Vulcan Australia Limited v Braemar Appliances Pty Ltd

[1985] APO 18

In the Matter of the Patents Act 1952 - and In the Matter of the Extension of Term of Petty Patent Nos. 539479 and 539480 both in the Name of VULCAN AUSTRALIA LIMITED - and - In the Matter of Notices under Section 688(3) by BRAEMAR APPLIANCES PTY. LTD.

REASONS FOR DECISION BY A SUPERVISING EXAMINER OF PATENTS:

Decision

On 9 September, 1985 I issued a decision in which I granted extensions of the term in respect of petty patents 539479 and 539480, and I indicated reasons for my decision would issue later. Following are those reasons.

Background

Two applications for petty patents were filed by Vulcan Australia Limited on 12 July, 1984 for inventions entitled "GAS HEATERS"., Both applications were made under the provisions of section 51 of the Act in respect of Australian patent application 24254/84. Application 24254/84 originated as an application for a standard patent accompanied by a provisional specification on 7 February, 1983 and was completed on 7 February, 1984. As the claim of each petty patent specification is fairly based on matter disclosed in that provisional specification, the priority date of these claims as determined by section 45A is 7 February, 1983. A petty patent was sealed on each petty patent application on 6 September, 1984.

On 2 August, 1985, the patentee made applications in accordance with sub-section 68B(l) of the Act for an extension of term of each-petty patent. In accordance with the provisions of sub-section 68B(3), solicitors acting for Braemar Appliances Pty. Ltd. filed on 5 August, 1985 notices in relation to each petty patent. Each notice lodged was accompanied by a STATEMENT OF FACTS (six sheets in each case) and identical copies of certain documents marked A to F referred to in each of the statements. The Statements were signed by the solicitors on behalf of Braemar. The patentee was furnished with copies of this material in accordance with sub-section 68B(7).

In accordance with practice dictated by sub-section 688(8) and regulation 85, both parties were offered a hearing and both indicated their desire to be heard. The hearing was held in Canberra on 3 September, 1985.

Mr. D. Shavin of counsel advised by Mr. G. Pryor, patent attorney of Davies & Collison, appeared for the patentee, and Mr. R. Macaw of counsel advised by Mr. L. Dyson, patent attorney of Edwd. Waters & Sons appeared for the informant.

The Specifications

Both petty patent specifications consist of identical wording apart from the consistory clauses and the respective claims. The same drawings also appear in each specification. The field of invention relates to gas heaters as summarised in the opening paragraph of each specification thus:

"This invention relates to gas heaters. The invention is especially, but not exclusively, applicable to domestic space heaters which incorporate a heat exchanger and fan for producing heated air which is circulated in a room. Heaters of this type are commonly arranged in a generally upright configuration and are known as wall furnaces."

The respective claims of the two petty patents read as follows:

Claim of Petty Patent 539479

"A wall furnace comprising an elongate upright housing with louvres in its front face, a gas burner, a generally upright heat exchanger within the housing, the burner being arranged to heat the interior of the heat exchanger, a fan for causing a flow of air adjacent to the heat exchanger, said flow of air being downwardly directed and a plate located between the heat exchanger and the front face of the housing, the plate serving in use to direct convection currents generated at the front face of the heat exchanger into the stream or streams of air induced to enter the housing by the fan."

Claim of Petty Patent 539480

"A gas heater comprising an elongate upright housing having openings in its front face, a gas burner, a generally upright heat exchanger, the burner being arranged to heat the interior of the heat exchanger, a fan for causing a flow of air which is downwardly adjacent to the heat exchanger and expelling said flow from the housing through openings located near the bottom of the front face of the housing said heater including a separating plate located between the heat exchanger and front face of the housing, the plate serving to direct convection currents generated at the front face of the heat exchanger into the stream or streams of air induced to enter the housing by the fan, and wherein the top of the heat exchanger opens into a flue and wherein the flue includes a down-draught opening through which in use wind induced down- draughts are directed, and wherein the separating plate is located relative to the down-draught opening so as to prevent, in use said convection currents entering said down-draught opening."

