TOMIKO KIKUKAWA

[1995] APO 52

official notice

decision of a deputy commissioner of patents

Application        :    No. 29566/92 in the name of Tomiko KIKUKAWA

Title:    AC, AC Communication Information System

Action:    Application filed under the PCT. Request under s.223 for an extension of time to enter the national phase.

Decision:    Issued            .

Abstract:    Extension refused.

The material filed by Ms Kikukawa indicated the possible existence of a relevant error or omission. However, extension refused as, despite repeated requests, she

-has not provided any declarations in respect of the material supporting her request for an extension of time; and

-in any event has not met the requirements for national phase entry.

patents act 1990

decision of a deputy commissioner of patents

Re:Patent No. 29566/92 in the name of Tomiko KIKUKAWA, and a request for an extension of time (s.223) to enter the national phase.

background

This matter concerns a request for an extension of time to enter the national phase. Since the request was filed, there have been several exchanges in correspondence wherein the Commissioner indicated he was not satisfied that the extension was justified. Thereafter the matter was set for a hearing in Canberra on 16 August 1995, at which the applicant (Ms Kikukawa) represented herself. In the days before the hearing staff from the Patent Office helped Ms Kikukawa find a Japanese translator who (as she required) was not of Japanese origin.

The invention of the application relates to an 'Alive Computer'. The search report and the preliminary examination report normally prepared under the PCT were not established by PCT/ISA/JP and PCT/IPEA/JP. The search report gives as the reason:

"Descriptions made on the specification, the claims and the drawings are extremely unclear."

and the preliminary examination report:

"The description, claims or drawings ... are so unclear that no meaningful opinion could be formed. The construction of "AC" is extremely ambiguous."

I have attempted to read the specification; it is difficult to understand. Recognising the potential for misunderstanding through poor translations, at the hearing I sought clarification through the interpreter of whether the reference to 'Alive Computer' was in fact a reference to a living computer (which was confirmed), and the use of the word 'soul'. From Ms Kikukawa's explanation, I understand that her Alive Computer relates to a person's soul, and to communication between humans and the universe. She also showed me an Alive Computer; it had the appearance of a mobile phone, which she stated had been modified in some manner.

Ms Tomiko Kikukawa filed her application under the Patent Cooperation Treaty on 1 Dec 1992 in Japan (application no. PCT/JP92/01573). The application claimed priority from an earlier Japanese application 4/50120, and claimed a priority date of 9 Jan 1992. Preliminary examination was demanded for the application; consequently, in accordance with regulation 8.1(4)(a), the time for entering the national phase in Australia expired on 9 August 1994.

On 1 August 1994 the Commissioner received two letters from Ms Kikukawa, regarding entering the national phase; one was dated June 12, the other July 1. There is no direct evidence of when these letters were posted; however at the hearing Ms Kikukawa indicated that all her material was sent to us by International Express Postage, which required only a few days for delivery, and that the dates on the letters were probably the dates the letters were given to her translator in Japan. I accept this, and conclude that while the letters were written at around the date indicated, they were not posted until around 27 July 1994.

The Commissioner responded on 3 August, outlining the requirements to enter the national phase. The letter observed that it was highly unlikely that she would meet the deadline of 9 August 1994, and enclosed an application form for a s.223 request, together with the advice that, to apply for the extension of time she would need to:

-comply with the requirements for entering the national phase eg file the translation, pay the fee, and supply an address for service;

-complete the request form;

-provide a statutory declaration setting out the grounds on which she based her request; and

-pay the fees to enter the national phase, and for the extension of time.

Subsequently Ms Kikukawa paid the extension of time fees on 10 Aug., applied for the extension of time on 19 Aug., paid the national hase entry fee on 11 Nov., and filed a translation on 15 November.

The things that Ms Kikukawa has not done at this time are:

-she has not yet provided an address for service in Australia;

-she has not provided a verified translation of the PCT specification (I particularly note here that the translation filed on 15 November has no certificate of verification, and is admittedly different to the PCT specification); and

-she has not provided a declaration in support of the s.223 request. She has however provided considerable material in support of her request.

These matters were consistently raised by the Commissioner in the course of the correspondence.

Supporting material

Ms Kikukawa has filed a voluminous amount of material in support of her request. The bulk of the material relates to a series of adverse events that have befallen her. She attributes these events as arising from her disclosing the concept of her invention to a Japanese company in 1989, and a subsequent apparent breach of confidence in her invention by that company. A small example only of her many misfortunes (which she says began at the time of the Gulf War) is:

-25 July 1991: "A frightfully large spider was planted in my room";

-10 Sept. 1991: "The Sprite in my refrigerator was poisoned";

-14 Sept. 1991, she was eating stewed fish that her sister had given her when she suddenly felt nausea and sick. A criminal broke into her house while she was taking a bath.

-26 May 1992, "I bought a package of 6 pieces of French Bread ... I ate the last piece of French bread while watching a soap opera depicting an immoral love affair between insurance salesperson ... and Kato Go on Nihon Television 04. After eating that last piece, I suddenly felt nausea, I stuck my forefinger into my throat, and I started vomiting desperately. This happened exactly at the same time as when on television Kato Go had been given a Japanese sweet cake from a child and started feeling sick immediately after that."

