Ocean Breed Pty Ltd v Lawrence J.F. Hohensee

[2004] APO 7

OFFICIAL NOTICE

DECISION OF A DELEGATE OF THE COMMISSIONER OF PATENTS

Application  :          No. 10108/99 in the name of OCEAN BREED PTY LTD

Title:          Fin Assembly

Action:          Request by LAWRENCE J. F. HOHENSEE under section 32 of the Patents Act for a determination of the Commissioner as to the name or names in which the application is to proceed

Decision:          Issued            .

Abstract

Entitlement in this application had been assigned from one company to another.  The requestor and the principal of the assignee company were directors and, through entities which they effectively controlled, shareholders of the assignor company.  The requestor alleged that the assignment was not legally valid and thus requested that the application proceed in the name of the original applicant.  The requestor alleged that proper internal company procedures were not followed in taking the decision to assign the application.  This allegation was principally based upon the fact that the relevant shareholders meeting was not legally constituted because the requestor should have, but did not, chair the meeting and because the requestor was notified that the meeting had been abandoned rather than, as was in fact the case, adjourned.

The patent applicant contended that the "indoor management rule" applied and that accordingly the assignment was not open to challenge in the manner the requestor sought to do.

It was found that, in view of the fact of the principal of the assignee being a director of the assignor, the indoor management rule did not shield the assignment from an inquiry as to the processes which led to it being made.

However the allegations as to fact made by the requestor were found to have not been established on the evidence.

The request was dismissed.

Costs were awarded against the requestor.

PATENTS ACT 1990

DECISION OF A DELEGATE OF THE COMMISSIONER OF PATENTS

Re:Patent Application No. 10108/99 by    OCEAN BREED PTY LTD, and a request by LAWRENCE J. F. HOHENSEE under section 32 of the Patents Act for a determination of the Commissioner as to the name or names in which the application is to proceed.

BACKGROUND

1. Pat Tech Pty. Ltd. ("Pat Tech") filed International Application PCT/AU1998/000897 on 27 October 1998, claiming priority from Australian provisional applications PP 0025, PP 0805 and PP 4015 filed on 27 October 1997, 9 December 1997 and 10 June 1998, respectively.  The inventors of record are Barry Allan Jolly and Mark Sydney Palmer.  PCT/AU1998/000897 designates, inter alia, Australia, and it entered the national phase in Australia on 15 May 2000.  A first report under national examination has been issued in respect of the application.  The only objection of that report is that a notice of entitlement in respect of the application has yet to be filed.  This remains the situation.

1. On 11 October 2001 a request was made by Ocean Breed Pty Ltd ("the applicant") to have this patent application, along with other patents, patent applications and registered designs in the name of Pat Tech Pty. Ltd., proceed in the name of Ocean Breed Pty Ltd.  The request was accompanied by an original Deed of Assignment and an attested copy thereof.  The request was granted on 14 November 2001 and advertised on 29 November 2001.

1. On 4 November 2002 Lawrence J. F. Hohensee faxed a letter to IPAustralia in which he stated:

"[The change of applicant] was illegal as I was not informed and would not have been in agreement.  A decision would have required a General Meeting and a unanimous vote."

1. On 26 March 2003 Mr Hohensee filed a request under section 32 of the Patents Act for the resolution of a dispute between two or more interested parties in relation to the manner in which this application should proceed. The request relies on the following facts:

"The Patents were illegally transferred to Oceanbreed company by Jolly, Dalton, Gorrie and Czaus by making decisions and acting on those decisions at a meeting called illegally after various meetings had been adjourned and then abandoned making any business at these meetings illegal.  In a letter from Czaus Lawyers it states Jolly's reason being in recitals A.B.C.D.E. claiming royalties owed.  This is totally untrue as it was proven so from the correct records of Fin Tech Systems P/L it was proven he was actually over paid.  But at one of these meetings they had it was stated there was no proof presented.  I was not at any of these as presented proof stated they had been cancelled and then abandoned, making any decisions made illegal (correspondence enclosed)."