It is noted that each claim includes a feature of a plate serving to direct certain convection currents into the fan induced air stream entering the furnace housing. This feature is claimed by the patentee to embody the real nub of the invention in both petty patents.

The Notices and Statements of Facts

The statements of facts which accompanied the sub-section 68B(3) notices have a similar content. Each sets out in numbered paragraphs allegations or comment relating to fair basis of the petty patent claim, clarity of the claim and novelty of the claim together with statements concerning known devices or arrangements or matters of common general knowledge in the heating appliance field. As support for the attack on each claim on the basis of lack of novelty or obviousness, reference is made to certain "prior art wall furnaces" which are said to possess, firstly, plates acting in the manner of the feature of the "plate" in both petty patent claims, and secondly baffles acting to achieve the prevention of heat losses in the flue down-draught region as additionally defined in the claim of petty patent 539480. The statements identify these "prior art wall furnaces" in these terms:

"(i) "WF40" wall furnaces manufactured by Braemar Engineering Pty. Ltd. from March 1968. A promotional brochure describing the said well furnace is attached marked "A".

(ii) "D10" and "D11" wall furnaces manufactured by Braemar Engineering Pty. Ltd. from February 1971. A copy of promotional literature describing the said wall furnaces is attached marked H "B ,

(iii) "D12" wall furnaces manufactured by Braemar Appliances Pty. Ltd. from April 1974. A copy of promotional brochure describing the said wall furnace is attached marked "C".

(iv) "D27" wall furnaces manufactured by Braemar Appliances Pty. Ltd. from February 1980. A specification describing the said wall furnace is attached marked "D".

(v) "D37" wall furnaces manufactured by Braemar Appliances Pty. Ltd. from December 1981. A copy of specification describing the said wall furnace is attached marked "E".

(vi) The "Comfortaire Electric Space Heater", the "Vulcan Electric Heat Bank", the "IXL Electric Wall Furnace" and the "Rinnai Midi Bank Space Heater". Copies of promotional material describing the said heaters are annexed hereto marked "F"."

In relation to the copies of documents identified as A to F in the preceding statement, it is noted that documents B to E all comprise a "Specification" apparently produced by "The Australian Gas Association" for approval purposes which describes in some detail constructional characteristics of the respective appliances but, in the main, without reference to any drawings of the appliances. Document C additionally includes what appears to be a promotional brochure produced by Braemar. Each "Specification" bears a date identified as the "Date of Approval".

Additional Evidence

At the hearing, the informant tendered three additional documents as evidence in the matter. The first consisted of a single page Statutory Declaration by Peter Wainwright and annexure marked "PW1". The only paragraph of the declaration is as follows:

"I am and have been for eight (8) years employed by Braemar Appliances Pty. Ltd. as General Manager. I am an Air- Conditioning and Refrigeration Engineer and have been involved in the Appliance Industry in Australia for the last twenty- four (24) years. Now produced and shown to me and marked "PW1" is a copy of the Statement of Facts accompanying the notice given by Braemar Appliances Pty. Ltd. pursuant to S.68B(3) of the Patents Act 1952 in relation to Petty Patent 539479. To the best of my knowledge each of the facts therein set out is true."

The second additional document tendered was a second Statutory Declaration by Peter Wainwright in similar form to the first but relating to petty patent 539480 and the Statement of Facts filed thereto.

The third additional document comprised an Affidavit by James Carlton Lacey a retired chartered engineer who until his retirement in 1981 was employed for a considerable time by the State Electricity Commission of Victoria and between 1968 and 1981 was a development engineer "involved in the design and performance testing of electrical domestic appliances including space heaters". Since retirement he has been a consultant to several bodies. In his affidavit, Mr. Lacey discusses the petty patents in question, refers to general ducting and heating concepts and makes statements concerning matters of commonplace or conventional use in heating systems. Several exhibits to his affidavit include drawings of gas furnace appliances he had inspected, depicting a "Vulcan Gas Quasar" and a "Braemar D37" said to represent, respectively, the commercial embodiment of the petty patents, and a prior art device made by the informant.

