Razer Industries Pty Ltd v Robert R. Law - [2010] APO 13

ABSTRACTS OF DECISIONS
DECISION OF A DELEGATE OF THE COMMISSIONER OF PATENTS
Application : No. 784051 in the name of Robert R. Law

Title: CONVEYOR BELT CLEANER

Action: Request by RAZER INDUSTRIES PTY LTD for dismissal of an opposition by ROBERT R LAW to an application under Regulation 22.21 by RAZER INDUSTRIES PTY LTD for a licence

Decision: Issued 13 August 2010.
Abstract

The request for dismissal of the opposition was unsuccessful.
Following comments in HRC Project Design Pty Ltd v Orford Pty Ltd [1997] APO 12, it was found that each ground presented was a valid ground on which to oppose an application for a licence.
It was clear from the particulars what case the patentee was intending to run. However, relevant particulars present in the Statement were interspersed with other particulars that seem unnecessary or irrelevant. A direction was made for the patentee to provide, within one (1) month of the date of this decision, further and better particulars which explain the relevance of the individual particulars to the opposition.
An award of costs is not appropriate. Consequently, each party is to bear its own costs in this matter.
PATENTS ACT 1990
DECISION OF A DELEGATE OF THE COMMISSIONER OF PATENTS
Re:Patent Application No. 784051 by Robert R Law and a request by RAZER INDUSTRIES PTY LTD for dismissal of an opposition by ROBERT R LAW to an application under Regulation 22.21 by RAZER INDUSTRIES PTY LTD for a licence

BACKGROUND

Patent 784051 ceased for failure to pay the renewal fee due on 27 September 2007. On 17 August 2009, the patentee (Robert R Law) filed an application for a 23-month extension of time under Section 223 to pay the renewal fees that had been due on 27 September 2007 and 27 September 2008. The application was also accompanied by the fee that was due to be paid on 27 September 2009. The section 223 application was advertised for opposition purposes on 17 September 2009. No opposition was filed and the extension of time was granted on 27 October 2009. As such, the patent was restored. The next renewal fee is due on 27 September 2010.
Following the restoration, applications under regulation 22.21 for the grant of a licence were filed by Tuffstuff (Qld) Pty Ltd (“Tuffstuff”) on 23 December 2009 and Razer Industries Pty Ltd (“Razer”) on 18 February 2010. These applications were served on the patentee on 4 January 2010 and 18 February 2010 respectively. The patentee filed an opposition to each application on 4 February 20101 and 18 March 2010 respectively. Following a decision by the Commissioner’s delegate (see Razer Industries Pty Ltd v Robert R. Law (CORRECTED VERSION) [2010] APO 8), Tuffstuff and Razer served their respective applications of a licence on each other. Neither party filed an opposition to the other party’s application. I also note in passing that that, on 27 July 2010, another application for a licence was filed by Convatech Queensland Pty Ltd (“Convatech”). This application has also been opposed by the patentee. As the Tuffstuff and Convatech applications are not relevant to my consideration of this matter, I will not mention them any further.
With respect to the opposition to Razer’s licence application, the patentee served their Statement of Grounds and Particulars (“the Statement”) on 4 May 2010. On 4 June 2010 Razer requested dismissal of the patentee’s opposition.
The hearing took place in Canberra on 21 July 2010. The patentee was represented by Julian Cooke of counsel, assisted by Rohan Singh and Simon Williams of Spruson and Ferguson Lawyers. Razer was represented by Adam Luxton, patent attorney of Fisher Adams Kelly, Brisbane. Both parties appeared by phone. The hearing was also observed (via phone) by Jonathan Lewis, patent attorney, and Helen Wang, technical assistant, of Cullens, Brisbane, who represent Tuffstuff.
In this decision, given the nature of the matter, Razer is considered to be the “applicant” while the patentee is (unlike the usual situation) the “opponent”.
THE LAW ON DISMISSAL
Dismissal of an opposition is provided for by regulation 5.5 of the Patents Regulations, which states:
5.5 (1)   An applicant may:
(a)within 1 month of being served with a copy of a statement by an opponent under paragraph 5.4(a); or
(b)if the complete specification in relation to an opposed application is re-examined under subsection 97(1) of the Act – within 1 month from the day when the re-examination is completed under regulation 9.5;
request the Commissioner in the approved form to dismiss the opposition.