1. Evidence in support and evidence in response was duly filed by each party.  Subsequently, on 19 December 2003, a letter from the Commissioner was sent to the parties drawing their attention to the fact none of their evidence had been filed in declaratory form, and the implications that had for the weight that the Commissioner could attach to that evidence.  The letter went on to allow the parties until 14 January 2004 to provide the material they had already filed in declaratory form.  This they did, although the applicant did not meet the deadline of 14 January 2004.  However Mr Jolly, who seems to have the responsibility for the running of the applicant's case, put forward as the cause of this being that he had been in the United States in the relevant period.  This appears a cogent reason, and since there would appear to be no detriment to the other party (Mr Hohensee) in doing so, I am prepared to take into account the late-filed evidence of the applicant in determining this request.

1. The hearing of this matter took place in Canberra on 5 February 2004.  Only one party attended, Mr Jolly representing Ocean Breed Pty Ltd, of which he is a principal.  Mr Hohensee filed written submissions prior to the hearing.

THE SPECIFICATION

1. The nature of the invention and its inventorship do not play any part in this matter.  The invention relates to a means of attaching a fin to a surf-board using a spigot-socket arrangement and a securing mechanism, which in preferred form is one or more grub screws.

BASIS OF THE DISPUTE

1. Mr Hohensee and Mr Jolly are in business together.  They, along with a Mr David Dalton, are the directors and, through entities which effectively they control, equal shareholders in Pat Tech and at one time were also shareholders and directors of another company called Fin Tech Systems Pty Ltd.  A Mr Paul Gorrie, who is the accountant for Pat Tech, owns 1 B class share in the company.  Fin Tech Systems Pty Ltd manufactures and markets surfboard equipment, and Pat Tech was set up as a holding company for various patents and registered designs licensed to Fin Tech as security for investors in that company.  It is clear from the evidence and submissions of Mr Jolly and Mr Hohensee that their relationship is one of mutual animosity and distrust which, on the part of Mr Hohensee at least, predates by many years their going into business together (which I understand is a relatively recent event).

1. On about June 2000 the other shareholders of Fin Tech Systems Pty Ltd appear to have sold out to Mr Hohensee and his wife and resigned as directors because of "friction" within the company.  I use the term "appear", because, according to the evidence, despite the apparent transfer of shares having been made and resignations tendered, in November of that year the ex-shareholders and ex-directors convened a meeting purportedly of Fin Tech Systems.  One item on the agenda of this meeting was the removal of Mr Hohensee as director.

10.  The exit of Jolly and Dalton from Fin Tech seems to have been a decidedly messy one in other ways as well, with formal allegations of theft of company property being made to the Queensland police by Mr Hohensee in September of 2000.  At the same time Fin Tech's licence to the intellectual property owned by Pat Tech was "removed" and given to another company - Fin Tech Corporation - which subsequently went broke.  Neither Hohensee nor Jolly appears to have had a direct involvement in Fin Tech Corporation.

11.  As an inventor, Mr Jolly was entitled to a royalty from Pat Tech of 12c per fin and 12c per plug (it is not clear what part of the apparatus this is) for each unit that was sold.  A dispute arose as to whether Mr Jolly had been paid his full royalty entitlements.  In July/August 2001 a series of shareholder meetings was held by Pat Tech in order to resolve this dispute.  The first meeting was held on 30 July 2001 and, according to Mr Jolly's account, after a number of adjournments up to 28 August the meeting decided to assign the Pat Tech intellectual property to the present applicant.  The decision to assign was taken under the threat of legal action by Mr Jolly against Pat Tech to recover his royalties, and was taken in the absence of Mr Hohensee, who alleges that he was notified that the meeting had been abandoned.  The deed of assignment was executed on 28 September, with Mr Jolly signing as secretary and director and Mr Dalton signing as director.  However, in March and in May 2002 the evidence of Mr Hohensee is that Mr Jolly was still demanding royalties from Mr Hohensee.