A declaration by Mr. Pryor tendered at the hearing indicates that a copy of the additional evidence was received by him at about 5pm on Friday, 30 August, 1985. A copy of Lacey's affidavit was received at the Patent Office on 2 September, 1985.

Admissibility of the Additional Evidence

At the commencement of the hearing, Mr. Shavin for the patentee indicated that he objected to the lodgement of the additional evidence in these proceedings and wished to argue the question of its admissibility. Accordingly I permitted both parties to make submissions on this point.

In his submission Mr. Shavin referred to the time limit of 11 months stated in sub-section 68B(3) for lodging the notice and statement of facts on which the person giving notice relies. He referred me to the decision of the hearing officer in Re Application by Schmidt 1 IPR 519 and submitted that the present circumstances represented a stronger case for inadmissibility of this evidence than in the reported case. In this regard he indicated that the informant should have known of the petty patents from at least December 1984, when infringement proceedings had been commenced against it based on these petty patents, and certainly since March 1985 when Braemar filed a Defence and Counterclaim in relation to those proceedings, yet no explanation has been provided regarding the late filing of this material outside the 11 months set forth in sub-section 68B(3), i.e. after 6 August 1985. A further point raised was that due to the late service of the material on the patentee, there was insufficient time prior to the hearing to prepare answering evidence if that was required, and because the initial terms of the petty patents expired on 6 September there was every likelihood that grants of an extension of term may be delayed thus causing uncertainty in the public domain regarding the petty patents and possible prejudice to the patentee in its pending infringement proceedings.

Mr. Macaw's main argument concerned the language of sub-section 68B(3) together with the operation of regulation 19C and a comparison with usual litigation practice. He submitted that sub-section 68B(3) merely required a notice to be lodged accompanied by a statement of facts and that where an assertion was based on a published document, a copy of the document and declaration as required by regulation 19C was also required. He argued that the statement of facts should be considered as being separate from the evidence to establish those facts as it is in the ordinary course of litigation wherein a statement of claim sets out the material facts relied upon by a litigant and wherein the court is then usually requested to establish a timetable for the filing of evidence by the litigant and the other party. Accordingly he argued that a similar procedure should be followed in this action and submitted that either regulation 72 or 83 was available to the Commissioner to direct the course of the proceedings in relation to a section 68B action, particularly to permit the lodgement of evidence such as that in question.

A further argument by Mr. Macaw related to the public interest aspect involved in granting an extension of term of a petty patent. He argued that a strong public interest existed in requiring the Commissioner to determine an extension of term application based on all available information so that an invalid petty patent should not be extended to the detriment of the public. He submitted that the Wainwright declarations do no more than verify the statements of facts and supporting description of prior units lodged with the notices and that even without the verification, the Commissioner is obliged to consider those facts. With regard to the Lacey affidavit, he argued that it either confined itself to a description of particular units referred to in the statement of facts or alternatively dealt with matters of science which are so elementary that they scarcely need evidence.

The procedures to be followed in relation to an extension of tern of a petty patent are contained in section 68B and regulations 19C and 36A, there being no other specific provisions in the legislation. Sub-section 68B(3) reads as follows:

"(3) A person way, at any time within 11 months after the sealing of a petty patent, by notice in writing lodged at the Patent Office and accompanied by such documents (if any) as are prescribed, inform the Commissioner of any facts at the person asserts establish, in relation to the petty patent, any of the grounds set out in paragraphs 100(l)(a), (b), (c), (d), (e), (f) and (g)."

