guinea
Delegate of the Commissioner of Patents
0
4
0