12. In September 2002 Dalton and Jolly offered to assign the intellectual property of Pat Tech to Mr Hohensee in return for winding up Pat Tech, acknowledging that Mr Jolly did not owe any monies to Pat Tech or Fin Tech Pty Ltd and entering into an appropriate deed of release and indemnity. It appears that Mr Hohensee was initially tempted by this offer. However his attempts to ascertain the financial situation and state of the assets of Pat Tech from Mr Gorrie were unsuccessful, causing him to do some digging himself, whereupon he discovered the assigning of the present patent application and other intellectual property to Ocean Breed Pty Ltd a year earlier. This section 32 action was, as already stated, initiated soon after.

LAW

13.  In deciding a matter such as this the Commissioner is entitled to act on any material which is "logically probative" of the issues under consideration.  In reaching a conclusion on any issue, the standard of proof required is the civil standard of proof on the balance of probabilities (see, for example, Dunlop Holdings Ltd's Application (1979) RPC 523). Furthermore it is clear from the authorities (see, for example, Stamp v W J Powell Pty Ltd (1918) 24 CLR 339) that it is incumbent upon an opponent to prove its case. Thus in this case the onus is on the section 32 requestor, Mr Hohensee, to provide clear evidence to justify a finding that the assignment of entitlement to the invention was invalid. In the present matter I must consider the evidence and decide the issues mindful of these general parameters.

14.  The deed of assignment document itself is not susceptible to challenge, and nor is this contended by Mr Hohensee.  It is executed by the secretary and two directors of the assignor company, Pat Tech, and this meets the requirements of the Corporations Law 2001.  However Mr Hohensee seeks to go behind the document in challenging its validity, alleging that the actions by Mr Jolly, Mr Dalton and Mr Gorrie in making the assignment was illegal

"thereby stripping the assets of Pattech P/L and defrauding the minority Shareholders of their Majority investment on the pretext of a claim for Royalties owed to Jolly."

15.  In refutation of this Mr George Czaus, who is Mr Jolly's lawyer, contended, in separate submissions:

"Ocean Breed Pty Ltd ACN 082 411 238 and Barry Allan Jolly are entitled to rely on the "indoor management rule" in relation to a corporation and do not need to nor are they required to enquire as to whether or not in executing the Deed of Assignment, all procedural aspects of the company's internal requirements were met."

"The question before the Commissioner is whether or not on the face of the documents the Deed of Assignment is a valid document (in the absence of any fraud).

We believe there has been sufficient evidence placed before the commissioner that the meeting was validly called and the appropriate resolutions were passed authorising the relevant officers of the company to affix the company seal to the Deed of Assignment thereby assigning the patent from Pat Tech Pty Ltd to Ocean Breed Pty Ltd.

The other matters raised by Mr Hohensee is a matter which we suggest should be dealt with civilly before a Court of competent jurisdiction where the appropriate rules of evidence will apply and costs of any proceedings can be recovered from the unsuccessful claimant.

In the circumstances our client's submission is that Mr Hohensee is a disgruntled director who has been outvoted and is now attempting to interfere in a transaction which he originally tried to stop."

16.  It is not clear from the second submission, which was made subsequent to the first, whether or not the "indoor management rule" was being maintained.

17.  A fairly similar situation to the present one arose in Allaway v Lancome Investments Limited [2002] APO 47. In that case misleading conduct was alleged to have occurred in obtaining the assignor's signature upon the deed of assignment. In his decision the hearing officer stated as follows:

"Further consideration of the entitlement issue requires examination of the validity of the intellectual property assignment deed itself.  LIL are the successor in title to SGR who in turn rely on the assignment of Mr Allaway's original rights in the invention to them on 21 November 1997.  Mr Allaway disputes the legitimacy of this claim on the basis that the assignment deed should be held unenforceable by reason of Mr McGreal's alleged misleading conduct.  Although I am not aware of any direct authority on the point, it seems from Prestige Group (Australia) Pty Ltd v Dart Industries Inc (1990) AIPC 90-715 that such conduct, and its effect, would ordinarily be the subject of judicial consideration in revocation proceedings where the entitlement of the patentee is in issue. However, while Mr Allaway's allegation as to prior conduct may as a consequence raise issues of law outside the area of the Commissioner's expertise, this does not circumvent the requirement for the Commissioner to form a view on the matter so far as is relevant to a determination of the opposition proceedings (Advantage-Rent-A-Car Inc v Advantage Car Rental Pty Ltd [2001] FCA 683).