Regulation 19C provides as follows:

"19C(l) Subject to sub-regulation (2), a notice under sub- section 57(1) or 68B(3) of the Act shall be accompanied by a statement setting out the facts on which the person giving notice relies and, where an assertion is made under paragraph 57(l)(b) or sub-section 68B(3) of the Act based upon a document published in Australia, by -

(a) a copy of the document;

(b) a declaration establishing when and where the document was so published; and (c) if the document is written in a foreign language, a translation of the document into English authenticated to the satisfaction of the Commissioner.

(2) Sub-paragraphs (1)(a) and (b) do not apply where the published document is available in the Patent Office or in the library of the Patent Office."

It is noted that section 68B includes reference to informing the Commissioner of any facts" but does not contain any direct mention of "evidence In contrast it is worth noting the specific provisions in the Act and Regulations governing opposition proceedings such as opposition to the grant of a standard patent, particularly the notice and evidence stages (see section 59 and Part XIV of the regulations).

Clearly section 68B does not provide for the same type of "opposition" to an extension of the term of a petty patent as does the Act and Regulations elsewhere in relation to an application for a standard patent, the action under sub-section 68B(3) being more accurately an informant action. This, to my mind, is clearly evident from the very provisions of section 68B. What section 68B provides is that if a party gives notice under sub-section 68B(3), then the Commissioner is required to take the following action:

• forthwith notify the patentee of the facts included with the notice and furnish to the patentee copies of the notice and each document filed with the notice (sub-section 68B(7));

• shall grant an extension of the term if not satisfied that any ground set out in paragraphs 100(l)(b) to (g) exists, subject to first providing the informant an opportunity to be heard (sub-sections 68B(5) and 68B(8));

• may refuse to grant an extension of tern if satisfied that a ground set out in paragraphs 100(l)(b) to (g) exists, subject however to first providing an opportunity for the patentee to be heard (sub-section 68B(6) and regulation 85).

I should mention here that the hearing that sub-section 68B(8) allows to the person lodging the notice, and the hearing that regulation 85 allows to the patentee, are usually combined for the sake of administrative convenience with a view to enabling a speedy resolution of the matter.

When the course of action referred to in the preceding paragraph is appreciated, I believe the significance of the time period specified in sub- section 68B(3) becomes apparent. By permitting an informant a period of 11 months from the date of sealing of the petty patent within which to give notice and provide the statement of facts, an opportunity exists for the Commissioner, albeit in a short time period, to furnish material to the patentee, hear the parties if required, and if at all possible decide the application for extension before the expiration of the initial tern. It should be noted that the patentee is also constrained by the same 11 month period within which to apply for an extension of tern (sub-section 6BB(2)).

The informant provided no explanation for the late submission of the additional evidence other than to argue that sub-section 68B(3) only required the informant to file a notice and statement of facts, not necessarily evidence to establish the facts, within 11 months of the sealing. In my view this argument regarding the operation of the sub-section fails to have proper regard to the entire provisions of section 68B and requirements of regulation 19C, and furthermore appears to be based on an analogy with ordinary litigation procedures merely because sub-section 68B(3) uses the word "facts". Sub- section 68B(3) and regulation 19C in my view clearly requires an informant to file not only the notice but also a statement setting out the facts on which the person giving the notice relies, and moreover the facts must be such that they seek to establish in relation to the petty patent any of the grounds specified. The latter requirement to me is the clear meaning of the expression in sub-section 68B(3) "any facts that the person asserts establish"; it is the given facts which are to establish the grounds. I am therefore of the opinion that as used in section 68B, "facts" necessarily embraces any evidence that may be required to establish any of the grounds specified.