(2)   As soon as practicable after a request is made, the Commissioner must inform the opponent of the request having been made.
(3)   The Commissioner may dismiss the opposition whether or not the applicant has requested dismissal of the opposition.
In the present case Razer requested for dismissal within one month of being served with a copy of the Statement by Law. The Commissioner informed Law of the request on 23 June 2010. Consequently the procedural prerequisites for dismissal have been satisfied.
Deciding Whether to Dismiss
The Commissioner developed an approach to dismissal based on the approach taken by the courts in exercising their powers to summarily determination. In this regard, the Commissioner took guidance from the approach laid down in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125. The Federal Court approved this approach in Stack v Commissioner of Patents [1999] FCA 148 clearly indicating that the Commissioner should interpret dismissal under regulation 5.5 in the same way as summary judgment by a court. The Federal Court’s approach is governed by section 31A of the Federal Court of Australia Act 1976 (“Federal Court Act”).
In Les Laboratoires Servier v Apotex Pty Ltd [2008] APO 11 the delegate noted that a change had been made to section 31A since General Steel (supra) and Stack (supra) which meant that:
“the principles set out in General Steel (supra) are not given "canonical force" in summary dismissal proceedings (Batistatos v Roads and Traffic Authority of New South Wales (2006) 227 ALR 425 at 427). Rather, a proceeding may be dismissed where a party has "no reasonable prospect of successfully prosecuting the proceeding" (see for example Garrett v Macks [2006] FCA 601, White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511, Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352, Rogers v Asset Loan Co Pty Ltd & Ors [2007] FCA 195, Vans, Inc. v Offprice.Com.Au Pty Ltd [2006] FCA 137, E. & J. Gallo Winery v Lion Nathan Australia Pty Limited [2008] FCA 136, and Alphapharm Pty Ltd v Merck & Co Inc [2006] FCA 1227).”
As noted in the Servier decision, a similar approach is also applied in England and Queensland. It seems clear that Parliament has decided that the approach to summary judgment in all federal courts should be the same, and that the same approach applies to all matters (not just to migration cases).
The delegate concluded in Servier that several key principles flowed through to patent oppositions from the changes to s 31A of the Federal Court Act and the guidance provided by the above decisions:
·An opposition need not be “clearly untenable” or “manifestly groundless” in order for it to be dismissed. An opposition may be dismissed if it is considered to have no reasonable prospects of success.
·In determining whether or not there is a reasonable prospect of success, consideration is given as to whether there is a real rather than fanciful issue to be decided. The onus will initially be on the applicant to show that the opposition has no reasonable prospects of success, but the onus may shift to the opponent to explain its case if a real issue is not self-evident. This will not involve an in-depth consideration of the substantive opposition, but may involve sufficient analysis to determine if a prima facie case has been established.
·A dismissal will generally be inappropriate where expert evidence is required to determine an issue. However, this does not preclude dismissal of an opposition where there is a clear deficiency in the case to be argued, such as a technical divergence of a citation and the application or where an opposition involves issues of construction and expert evidence is not necessary to clarify technical terms or other matters that are in doubt.
·Evidence of an “ambivalent character” will generally be sufficient to establish a reasonable prospect of success. However, if the evidence is only one-way, or can clearly lead only to a single conclusion, then a proceeding may be dismissed. If no particulars have been provided in relation to a ground of opposition then it may be considered to have no reasonable prospects of success.
·Care must be taken not to cause an injustice to a party by dismissing an opposition.
The Stack case was explicit in approving the adoption of court practices when considering dismissal. The practice of all federal courts has been altered by Parliament, and it would be strange indeed if Parliament intended that a different approach should apply in federal tribunals. I consider that it is undeniable that the Commissioner should follow the clear shift that applies in all federal courts, and apply the practice in section 31A of the Federal Court Act.
The effect of section 31A is that the previous test of whether an opposition is obviously or manifestly groundless or untenable has been relaxed slightly, and instead the question is whether there is no reasonable prospect of success (see the cases cited in the Servier decision). This is the approach that I will apply in the present case.