In Advantage it was argued that it was not within the competence of the Registrar of Trade Marks to determine at the stage of opposition proceedings whether the use of a trade mark would be contrary to law if it involved issues beyond those set out in the Trade Marks Act 1995. The Federal Court rejected this submission as follows:

'The contrary to law ground can fall for consideration at three different stages  The first two are determinations made by the Registrar, which are judicially reviewable by this Court, whilst the third is a determination made by this Court.

However, in my opinion the fact that the existence of any contrariety to law is to be exercised in some instances by an administrative body and, in other circumstances, by a judicial body does not mean that the phrase "if its use would be contrary to law" should have an ambulatory meaning, depending on what kind of tribunal is to apply it.  Nor can any reticence on the part of an administrative decision-maker to express an opinion on a matter of law be encouraged.  The idea that "contrary to law" in the context of judicial proceedings means contrary to all laws, whilst in the context of proceedings before the Registrar it means contrary to laws which are easy for the Registrar to determine or which are "clear cut", is not sustainable.'

These principles obviously govern the role of the Commissioner as an administrative tribunal.  It is also apparent from Stack v Brisbane City Council [1999] FCA 1279 that the meaning applied to the expression "entitlement" in proceedings for revocation is no different from its meaning when it arises for determination in opposition proceedings."

18.  While the situation in Allaway v Lancome Investments Limited still concerned an irregularity in the actual signing of the deed, whereas in the present case the circumstances which have given rise to this action do not relate to the actual execution of the deed, the generality of the comments by the Federal Court in Advantage-Rent-A-Car Inc v Advantage Car Rental Pty Ltd cited above would seem to compel me to take into account whether the assignment between Pat Tech and Ocean Breed Pty Ltd offends against any law such as to render it invalid.

19. Mr Czaus has invoked the "indoor management rule" in submitting a contrary view. This rule started as a common law principle which has since been codified in the Corporations Act 2001 in sections 128 and 129. The indoor management rule derives from Royal British Bank v Turquand (1856) 6 E&B 327, 119 ER 886, and was said by Lord Simonds in Morris v Kanssen (1946) AC 459 at 474 to be correctly stated in Halsbury's Laws of England as follows:

"But persons contracting with a company and dealing in good faith may assume that acts within its constitution and powers have been properly and duly performed and are not bound to inquire whether acts of internal management have been regular."

But, as was said by Banks LJ in Houghton & Co v Nothard, Lowe and Wills Limited [1927] 1 KB 246 at 260:

"…..the person who claims the benefit of [the indoor management rule] must (a) prove that he relied upon the ostensible authority which he sets up, and (b) must not have been put upon inquiry as to whether the transaction was in order."

or, as is now stated in subsection 128(4) of the Corporations Act 2001:

"A person is not entitled to make an assumption in section 129 if at the time of the dealings they knew or suspected that the assumption was incorrect."

20. In the situation of the present matter, where Mr Jolly is a director of both the assignor and the assignee companies and clearly could not fail to be aware of the circumstances leading to the assignment, I hardly see how the indoor management rule can shield the assignment from scrutiny as to whether it has been properly made. Given the particular allegations made by Mr Hohensee, this would largely appear to require an inquiry as to whether any of the actions leading to the making of the assignment have been contrary to the Corporations Act 2001.

DECISION

21.  In deciding this matter it falls first to be determined whether, on the evidence, certain facts alleged by Mr Hohensee are proven on the balance of probabilities and then, if necessary, determine the legal implications of those facts.

22.  It should be noted at the outset that the evidence is rather poorly presented and arranged and lacking in detail in some important aspects.  This lack of detail is sometimes unavoidable, as it is an outcome of apparently deficient practices within the companies.  One set of meeting minutes records Mr Jolly himself as saying:

"the bookkeeping of Pat Tech and Fin Tech Systems in the past has been negligent and Pat Tech and Fin Tech records cannot be relied upon."

23.  Thus, for instance, the financial records of the companies seem to be something of a shambles, and the inability to establish with any certainty who was paid what and whom owes what to whom is probably at the heart of the current dispute between the parties.  However resolving that issue, even if it were possible on the basis of the evidence on file, is outside the scope of this decision.