Accordingly, in my view, the Act and Regulations require an informant to provide to the Commissioner within 11 months of the sealing of the petty patent the notice under sub-section 68B(3) together with a statement of facts including any supporting evidence. I believe that if the Act or Regulations had intended that such supporting evidence, or that further facts or evidence could be submitted by the informant outside tie 11 month period specified in sub-section 68B(3), specific provisions would have been made to allow such a procedure. While it may be argued that regulations 72 or 83 could be applied in relation to proceedings under section 68B, I believe their use to permit the lodgement of evidence or further evidence by an informant outside the 11 month period would clearly disregard what in my opinion is the clear provisions of sub-section 68B(3) and intent of section 68B generally. In view of what I have said earlier, I do not consider the general intent of the legislation is such that an informant be permitted to lodge at any time beyond the 11 month period and up to the stage when a decision is made, either evidence or further evidence. Consequently I fail to see any reason for admitting the additional evidence, to the present proceedings under regulation 72.

There is of course also no specific provisions in section 68B or elsewhere in the Act or Regulations enabling the patentee to submit evidence to the proceedings. Nevertheless I think it can be easily seen that a patentee may consider it highly desirable to provide evidence to answer particular aspects of an informant's notice and statement of facts, for example to counter statements relating to the grounds specified in paragraphs 100(l)(e) and (g). In such circumstances a patentee should not be deprived a chance to answer contentious allegations by an informant and provide any answering evidence, and here I believe regulation 72 would be available for the Commissioner to suitably direct the course of proceedings to allow the patentee to prepare and file answering comments and evidence.

Both parties referred to the question of public interest. I believe there is a public interest in having before the Commissioner all the available facts affecting the validity of a petty patent before a decision is made in respect of extending its term. Against this, however, is the public interest (including the patentee's interest) in the extension being decided if possible before the expiration of the initial tern since any delay in deciding the matter may leave the public in a state of uncertainty as to the status of the patent and their rights. It is clear from the material before me that the informant in this case had known of the petty patents well in advance of the eleventh month from sealing, and given the nature of the additional evidence I consider the informant has been less than diligent in placing this evidence before the Commissioner. This view is reinforced if one compares the period of 11 months permitted an informant under sub-section 68B(3) in which to consider and file its notice and statement of facts including any supporting evidence, with a maximum period of 6 months, without any extensions, available under the Act and Regulations for an opponent to a standard patent to file its notice of opposition and its evidence in support. A further factor here of course is that significant delays may arise if the additional evidence were admitted to the proceedings since the patentee would clearly be entitled to properly consider the material and may wish to supply to the Commissioner any answering evidence it thought relevant or even seek to be further heard in the matter. Mindful of all these factors, I do not consider the public interest in having this additional evidence before the Commissioner outweighs the need to have minimal delays in arriving at a decision on the extensions.

In view of the above considerations I have decided to refuse to allow the admittance of the additional evidence. It should be noted that a refusal to admit evidence such as in this case does not shut out the informant, as the Act provides for appeal to a prescribed court as well as the institution of revocation proceedings if an extension of term is granted.

Section 40 - Petty Patent 539479

In the following considerations I will concentrate on the specification of petty patent 539479 being the one with the broader monopoly claim as listed previously.

The informant submits that the claim fails to comply with the requirements of section 40 for numerous reasons. For instance, as contained in paragraph 1 of the Statement of Facts, it is alleged that:

"l(a) the claim of the said petty patent is too wide in the respects set out hereunder.

The claim is not limited to the invention described in the petty patent specification and in particular it is not limited to an arrangement

(i) in which the downwardly directed flow of air is expelled from the housing at or near floor level;

(ii) which has a deflecting plate or alternatively a deflecting plate of sufficient size and/or located in a manner adapted to direct substantial amounts of convection currents away from a path they otherwise would follow and towards the shoulders of the heat exchanger;

(iii) in which air currents induced by the fan flow over or around the shoulders of the heat exchanger;

(iv) in which a baffle plate serves to deflect wind induced down draughts in the flue member from entering the heat exchanger;

(v) in which the separator plate is located in relation to the down draught opening so as to prevent

(aa) down draughts entering or coming into contact with the heat exchanger,

(bb) convection currents entering the down draught opening."

