Pagoda Holdings Limited (Formerly Nomad Structures International Limited) v Tensile Structures Pty Ltd (Formerly Heyring Proprietary Limited)

[1993] APO 75

official notice

decision of a delegate of the commissioner of patents

Application        :  No. 575494 in the name of PAGODA HOLDINGS LIMITED

Title:  MODULAR TENT STRUCTURES

Action: S.59 opposition by TENSILE STRUCTURES PTY LTD; final decision following amendments.

Decision:  Issued            .  Application to proceed to sealing.

patents act 1990

decision of a delegate of the commissioner of patents

Re:Patent Application No. 575494 by PAGODA HOLDINGS LIMITED (formerly NOMAD STRUCTURES INTERNATIONAL LIMITED) and opposition under S.59 of the Patents Act 1952 by TENSILE STRUCTURES PTY LTD (formerly HEYRING PROPRIETARY LIMITED).

background

In my decision in this matter dated 14 April 1992, I found the opposition succeeded in that the specification did not comply with S.40 and that one claim was not novel. I gave the applicant an opportunity to propose amendments to overcome these defects.  On 5 May 1992 notice of appeal (No WAG 55 of 1992) was filed, by the opponent, in the Federal Court of Australia. On 12 June 1992 the patent applicant requested leave to amend the specification; and in this light the Federal Court decided that it was inappropriate to continue with the appeal proceedings until the amendments were dealt with.

When a decision has been appealed, the Commissioner will, with the agreement of the parties, consider any proposed amendments, but will not allow them unless all parties and the court agree to them being allowed.

In this case, the parties agreed to allowance of the amendments, on 17 February 1993 the court ordered that the appeal be discontinued, the request to amend was advertised on 25 February 1993, and allowance of the amendments was advertised on 1 July 1993. Also, the opponent has not indicated that it seeks to be further heard in the matter of the opposition.

decision

I am satisfied that the amendments remove the grounds for my earlier findings and I now consider that there is no lawful objection to the application and complete specification. Thus I direct that the application and specification as amended proceed to sealing.

John Welsh
Delegate of the Commissioner of Patents

Patent attorneys for the applicant  :  Davies Collison Cave, Melbourne

Patent attorneys for the opponent   :  Watermark, Perth