24.  Of greater relevance to this matter is the state of the meeting records.  The meeting records, where they exist, are often very basic, and even where reasonable minutes have been kept there is no indication of them having been agreed to by those present, or by a subsequent meeting.

25.  In other instances, gaps in the evidence would seem to have been avoidable, such as providing a copy of the full constitution of the companies.  A couple of pages of the constitution of Pat Tech have been provided in support of specific points, but other references to what is in the constitution can only be taken as being true on the say so of the declarant making the reference.

26.  The case put forward by Mr Hohensee as to why the assignment was not legal comes down to two basic causes:

·    the meeting was not in accordance with the constitution because he, Mr Hohensee, was voted out of being chairman of the meeting

·    he, Mr Hohensee, was formally notified that the meeting had been abandoned, rather than adjourned, so that any decisions taken by the adjourned meeting (which included the relevant decisions on the assignment) were not legal.

27.  Before dealing these two issues, it may be worthwhile to note that, according to Mr Hohensee's evidence, all meetings of Pat Tech that were held were General Meetings rather than Director's Meetings.  The reason, according to Mr Hohensee, is that decisions of the directors, Mr Hohensee, Mr Dalton and Mr Jolly had to be unanimous, whereas decisions of the shareholders only had to be by a simple majority.  (Presumably this is in the company's constitution, but no evidence was provided in confirmation of this.)  The four shareholders are, I understand, from the evidence, Maxilake Pty Ltd (represented by Mr Dalton), the Jolly Family Trust (it is Helen Jolly who appears to represent this shareholder, as the trustee), Hohensee Smith Developments Pty Ltd and Hohensee Enterprises Pty Ltd (the last two being represented by Mr Hohensee).  As already mentioned, Mr Gorrie apparently holds one B class share.  I should note that the evidence on the shareholding in Pat Tech is far from clear cut, but even if I am wrong in my understanding of the specifics of the shareholding nothing of consequence flows from that.  The crucial point is that the Hohensee shareholding is in a minority.

28. The fact that decisions of the company were taken by the shareholders rather than the directors has one other important implication. Had the decision to assign been taken by the directors rather than the shareholders, then Mr Jolly would have been in a clear conflict of interest position and potentially in contravention of one or other of the provisions of Part 2D.1 of the Corporations Act 2001. However by convening a meeting of shareholders to make the decision to assign, the conflict of interest problem seems have been circumvented.

29.  I turn now to the first of Mr Hohensee's complaints, namely, that the meeting was not in accordance with the constitution because he, Mr Hohensee, was voted out of being chairman of the meeting.  The relevant rule of the constitution reads:

41(1)  If the directors have elected one of their numbers as chairperson of their meetings, that chairperson shall preside as chairperson at every general meeting.

(2)  Where a general meeting is held and:-

(a)   a chairperson has not been elected as provided by sub-rule (1); or

(b)the chairperson is not present within fifteen (15) minutes after the time appointed for the holding of the meeting or is unwilling to act;

the members present shall elect one of their number to be chairperson of the meeting.

30.  The evidence contains details of four Pat Tech meetings, as follows:

·    Directors Meeting on 23 December 1999, chairperson a Mellisa Scott.  The copy of the minutes in the evidence (of Mr Hohensee) contains this handwritten annotation by Mr Hohensee: "Never informed of this meeting or heard of meeting.  Meeting illegal."

·    Meeting on 29 June 2000.  The document referring to this meeting is headed "Meeting Pattech P/L Minutes 23/6/00."  From the way the voting is recorded, it seems to be a shareholders meeting.  At the end of the document the words "L Hohensee Chairman" appear against Mr Hohensee's signature.  These minutes include the following passage:  "L Hoh states original chairman is not here so I will take over.  L Hoh took chair nobody objected."

·    Shareholders Meeting on 30 March 2001.  The minutes state that it was agreed that Paul Gorrie would chair the meeting.  These minutes make facility for the chairman, the three shareholder representatives David Dalton, Barry Jolly and Laurie Hohensee to sign as approving the minutes, but only David Dalton has actually done so.  At the next (fourth) meeting there is reference to changes being made to these minutes, but the evidence does not disclose what these changes were.