It is further alleged that:

"(b) The said claim is not fairly based ...

(c) The claim does not define or sufficiently or clearly define the alleged invention ...

(d) The claim is neither clear nor succinct and is ambiguous and uncertain ..."

Before considering these allegations further, it is appropriate to review the claim to determine the nature of the invention defined.

The claim is directed to a wall furnace having an elongate upright housing, a generally upright heat exchanger within the housing and a gas burner arranged to heat the interior of the heat exchanger. The furnace also possesses "a fan for causing a flow of air adjacent to the heat exchanger, said flow of air being downwardly directed". Since the location of the fan is not defined, the claim includes furnaces having the fan either positioned in the top region of the housing to force air downwardly, or positioned in a bottom region of the housing to draw air downwardly adjacent the heat exchanger. The furnace defined also includes "a plate located between the heat exchanger and the front face of the housing", the plate being further characterised by the following in use limitation in the claim:

"the plate serving in use to direct convection currents generated at the front face of the heat exchanger into the stream or streams of air induced to enter the housing by the fan."

It was argued on behalf of the informant in support of allegation (d) above that tie expression "direct convection currents ..." and "the stream or streams of air induced ..." in the above limitation were ambiguous and unclear. However I am not inclined to that view for these reasons. The reference to "convection currents" in My interpretation refers to the natural convection currents that arise at that region of the heat exchanger, resulting from a heating of the air in that region by radiation from the heat exchanger. I see no support for the assertion that one should interpret the reference as being "forced" convection currents. The meaning of "to direct" I take to be the normal dictionary meaning such as to guide or conduct, or to regulate the course of, something. The reference to "stream or streams of air" to me merely indicates that the air induced to enter the housing by the fan may not be in a single stream. Consequently, I interpret the above limitation to require that the plate be shaped in such manner and be so arranged between the heat exchanger and the front face of the housing so as to direct or guide the natural convection currents into the induced air stream or streams. On my interpretation, the claim defines an arrangement wherein the plate directs the natural convection currents into the air stream, as distinct from directing the air stream towards or into the convection currents, to thus cause intermixing.

The informant's main attack on the petty patent claim under section 40 is that the claim is too wide and not limited in the respects as indicated above in allegation (a). Its allegation appears to be based on the premise that the various limiting arrangements listed in that allegation are essential features of the invention. In support of its petty patent claim, Mr. Shavin, for the patentee, submitted that the inventive step resided in the provision of the plate to direct the natural convection currents into the fan induced air stream, and since the furnace defined clearly included this feature the claim adequately defined the invention.

A review of the specification leads me to agree with the submissions put on behalf of the patentee on this point. I consider the claim includes in its definition the essential features of the invention described. The features referred to by the informants in allegation (a) in my assessment constitute preferred arrangements to put the invention into practical effect, being described in the specification in relation to the best method of performing the invention.

In summary, I am not satisfied that petty patent specification 539479 is invalid due to non-compliance with the requirements of section 40.

Novelty, obviousness

In support of its assertion that the claim of petty patent 539479 is not novel or is obvious, the informant provides the following supporting reasons in paragraph 2 of its Statement of Facts:

"(a) it was part of the common general knowledge in the field of the manufacture of wall furnaces in Australia at the priority date for such furnaces to comprise an elongate upright housing with louvres in the front face, a gas burner, a generally upright heat exchanger within the housing, the burner being arranged to heat the interior of the heat exchanger, a fan for causing a flow of air adjacent to the heat exchanger with said flow of air being downwardly directed.

(b) It was part of the said common general knowledge to use plates of various kinds to direct or divert currents of air including the direction or diversion of convection currents generated at a face of the heat exchanger into a stream of fan induced air within the housing.