THE LAW ON APPLICATIONS FOR A LICENCE
In the present case, it is useful to also set out the law surrounding applications for licences. These matters require the consideration of section 223(9) and (10) and Regulation 22.21, which relevantly provide:
223     (1) …
…
(9)Where the Commissioner grants:
(a)       an extension of more than 3 months for doing a relevant act; or
(b)an extension of time for doing a prescribed relevant act in prescribed circumstances;
the prescribed provisions have effect for the protection or compensation of persons who, before the day on which the application for extension of time is advertised under subsection (4), exploited (or took definite steps by way of contract or otherwise to exploit) the invention concerned because of the failure to do the relevant act within the time allowed, the lapsing of the patent application or the ceasing of the patent, as the case may be.
22.21   (1) …
(2)Persons who availed themselves of or exploited, or took definite steps by contract or otherwise to avail themselves of or exploit, inventions:
…
(c)in the case of inventions to which subsection 223 (9) of the Act applies — within the period of time extended under that subsection;
may apply, in the approved form, to the Commissioner for the grant of licences to exploit the inventions.
…
(4)A person on whom a copy of an application has been served may oppose the grant of the licence.
(5)The Commissioner, if reasonably satisfied that the application should be granted, must grant a licence to the applicant on such terms as the Commissioner thinks reasonable.
The Statement of Grounds and Particulars
The Statement sets out 9 grounds and has 30 paragraphs setting out particulars, although it has to be noted that 6 of those paragraphs have the “particular” of “Further particulars may be provided”. The grounds are as follows:
“1.The Applicant did not exploit (or take definite steps by way of contract or otherwise to exploit) any invention the subject of the Patent within the period of time extended under Section 223(9) or before the day on which the Opponent's application for extension of time in which to pay the renewal fees in respect of the Patent was advertised.
2.The Applicant did not avail itself of, or take definite steps by contract or otherwise to avail itself of, any invention the subject of the Patent within the period of time extended under Section 223(9) or before the day on which the Opponent's application for extension of time in which to pay the renewal fees in respect of the Patent was advertised.
3.The Applicant did not exploit (or take definite steps by way of contract or otherwise to exploit) any invention the subject of the Patent within the period of time extended under Section 223(9) or before the day on which the Opponent's application for extension of time in which to pay the renewal fees in respect of the Patent was advertised because of the Opponent's failure to pay renewal fees in respect of the Patent.
4.The Applicant is not entitled to protection or compensation within the meaning of Section 223(9).
5.The Commissioner cannot be reasonably satisfied that the Opposed Application should be granted.
6.The Commissioner does not have the power to grant a licence in the terms sought in the Opposed Application.
7.The grant of the licence sought in the Opposed Application would not protect or compensate the Applicant within the meaning of Section 223(9) but rather would provide it with a windfall not contemplated under the Act,
8.The terms of the licence sought by the Applicant in the Opposed Application are not reasonable and, therefore, the Commissioner should not grant a licence on those terms or at all.
9.The circumstances surrounding the Opponent's failure to pay the renewal fees and the lapsing of the Patent do not justify the grant of any licence to the Applicant or, alternatively, do not justify the grant of a licence to the Applicant on the terms sought in the Opposed Application.”
At the hearing the patentee formally withdrew grounds 7 and 9.
It is important to note that Regulation 22.21(4) does not set out any specific grounds for opposing an application under regulation 22.21(2). As such, there is no guidance in the legislation as to what grounds a licence application can be opposed on. However, in HRC Project Design Pty Ltd v Orford Pty Ltd [1997] APO 12; (1997) AIPC 91-362; 38 IPR 121 it was said by the Deputy Commissioner when determining a licence application that:
“the issues that I need to consider to determine the present application are:
·was there relevant exploitation of the invention?
·should a licence be granted? and, if so
·on what terms?”
I believe that this statement can be used to determine, in a general sense, the grounds that are available.
Submissions
Razer submitted that, for the patentee to be successful in opposing the licence application, he had to demonstrate that the Commissioner could not be reasonably satisfied that Razer availed themselves of or exploited, or took definite steps by contract or otherwise to avail themselves of or exploit, the invention for which they are seeking a licence. On that basis, Razer submitted that grounds 1–5 formed a proper legal basis for opposing their licence application. However, Razer submitted that the particulars associated with those grounds presented no material facts in support of those grounds. Razer drew an analogy for this situation with an opposition under section 59 where the particulars for the ground of a lack of novelty simply indicated that the claims were not novel and leaving it at that. Given this situation, they submitted that the grounds must be dismissed (following Mobay Corporation v The Dow Chemical Company (1992) 24 IPR 379).