·    Shareholders Meeting commencing on 30 July 2001 and proceeding through a number of adjournments to 28 August 2001.  The minutes include the following details:

"L Hohensee :  Stated that he should be the chairman because he was elected by the members to be the chairman of all Pat-Tech meetings.

D. Dalton :   Stated that this was not the case and that no member has ever been appointed the permanent chairman of the Pat-Tech meetings.

L. Hohensee : Stated that we should check the constitution of the company.  The members checked the constitution of the company and found that there were no grounds for Mr Hohensee's statement.

P. Gorrie : Put forward that he was prepared to chair the meeting and that it should be put to a show of hands as to who would chair the meeting.  D.Dalton, L.Hohensee, Paul Gorrie to chair the meeting.

·It was voted by a majority present that P. Gorrie chairs the meeting."

31.  In her evidence Jocelyn M. Hohensee, wife of the requestor, makes reference to another shareholders meeting of Pat Tech taking place on 27 March 2000.  However, no further details are provided of this meeting.

32.  There is thus nothing in the evidence to support Mr Hohensee's contention that he had been elected by the directors as chairperson of their meetings.

33.  This alone would seem a sufficient basis to find against Mr Hohensee on the point of whether the fact that he did not chair the crucial 30 July 2001 meeting rendered the meeting, and, in consequence, the assignment, "illegal".  However there are other considerations as well that lend support to that finding.

In the first place, under the constitution it would seem to be within the power of the directors to elect a new person to be chairperson of their meetings.  Given the apparent informal nature of Pat Tech meetings, it does not seem unreasonable to regard this as being what occurred at the meeting of 30 July 2001.  In the second place, it is not readily apparent how the chairmanship of the meeting could have affected the course of the meeting, given the distribution of shares.  That is, it would appear to be a mere technicality that could have had no impact upon the ultimate outcome of the meeting.

34.  The second ground relied upon by Mr Hohensee in challenging the "legality" of the Shareholders Meeting of Pat Tech which took place from 30 July 2001 to 28 August relates to whether he had been properly notified of the resumption of the meeting which occurred on 28 August 2001.  Indeed, Mr Hohensee alleges that he was formally notified on 24 August 2001 that the meeting had been abandoned.  If the meeting had been abandoned then under the constitution of Pat Tech the later resumptions of the meeting would not have been constitutional and any decisions taken by the resumed meeting would presumably have had no legal basis.

35.  Central to Mr Hohensee's allegation in this regard is a copy of a fax that he claims was sent to him notifying him that the meeting had been abandoned.  The applicant denies that such a fax was sent to Mr Hohensee and alleges that the document Mr Hohensee has put in evidence is a forgery - and in fact a complaint has been made to the Australian Federal Police in relation to that.

36.  Arriving at a view on whether this document is genuine or not is made particularly difficult by the fact that the actual document in evidence is only a photocopy of the original, and no forensic evidence is available to confirm one way or the other whether the original is or is not genuine.  Nevertheless to my untrained eye there are aspects of the document in the evidence which lend support to the possibility that it may not be genuine, to the extent that I have concluded that it would be unsafe to place any reliance upon it.  In particular the final paragraph of the document reads:

"Re:Meeting of 30 July which has been adjorned (sic) to the 10^th August then adjorned to the 22rd (sic) August and then adjorned to the 27^th August has been abandoned."

37.  There are a number of similar faxes in the evidence, each one formatted more or less in the same way and each one concluding with a paragraph along the lines I have just quoted.  In every other document the final paragraph is formatted so as to be centred on the page, and being obviously computer-generated, the centering is precise.  However, in the document under consideration the paragraph is also centred on the page, but not exactly so.  It has clearly not been keyed with the paragraph alignment set at "centre".

38.  Also, Mr Hohensee is in the practice of handwriting on each fax the date it was received, in the form "RECEIVED 24-8-01".  In the document under consideration the date appears to be an overwriting of another date, although since we are dealing with a photocopy no great certainty attaches to that.