(c) Examples of the plates referred to in (b) above are found in the following prior art wall furnaces:"

(Then follows reference to the wall furnaces and documents A to F which I have quoted earlier in these reasons. The paragraph continues:)

"(d) The integer of a separator plate between the heat exchanger and front face of the housing which serves to direct convection currents generated at the front face of the heat exchanger into the stream or streams of air induced to enter the housing by the fan was at the priority date of the claim old and/or involved no ingenuity or invention."

The informant's assertion, as I understand it, is based on the claim that upright gas wall furnaces of the general construction claimed (but minus "the plate") have been manufactured in Australia since 1968 by the informant company and that these furnaces form part of the common general knowledge in the art at the priority date of the petty patent. Furthermore it is alleged that such common general knowledge also includes the use of plates to direct convection currents generated at a face of the heat exchanger into a stream of fan induced air within such furnace housing. Consequently it is submitted that the claimed invention is old and/or does not involve any invention.

It is well acknowledged in patent law that the common general knowledge in a particular art must be established on the basis of evidence from suitably qualified persons. However in this matter, no such evidence is before me. In the absence of such evidence, it is not appropriate for me to assume what may form part of the common general knowledge simply on the basis of the alleged existence in the market place of certain devices as mentioned in the Statement of Facts. I would add here that there is no evidence to establish what forms of wall furnaces were in the market place before the priority date. For these reasons a novelty or obviousness attack on the claim based on unproven matters of common general knowledge necessarily fails.

The only other material before me to consider with regard to novelty is the copies of documents identified as A to F. Document E for example is a "Specification" describing a Model D37 double sided wall furnace. The appliance is described under various headings without reference to any diagrams. Under the headings GENERAL and TYPE it is stated:

"The D37 is a space heater of the wall furnace design using forced air convection and radiation as the heating media. ...

It is double sided in that it protrudes equally into adjacent rooms. ... It uses a counter flow convection system in that the high level fan draws air from the top of the room passing it over the heat exchanger to the delivery area at the base of the heater."

Later, under the headings HEATING SYSTEM and TYPE it is stated:

"Air is drawn from the room at the front of the furnace at a high level approximately 1800mm from the floor level ... The fan housing turns the air through 900 and delivers it into the top of the furnace. At this point, it is divided to flow equally down the rear and front of the heat exchanger. Here it is heated and then forced into the room at a low level to provide warm air at floor level. A diverter door at the rear can close off the flow to the rear room and deflect it to the front ..."

Document E does not disclose to me a furnace having a plate between the heat exchanger and the front face of the furnace housing to direct natural convection currents generated at the front face of the heat exchanger into the air stream or streams induced to enter the housing by the fan. Even if I am incorrect in that assessment, documents A to F could not be used to sustain a lack of novelty allegation since the publication date of these documents, or more pertinent the originals from which they have been copied, is not before me. While the "Specification" documents carry a "Date of Approval", it is not apparent whether this constitutes a date of publication of the document to the general public.

Consequently, on the material before me, I am not satisfied that the claim of petty patent 539479 would be invalid on the grounds of lack of novelty or obviousness.

Summary

(a) Petty Patent 539479

For the reasons given I am not satisfied of the existence in relation to petty patent 539479 of any of the grounds set out in paragraphs 100(l)(b) to (g) of the Act. It was as a consequence of the above conclusion that I decided on 9 September, 1985 to grant an extension of the tern of petty patent 539479 under sub-section 68B(5) of the Act.

(b) Petty Patent 539480

After considering the documents lodged with the notice and submissions made before me at the hearing in relation to petty patent 539480, I am also not satisfied of the existence in relation to this petty patent of any of the grounds set out in paragraphs 100(l)(b) to (g) of the Act. My reasons for so concluding are similar to,-those expressed in relation to petty patent 539479. It was as a consequence of the above conclusion that I decided on 9 September, 1985 to grant an extension of the term of petty patent 539480 under sub-section 68B(5) of the Act.

I award costs in this matter against the informant Braemar Appliances Pty. Ltd.

(T.R. BRUHN)
Supervising Examiner of Patents
20 SEP 1985