With respect to grounds 6 and 8, Razer submitted that, as the terms of any licence granted is a matter for the Commissioner, they cannot be a ground of opposition.
The patentee submitted that each ground is based on the Patents Act and Regulations. They indicated that grounds 1–4 related primarily to the wording of section 223(9), ground 5 related to regulation 22.21(5) and grounds 6 and 8 arose as the patentee disputed that the Commissioner did not have the power to grant a retro-active or backdated licence as requested by Razer.
DECISION
Grounds
I think it can be said with confidence that grounds 1–5 have been conceded by Razer to be valid grounds by which an application for a licence could be opposed. I agree. They conform to the first two points cited above by the Deputy Commissioner in HRC (supra). The issue lies in whether the particulars present a case which has no reasonable prospect of success. I will deal with that later.
The dispute over grounds was confined to grounds 6 and 8. These grounds relate to the terms that the Commissioner can impose if granting a licence. As noted above, Razer submitted that the terms of any licence granted is a matter for the Commissioner. It is nothing that the patentee can oppose on. I disagree. Firstly, it is conceivable that a patentee may agree that a licence should be given, but disagree on the terms proposed by the licence applicant. I asked Razer during the hearing that, given this situation, there was a potential for a dispute to arise over the terms and, if so, why could the patentee not oppose the grant of the licence on the basis of the terms? Razer responded that, given that provisions were a protection of rights created when a licence applicant exploited an invention while the patent was not in force, those rights were a matter between the licence applicant and the Commissioner. I do not believe that this is correct. It if were truly a matter solely between the licence applicant and the Commissioner, the regulations would not provide for an opportunity for other parties (particularly the patentee) to oppose the granting of the licence. Secondly, noting the comments from HRC above, it is clearly something that can be (and has been) decided by the Commissioner in the context of an opposition to a licence application. To my mind, it must follow that an objection to the terms can be a ground of the opposition.
It may appear that this approach could result in a “free-for-all” insofar as grounds for an opposition to a licence application go, but this is not the case. As was noted by the Deputy Commissioner in HRC:
“Regulation 22.21(4) does not set out any specific grounds for opposing an application under reg 22.21(2), although they clearly must relate to the basis for granting a licence.” (my emphasis)
Clearly there are limits.
Particulars
The main issue in this matter was whether the particulars set out a case that was merely “fanciful”.
Taking particulars 1–9, which are explicitly listed as particulars for grounds 1–3, these are:
“1.The extension of time granted under Section 223(9) for which the Opponent was to pay the renewal fees in respect of the Patent was from 27 September 2007 to 27 August 2009.
2.The Opponent’s application for an extension of time in which to pay the renewal fee was advertised in the Australian Official Journal of Patents on 17 September 2009.
3.Australian Patent No. 784051.
4.The Opposed Application including:
(a)that it does not identify the invention in the Patent that the Applicant is claimed to have exploited during the relevant period including by reference to any claims of the Patent;
(b)that it does not identify with any particularity the alleged acts of exploitation including the dates it is alleged that those acts occurred;
(c)that it does not claim that the alleged acts of exploitation were carried out by the Applicant because of the Opponent's failure to pay renewal fees in respect of the Patent.
5.The Applicant having not filed any evidence in support of the Opposed Application.
6.The "Replication Agreement" between the Applicant and Tuffstuff (QLD) Pty Limited ("Tuffstuff) dated 1 September 2008.
7.Declaration of Amy Joy Griffin dated 1 May 2010 filed in the matter of the Application for a Licence to exploit the invention described in Australian Patent No. 784051 by Tuffstuff.
8.Correspondence between representatives of the Opponent and the Applicant and between the Opponent and Tuffstuff including:
(a)4 March 2010 letter from Cullens to the Commissioner of Patents.
(b)18 March 2010 letter from Cullens to the Commissioner of Patents.
9.Further particulars may be provided.”
These particulars are also incorporated by reference into grounds 4, 5, 6, and 8.

