VICTOR VRUBEL and DAN VRUBEL v John D Upham

[1996] APO 58

official notice

decision of a delegate of the commissioner of patents

Application  :          No.664804 in the name of VICTOR VRUBEL and DAN VRUBEL.

Title:          Gas Flow Control.

Action:          Application under subsection 223(2) to extend the time under regulation 5.3(1) for an extension of time to file a notice of opposition by JOHN D UPHAM.

Decision:          Issued            .

Abstract

In a previous decision the extension of time was refused and the parties given an opportunity to file written submissions on an award of costs.  Mr Upham filed an application with the AAT to review the decision so the award of costs was left until after the judgement was issued.  The application to the AAT was subsequently withdrawn.  Costs awarded against Mr Upham.

patents act 1990

decision of a delegate of the commissioner of patents

Re: Patent Application No.664804 by VICTOR VRUBEL and DAN VRUBEL and an application under subsection 223(2) for an extension of time to file a notice of opposition by JOHN D UPHAM.

background

I refused to extend the time for Mr Upham to file a notice of opposition in my earlier decision which was issued on 31 July 1996.  I also allowed the parties 14 days from that date to file written submissions on an award of costs.  The patent applicants filed a statutory declaration about an award of costs on 6 August 1996 but Mr Upham did not file any written submissions in the time I allowed.

Mr Upham filed an application with the Administrative Appeals Tribunal (AAT) to review my decision.  In a letter dated 6 September 1996 I wrote to both parties to explain I would not consider the issue of costs until “the AAT has issued its judgement”. Mr Upham subsequently withdraw the application and the AAT told the Commissioner’s solicitor the “Tribunal is taken to have dismissed the application without proceeding to review the decision”.  Therefore I can now make an award of costs in this matter.

I award costs against Mr John D Upham.

The parties may settle the issue of costs between themselves or a party may ask the Commissioner to tax the costs (the fee for taxing costs is presently $65).  I note the statutory declaration filed by the applicants on 6 August 1996 includes several items which are outside those specified in schedule 8.  For example item “c) professional services of Mr S Janda accredited interpreter” and item “d) lost income”.  I consider regulation 22.8(1) means Mr Upham should be given a reasonable opportunity to make submissions on these items if the applicants ask the Commissioner to tax these costs.

M Kendall
Delegate of the Commissioner of Patents.