Unilever Limited v. Colgate Palmolive Company
[1985] APO 15
•31 July 1985
In the Matter of the Patents Act 1952 - and - In the Matter of Application No. 508834 for a Patent in the Name of UNILEVER LIMITED - and - In the Matter of Opposition thereto by COLGATE PALMOLIVE COMPANY
DECISION OF A SUPERVISING EXAMINER OF PATENTS:
On 27 April, 1977, Unilever Limited lodged application No. 24611/77 which is an application for an invention entitled "Scouring Cleansers" and this application was advertised accepted on 3 April, 1980 under number 508834.Notice of Opposition under s.59 was lodged on 30 September, 1980 by Colgate- Palmolive Company. The opponent asked for, and was granted unopposed, a series of extensions of time for lodging evidence-in-support of this opposition until 30 March, 1984.
Meanwhile the applicant on 10 February, 1983 lodged a request under s.77 to amend the complete specification. The request was advertised on 17 March, 1983, and was opposed under s.82 by Colgate-Palmolive. On 28 October, 1983 the opponent lodged evidence in support of its s.82 opposition.
On 11 January, 1984 the opponent served on the applicant evidence- in-support of their s.59 opposition.-
On 21 February, 1984 the opponent withdrew its oppositions under s.59 and under s.82.
On 3 May, 1984 allowance of the request under s.77 was advertised.
After amendment claims 1, 4 and 6 read as follows:
"1. A scouring cleanser comprising a surfactant and an abrasive powder, said abrasive being calcite and said abrasive powder having an average particle size from 15 to 70 microns whose particles less than 10% by weight are of size above 150 microns and less than 20% by weight are of size below 10 microns, said abrasive powder having a Molls hardness in the range of from 1 to 4, the abrasive powder having a particle size distribution curve within the area bounded by the two curves Y of the accompanying diagram.
4. A cleanser according to any preceding claim, in which the abrasive powder contains substantially no particles of size below 1 micron.
6. A cleanser according to any preceding claim, in which at least 40% by weight of the abrasive powder is of particle size in the range from 15 to 70 microns."
In a letter dated 12 April, 1984 the applicant was informed:
"The Commissioner, in the public interest, has to consider whether there is anything which would constitute a bar to sealing a patent on application No. 508834 before the application proceeds to sealing. In this regard the Commissioner considers that the application does not comply with Section 40.
In order to assist the applicant decide its course of action, the following explanation is submitted regarding the grounds of objections:
(1) Claims 1 and 6 are not clear because there is internal conflict within these claims. Thus the claims claim an "abrasive powder having an average particle size from 15 to 70 microns" and also claims "the abrasive powder having a particle size distribution curve within the area bounded by the two curves Y of the accompanying diagram". The specification on page 4, lines 5 to 19 indicates that on the particle size distribution curve the average particle size is the size "at which 50% by weight of the particles are larger and 50% are smaller". The range of average particle size bounded by the two curves Y is 20 microns and 64 microns.
(2) Claim 1 is also not clear because it claims that "particles less than 10% by weight are of a size above 150 microns" whereas within the area bounded by the two curves Y there are no particles with a particle size above 140 microns.
(3) Claim 4 is redundant as it claims that the "abrasive powder contains substantially no particles of size below 1 micron" whereas the minimum particle size defined by the two curves Y, and introduced into claim 4 by its appendancy to claim 1, is 2.5 microns.
(4) Finally the best method of performing the invention is not described. The invention is now restricted to using calcite as the abrasive and the only examples which use calcite are examples 5 to 13. Examples 6 to 9, 12 and 13 use the calcite used in example 5 and examples 10 and 11 use ground marble which is a calcite material. The calcite used in example 5 has a particle size distribution curve "which is shown in the diagram (page 10, line 12) and is not "within the area bounded by the two curves Y of the accompanying diagram". A similar argument applies to the particle size distribution curves (page 13, lines 25) of the ground marble used in examples 10 and 11."
The letter gave the applicant 60 days in which to respond. No reply was received and a similar letter was sent to the applicant on 29 June, 1984, which included an offer to give consideration to any extension of time which the applicant might request within which to be heard on this matter; on 27 December, 1984 a further letter was sent to the applicant advising that in the absence of any response the Commissioner would refuse to seal a patent on the application. No response has been received.
It is well established that the lodgement of a notice of opposition intercepts the applicant's right to a grant and this imposes upon the Commissioner a duty of hearing and deciding the opposition (Ex Parte Weiss 61 CLR 240 at page 259). It is also apparent that the Commissioner does not have an imperative duty to grant a patent if the patent would be void when sealed, even if the applicant appears to have complied with the terms of the Act (Tate v. Haskins 53 CLR 594 at pages 611 to 612).
The Commissioner in April 1984 considered that the application did not comply with section 40, for the reasons set out above. These reasons still apply. I therefore refuse to seal a patent on Application No. 508834.
J.L. Roveta
Supervising Examiner of Patents
31 JUL 1985
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