Razer submitted that the particulars set out no facts that were material to a ground of the opposition. In their submission, particulars 1, 2 and 3 simply set out the length of extension applied for under section 223, the date of advertisement of that extension and identified the patent, while particulars 6, 7 and 8 set out facts in support of the application, not the opposition. Razer submitted that particulars 4 and 5 went to deficiencies in the licence application and provided no material facts in support of the ground that Razer had not exploited the invention.
In this case, in calling for “material facts”, I believe that Razer is asking for more than is necessary to be supplied in a Statement. To me the situation is analogous to particulars often associated with the ground of lack of inventive step in an opposition under section 59. These particulars often assert certain things to be common general knowledge, but provide no information to support that. However, it clearly highlights what case the opponent is intending to put forward.
Taking particulars 4 and 5 to start with, it seems clear to me that the opponent is asserting that the Commissioner cannot be reasonably satisfied that Razer has exploited the invention because they have not supplied any evidence that in fact they have exploited the inventions. It also came out in the submissions of the patentee that the patentee will be arguing that Razer did not, to take the words of regulation 22.21(2), “avail themselves” (my emphasis) of the invention. Rather they were acting in accordance with a “Replication Agreement” – hence the mention of the “Replication Agreement” in particular 6.
I do not see this argument as being “merely fanciful” having “no reasonable prospects of success”. While it must be said that the particulars do leave a lot to be desired in the sense that their relevance is not immediately apparent (e.g. the identification of the patent in particular 3 and the relevance of the “Replication Agreement” in particular 6), this does not change my conclusion. I cannot conclude that grounds 1–5 have no reasonable prospects of success and I will not dismiss them.
With respect to grounds 6 and 8, the same reasoning applies. The patentee pointed out, as noted in particulars 18–20 at least, that they were going to argue that the Commissioner did not have the power to issue a licence that was “retro-active or back-dated”. They noted that, while Razer had applied for a licence in the terms as that referred to in HRC, the issue of whether back-dated licences could be issued by the Commissioner was never raised in that case. In addition, the patentee argued that the terms of the licence sought would permit Razer to obtain a licence for an exploitation that they did not undertake while the patent was not in force. This is set out in particular 24 at least. To my mind, these are not fanciful issues. I cannot say with any certainty that this argument has no reasonable prospects of success. I will not dismiss these grounds.
Just to clarify, I am not saying that the opposition will definitely succeed. It may turn out in the fullness of time that the patentee fails in the substantive opposition. However, that is a matter for the substantive hearing. All I am saying at present is that it cannot be said that the grounds have no reasonable prospects of success.
Further and Better Particulars
The patentee noted in its submissions that Razer’s request for dismissal would appear to be a request for further and better particulars. In this respect they relied upon a declaration made by Rohan Singh on 20 July 2010 (the Singh declaration). This declaration exhibited correspondence between the patentee and Razer which showed that Razer no longer opposed grounds 1–3 on the basis that they were not grounds, but maintained that the grounds were not adequately particularised. I do not agree with the patentee’s conclusion. It is clear from the authorities that inadequately particularised grounds can be dismissed.
However, while I have not dismissed the opposition, it has to be said that the particulars are interspersed with other particulars that seem unnecessary or irrelevant. As noted by Razer, particular 3 (identifying the patent by number), for example, seems to put forward no fact to support grounds 1–3. I do not know why it is there. Particular 6 puts forward the “Replication Agreement”, but I needed the submissions of the patentee before I could see its relevance. It would have been better if this information had been provided when the Statement was filed.
Also of relevance here is the amended licence application that Razer made on 28 June 2010 which extended the licence from just covering in-line blades for a conveyor belt cleaner to in-line blades and a conveyor belt cleaner. Razer contended that the amendment was necessary because the patentee had amended its infringement claim against Razer in the Federal Court.
The patentee had attempted to obtain a direction that required them to file an amended Statement prior to this hearing. However, they had been informed that such a direction could not be made until the dismissal application by Razer had been considered (in line with regulation 5.9(2)(a)). Razer had responded to the patentee’s request indicating that they had no objection to the patentee filing an amended Statement but wanted the amendments to be limited to being responsive to the amendments Razer made to its licence application. They did not want the patentee being given an opportunity to amend the Statement to address the “serious deficiencies identified by [Razer] in its Request for Dismissal”.
Given that I have not dismissed the opposition I do not believe that Razer’s position with respect to limiting amendments to the Statement is sustainable. The “serious deficiencies” identified by Razer did not result in the patentee’s opposition being dismissed. However, it is clear that, at the very least, further and better particulars are needed to fully explain the relevance of the particulars to the opposition.
