Spartaflex Pty Limited Summary

IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Spartaflex Pty Limited [2015] APO 11

Patent Application: 2011100191

Title:Flexible hose

Patentee:  Spartaflex Pty Limited
Delegate:  R Subbarayan
Decision Date:  20 March 2015
Hearing Date:  Written submissions were due by 12 March 2015, but were not filed

Catchwords: PATENTS - re-examination - lack of novelty and innovative step - patent revoked

Representation: Patent applicant: Ahearn Fox

IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Patent Application: 2011100191

Title:Flexible hose

Patentee: Spartaflex Pty Limited
Date of Decision: 20 March 2015
DECISION
I revoke innovation patent 2011100191.
REASONS FOR DECISION

The Commissioner issued a re-examination report on 26 September 2014 in relation to innovation patent 2011100191. The report stated that all claims lacked novelty (and innovative step) in the light of 5 prior art documents. The report stated that the patentee had two months to respond, otherwise proceedings for revocation would be initiated. On 26 November 2014, the agent for the patentee requested an additional month to respond as they had not received instructions from the patentee. The Commissioner re-issued the re-examination report as a new re-examination report on 2 December 2014 again giving the patentee two months to respond. As no response was filed, a Senior Examiner informed the patentee that a hearing would be conducted based on written submissions, and the patentee was allowed one month to file submissions or propose amendments. No submissions or amendments were filed.
Specification
The specification relates to a flexible hose for transporting air-conditioning fluids in domestic structures. Claim 1 reads as follows:
Flexible hose including:
a core layer having a lumen extending axially therethrough and an outer surface, the core layer being formed from flexible material suitable for contact with domestic air conditioning refrigerant fluids;
an adhesive layer formed onto the outer surface of the core layer is sufficient coverage to provide an adhesive layer;
a protective layer formed onto the adhesive layer, the protective layer being formed from flexible, compressible and heat insulating material and having an outer resilient surface;
a reinforcing layer formed from braided material onto the outer resilient surf ace to provide an outer reinforced surface; and
a finishing layer formed onto the outer resilient surface for protecting the reinforcing layer and retaining same in place on the protective layer.
Novelty
The re-examination report identifies 5 prior art documents that are stated to destroy the novelty of the claimed invention and provides a detailed explanation of where each of the claimed integers can be found in each of these 5 documents. The 5 documents and the claims that are stated to be anticipated are as follows:
D1 : US 5016675 A               - Claims 1-3, 5
D2 : US 4950436 A               - Claims 1-5
D3 : US 4209042 A               - Claims 1-3, 5
D4 : US 4842024 A               - Claims 1, 3-4
D5 : WO 2011/018904 A1     - Claims 1-5
I have reviewed the objections relating to each of these documents and I am satisfied that they are validly taken and provides sufficient explanation to support the rejection under novelty.
Innovative step
Each of documents D1 to D4 discloses a device having all of the features of the claims identified previously, for the same use. It follows that there is no innovative step.
Conclusion
The claims lack novelty and/or innovative step in the light of each of the 5 prior art documents. The patentee has not proposed any amendments, and has also not provided any submissions for consideration. I conclude that the patentee has lost interest in the innovation patent. Consequently there are no reasonable prospects that amendments would be filed, so I do not consider it necessary to consider whether to direct amendments. I will revoke the innovation patent.
R Subbarayan
Delegate of the Commissioner of Patents

Spartaflex Pty Limited sought to protect its invention with an Australian innovation patent. The invention was a flexible hose for transporting air-conditioning fluids in domestic structures. The application was examined and a re-examination report issued by the Commissioner found that the invention lacked novelty and innovative step. The patentee failed to respond to the report and subsequently failed to file submissions or propose amendments in response to the Commissioner's notice of a hearing. The Commissioner revoked the patent on the basis that the claims lacked novelty and innovative step in light of prior art documents and that the patentee had not proposed amendments or provided submissions.

The court was required to decide whether the claims of the patentee's innovation patent were novel and exhibited an innovative step over the prior art. The Commissioner had found that the claims lacked novelty and innovative step. The patentee failed to respond to the Commissioner's re-examination report and did not file submissions or propose amendments in response to the Commissioner's notice of a hearing. The court had to decide whether the patentee had lost interest in the patent and whether there were reasonable prospects that amendments would be filed.

The Commissioner found that the invention lacked novelty and innovative step over the prior art documents identified in the re-examination report. The patentee did not respond to the report or file submissions or propose amendments in response to the Commissioner's notice of a hearing. The Commissioner concluded that the patentee had lost interest in the patent and that there were no reasonable prospects that amendments would be filed. The court agreed with the Commissioner's findings and revoked the patent.

The court revoked the innovation patent and ordered that it be removed from the Register of Patents.

Spartaflex Pty Limited

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