39.  The applicant has drawn attention to typographical errors in the fax under consideration, but since the other faxes also contains errors of this nature I do not think anything can be made of this one way or another.

40.  Of considerable significance to this issue of whether Mr Hohensee was informed that the meeting had been abandoned would appear to be a fax sent by him to Pat Tech and addressed to Gorrie, Dalton and Jolly.  The fax is signed by Mr Hohensee, and has a hand-written annotation that it was faxed at 9.40am on 24-8-01, that is, the date that Mr Hohensee claims to have received the fax saying that the meeting was abandoned.  It appears to be primarily concerned with other matters (and the purpose it has been included in the evidence is associated with these other matters), but towards its end it states:

"I will not attend any unconstitutional continuation of any meeting of frivolous content and frivolous accusations against myself and that have nothing to do with the running of Pattech P/L and are costing the company unnecessary expenses.

If there is anything that needs to be discussed concerning Pattech P/L send it to me to decide if it can be addressed without calling a meeting and travelling 10 hours each way for NO reimbursement and to find it is only an attack on myself and the minority shareholders."

41.  The clear inference from this is that Mr Hohensee intended to absent himself from the meeting from then on, making it something of a coincidence that that occurred on the same day that Mr Hohensee now claims to have received a fax saying that the meeting had been abandoned.  Of course, it is not outside the realms of possibility that the former precipitated the latter, although there is no suggestion in the evidence or submissions from the parties that this is what happened.

42.  Another significant discrepancy in relation to the fax sent by Mr Hohensee on 24 August 2001 occurs elsewhere in Mr Hohensee's evidence.  In evidence dated 26 September 2003 he states:

"On the 24/8/01 I received a notice from Gorrie's office that the original meeting has been abandoned.
I contacted Gorrie's office on 24/8/01 to confirm this.
My phone statement supplied (sic) to confirm these contact dates."

43.  However when one goes to the phone statement, the only communication made to Gorrie's office appears to be a fax at 9.33am (which is presumably the fax which I have adverted to above) and there is no indication that any phone call was made on that day to Gorrie's office.

44.  Yet another version of events appears to have been given by Mr Hohensee in a fax to Pat Tech on 15 March 2002.  On that occasion he stated:

"The faxes from Gorrie state the meeting was adjourned to the 10 August, adjourned to 22 August, adjourned to 27 August, adjourned to 31 August, and then abandoned."

45.  Mr Hohensee claims that that letter has been altered from the original he sent, and in particular in respect of the passage that I have just quoted, and in support of this claim he has provided a copy of what he alleges is the actual document he sent.  However there is nothing in the evidence to support a conclusion either way on this.

46.  Even disregarding the fax of 15 March 2002, in light of the foregoing I have concluded that little reliability can be placed upon the evidence of Mr Hohensee as to the circumstances that led to him being absent from the crucial Shareholders Meeting of Pat Tech on 28 August 2001.  The evidence supports a conclusion that Mr Hohensee's absence was an intentional act on his part.

47.  Accordingly I find that, on the basis of the evidence before me, and contrary to the assertions of Mr Hohensee, all proper procedures were followed in relation to the Shareholders meeting of 30 July 2001 to 28 August 2001 and that all decisions taken at that meeting, and in particular the decision to assign the present patent application to Ocean Breed Pty Ltd, are legally valid.

CONCLUSION

48.  I have found that procedures leading to the decision of the shareholders of Pat Tech to direct the authorized officers of Pat Tech Pty Ltd to sign the Deed of Assignment assigning, inter alia, entitlement to the present application to Ocean Breed Pty Ltd met all procedural aspects required by the company's constitution.  The Deed of Assignment is thus legally valid, thereby confirming the entitlement of the present applicant, Ocean Breed Pty Ltd, to be sole applicant in respect of the present application.

Accordingly, I dismiss the section 32 request by Lawrence J. F. Hohensee.

COSTS

49.  Having  considered all the circumstances in this case I see no reason to depart from the normal practice that costs follow the event.  I therefore award costs against Lawrence J. F. Hohensee.

E. J. Knock
Delegate of the Commissioner of Patents

Solicitors for the applicant  :  Czaus Lawyers