In my opinion, the patentee agrees with this position. The patentee clearly indicated at the hearing that information contained in the Singh declaration was going to be added to the particulars. The information in the Singh declaration relates to statements made in declarations filed in respect of the Federal Court action between these two parties which purport to report certain admissions by persons associated with Razer (and Tuffstuff). Moreover, in a letter dated 5 August 2010 the patentee indicated that it intended to amend the particulars of the Statement and attached a proposed amended Statement.
However, even if the proposed amendments were made to the particulars of the Statement, the additional information added does not fully explain the relevance of each particular to the opposition. Most of the particulars (new and old) simply list items (e.g. “Declaration of Amy Joy Griffin … ” or “Correspondence … including … 4 March 2010 letter from Cullens … ”) with no further explanation. What is it about the declaration/letter that is relevant to this opposition? The Statement as proposed to be amended suffers from the same defects as the Statement currently on file.
In the circumstances, I direct:
That the opponent (the patentee) files, within one (1) month of the date of this decision an amended Statement of Grounds and Particulars. The amended Statement of Grounds and Particulars must provide further and better particulars which explain the relevance of the individual particulars to the opposition.
In the event that the above direction is not complied with in the given time period, the Commissioner will give a direction that the relevant ground of opposition will not be available for the opponent to argue at the hearing of the opposition.
Evidentiary timetable
At the hearing there was discussion about the evidentiary timetable as the time period for serving evidence in support was set to expire on 4 August 2010. Guidance was requested given that this decision could not have been issued before that date and it was not clear what effect this decision would have on the need to serve evidence in support. I asked all the parties present (including Tuffstuff) to provide submissions within a week on what should happen with the timetables. I indicated that I may be disposed to issue directions on the matter.
I received submissions from Razer and Tuffstuff. Both strongly submitted that I should not make any directions in regard to the time period for serving evidence in support. I did not see any submissions from the patentee. However, since the hearing the patentee has served requests to extend the time period for serving evidence in support by one month for both of his oppositions to the licence applications by Razer and Tuffstuff. More importantly, on 5 August 2010 the patentee also supplied their complete evidence in support. While the extension requests have not been allowed as yet, absent any objection from Razer and/or Tuffstuff, it seems unlikely that the requests will not be allowed. In any event, even if the Commissioner decided that the patentee’s extension of time request should be refused, she has a long-standing practice of granting the “losing” party a short period of time (usually seven days) in which to serve whatever evidence they have to hand. In the present case, the evidence in support has been served. Given this fact and the Commissioner’s practice, the patentee’s evidence in support will be admitted to this opposition whether or not the patentee’s extension of time request is allowed. In the circumstances, the issue of directions is moot. I will not issue any directions relating to the evidentiary timetable at this point in time.
CONCLUSION
The request for dismissal is unsuccessful. I will not dismiss the opposition either entirely or in part. However, relevant particulars present in the Statement are interspersed with other particulars that seem unnecessary or irrelevant. Further and better particulars are needed to fully explain the relevance of the particulars to the opposition. Consequently, I have directed further and better particulars to be supplied within one month of the date of this decision.
COSTS
Razer’s submission was that costs should be awarded against the patentee because, regardless of the outcome, their request for dismissal was necessary given the deficiencies in the Statement as filed. The patentee submitted that, if I decided that all the grounds were to be maintained, regardless of the outcome vis a vis the particulars, the request for dismissal by Razer of the entire opposition would have been unsuccessful and the patentee would be entitled to costs. The patentee also noted the “novelty” of an opposition to a licence application and also asked for that to be taken into account in costs.
It is usual for costs to follow the event. In the present case, it is clear that Razer has not been successful in their request for dismissal. However, equally as clear is that the particulars supplied by the patentee are not adequate. Had the patentee taken more care when initially drafting his Statement, this action may not have been necessary.
Taking into account all these factors, I believe that an award of costs is not appropriate. Consequently, each party is to bear its own costs in this matter.
GREG POWELL
Delegate of the Commissioner of Patents
13 August 2010
Representation for Razer : Fisher Adams Kelly, Brisbane
Representation for the patentee : Spruson & Ferguson Lawyers, Sydney