In summary, Ms Kikukawa perceives that "Japan itself is an organised crime syndicate", and there are evil forces at work against her. At the end of the hearing she referred to these matters, and specifically requested that I consider them. She stated that she was concerned that Japanese criminal elements and terrorists are in Australia, that she wants to have the problems she has been experiencing solved, and she hoped this hearing would solve these problems.

Decision

Section 223 of the Act is a general provision for granting an extension of time. That provision is conditional upon there being "an error or omission", or a "circumstance beyond the control" of the person concerned, whereby a relevant act that is required to be done within a certain time is not done within that time. In the present case the relevant person is Ms Kikukawa, and the relevant act is entering the national phase by the due date of 9 August 1994, which act required:

-providing a verified translation of her application [S.89(3), Reg 8.2(3)(c)];

-paying the prescribed fees [S.89(3)(b)]; and

-providing an address for service in Australia [Reg 8.2(3)(a)]

The material filed by Ms Kikukawa raises a wide range of matters that are clearly of great concern to her. However, whilst Ms Kikukawa would clearly like those matters to be resolved, this decision is necessarily limited to whether or not (having regard to all relevant circumstances) an extension of time to enter the national phase is justified. In this respect Ms Kikukawa advised at the hearing;

-she considered the 31-month time limit to enter the national phase [reg 8.1(4)(a)] to be a 'criminal' act;

-when she filed the PCT application, there were a number of annexes which the Japanese Receiving Office did not accept as part of the specification - the Japanese Government 'confiscated' them;

-she received the translation of the specification in March 1993;

-she wanted to change that translation to include material from the annexes, so that the invention would be better understood in English; and

-sometime after March 1993 someone stole her copy of the annexes, so that she was unable to include that material in the translation until a much later date.

Further;

-she did not want to submit the translation until she had an opportunity to fully explain the criminal activities that she was aware of; and

-she felt that it would have been a crime on her part to conceal those criminal activities.

Also, she advised that the translation filed on 15 November was originally prepared by a translation service, and that she had made a number of changes to incorporate supplementary explanatory material. That is, the translation filed (which does not have a certificate of verification) admittedly is not a translation of her PCT specification.

It seems to me that whilst Ms Kikukawa has a wide range of issues that are of concern to her, she has not shown a causative relationship between those issues and her failure to enter the national phase by the due date. Consequently the vast majority of those issues provide no justification for an extension of time to enter the national phase.

However, Ms Kikukawa asserted that she had sent the translation to the International Bureau (IB) with an expectation that the IB would send it on to Australia. This is supported by a copy of a letter to the IB dated April 19, 1994 (which is said to have been mailed on May 2, 1994). The letter commences with a reference to a previous letter (a copy of which has not been provided) dated July 22, 1993 which made a special request concerning the submission of the translation, and states:

This request involved my wish that the International Bureau take responsibility in procedures to address each of the designated countries .... concerning the submission of the translation.

On page 7 the letter advises the IB that she hopes to send the translation to them by the end of June, and requests the IB send to each of the designated countries. Ms Kikukawa has not provided any correspondence in reply from the IB.

The submissions of Ms Kikukawa, supported as they are by this letter, are indicative that Ms Kikukawa may have had a misunderstanding or erroneous expectation of the operation of the International Bureau. I consider such a misunderstanding or erroneous expectation would constitute a relevant error or omission within the context of s.223. That is, grounds to enliven the operation of s.223 may exist.

However:

1. despite repeated requests, no declarations have been filed to support the s.223 request (as required by reg. 22.11);

1. despite repeated requests, Ms Kikukawa has not provided an address for service in Australia. There is nothing before me to suggest anything other than a deliberate decision by Ms Kikukawa not to provide such an address; and

1. the translation filed is (admittedly) not a translation of the PCT specification; nor has a certificate of verification of the translation been supplied (despite repeated advice that a verified translation has not been filed).

Ms Kikukawa has failed to provide any declarations in respect of the material supporting her request for an extension of time; in the absence of a relevant declaration I do not think that I can rely on the material she has filed to grant an extension.

If there is an error or omission, it is limited to issues surrounding the translation and possibly the payment of fees. There is no apparent error or omission surrounding Ms Kikukawa's (continued) failure to provide an address for service in Australia. That is, any error or omission does not extend to all the requirements for entering the national phase.

Even if I was to grant the extension sought, it would be of no effect, as the requirements for national phase entry have not yet been met - there is no address for service in Australia, and no verified translation of the PCT specification.

Finally, given the repeated requests in respect of these matters, I do not think it appropriate for me to allow still further time for compliance.

Conclusion

The vast majority of the issues set out in the material filed by Ms Kikukawa provide no justification for an extension of time to enter the national phase.

The material filed does indicate a possible error or omission arising from her expectations regarding the IB forwarding the translation; however no material in the form of declarations has been provided to support this, and I do not think I can rely on the material she has filed in the absence of a relevant declaration. And in any event, that error or omission does not address the reason for an address for service in Australia not being provided.

The requirements to enter the national phase are still not met - so that a grant of the extension of time would be ineffective.

These matters remain despite having been repeatedly raised in the correspondence regarding the s.223 request. In these circumstances I do not consider it appropriate to provide Ms Kikukawa still further time to comply with the requirements to enter the national phase, or to provide declarations in support of the s.223 request.

Accordingly, I refuse to grant the extension of time sought.

D. Herald
Deputy Commissioner of Patents