Intellectual Property Office of New Zealand - Patents Decisions
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Last Updated: 14 October 2008
P18/2002
IN THE INTELLECTUAL
IN THE MATTER of the Patents Act 1953
AND
IN THE MATTER of an application for Letters Patent No 328267 in the name of TETRA PAK TEBEL BV
Applicant
AND
IN THE MATTER of opposition to said application under section 21 by CARLISLE PROCESS SYSTEMS LIMITED
Opponent
Hearing: 18 July 2002
Greg Arthur assisted by Kathryn McHaffie for the Applicant
No appearance by the Opponent
Decision
Patent application 328267 was filed on 7 July 1997, claiming priority from application 1003550 filed in the Netherlands on 9 July 1996.
The notice of acceptance issued on 29 July 1998, acceptance being published in Patent Office Journal 1431 which issued on 26 August 1998.
Grounds (b), (d), (e) - both limbs, and (g) of section 21(1) are pleaded by the opponent.
All grounds pleaded are denied by the applicant.
LOCUS STANDI
The applicant accepts that the opponent has locus standi. I also accept that the opponent, a manufacturer of cheese block formers and a patentee in this field, has locus standi.
PRIORITY DATES
The applicant accepts that nothing turns on this date. I accept that the priority date of the claims is not an issue.
EVIDENCE
For the opponent, statutory declarations of:
For the applicant, two statutory declarations of:
AMENDMENT PROPOSALS
Two sets of unconditional amendment proposals were made by the applicant. The proposals were found allowable as meeting the conditions for amendment of a specification after acceptance under section 40(1) by the Intellectual Property Office (IPONZ) Examination Section.
Section 40(1) relates to amendment of a specification after acceptance:
After the acceptance of a complete specification, no amendment thereof shall be effected except by way of disclaimer, correction, or explanation, and no amendment thereof shall be allowed, except for the purpose of correcting an obvious mistake, the effect of which would be that the specification as amended would claim or describe matter not in substance disclosed in the specification before the amendment, or that any claim of the specification as amended would not fall wholly within the scope of a claim of the specification before the amendment.
In the absence of any denial of their acceptability by the opponent, I assume
the amendment proposals are acceptable to that party.
I have studied the
amendment proposals and I find that they are acceptable as meeting the
requirements of
section 40(1).
The amendment proposals are to be effected.
This decision is based on the specification and claims as proposed to be amended.
NATURE OF THE INVENTION
The invention relates to a block former for the production of blocks of cheese.
An object of the invention is to increase the capacity of block formers while maintaining sufficient curd feed to the column. In the known block formers the feed of curd particles to the top of the column has to be discontinued while the pillar is lowered through the bottom of the column for a curd block to be cut off. In the present invention the separation of the column into upper and lower parts with the ability to separately apply different pressures to the two parts enables a reduced pressure to be applied to the upper part of the column to allow feed to be drawn into the top of the column while the lower part of the column is at atmospheric pressure to allow the pillar of curd to be lowered through the bottom of the column for cutting of the block. Thus the non-continuous process of the prior art becomes the continuous process of the invention. The ability to draw feed into the top of the column while cheese is removed from the bottom results in the block forming cycle time being reduced, thereby increasing productivity. The height of the column can also be increased to increase residence time of the curd in the column to ensure sufficient compaction of the curd while maintaining the shorter cycle time. In addition, the new process is said to obviate the need to pre-press the freshly cut block.
The main claim is claim 1 which, as proposed to be amended, reads:
A block former for the production of blocks of cheese, comprising
a tower having an upright drainage column with a feed opening for curd particles at the upper end, a closed casing and a perforated inner tube,
there being an annular space between the casing and the inner tube,
and with a cutting-off device at the lower end for cutting off blocks of cheese and
a discharge device for discharging a cut-off block of cheese after a block forming cycle,
as well as vacuum means for filling under reduced pressure the inner tube with curd particles via the feed opening and creating a vacuum in the annular space,
characterized in that
the column is divided into an upper part and a lower part by separating means located intermediate the length of the column and dividing the annular space into a corresponding upper part and a lower part,
the inner tube being perforated both above and below the separating means
whereby when a pillar of curd is contained in the inner tube to a level above the separating means it plugs the inner tube in a region adjacent the separating means so that different pressures can be applied separately and can prevail simultaneously in the upper and lower parts of the column during any moment of a cycle
so that different pressures can be applied simultaneously to corresponding upper and lower parts of the pillar of curd.
The remaining claims include the integers of claim 1.
THE LAW
On any conflict of fact and expert opinion, the applicant drew attention to General Electric Company’s Application [1964] RPC 413 (approved in Beecham Group Limited v Bristol Myers Company (No2) [1979] NZLR 629 at 634) where Lord Diplock said:
The right principle is that if on the face of the written evidence filed there appears to be a bona fide conflict of fact or credible expert opinion upon a question on the answer to which the existence or non-existence of the ground for refusal specified ..... depends, the [Commissioner] should not exercise his jurisdiction to refuse the grant unless, after cross-examination of the witness if he thinks fit to order it, the conflict is clearly resolved in favour of the party opposing the grant.
The applicant submitted that the Commissioner should be satisfied beyond doubt that the Letters Patent applied for ought not to be sealed otherwise the benefit of the doubt will be given to the applicant even though the doubt may be small. The applicant drew attention to the decision in Saxpack Foods v Watties Canneries, unreported, M454/87, 11 July 1988, where Ongley J stated:
I approach the proceedings upon the basis that the purpose of opposition proceedings is to clear the register of patents which are manifestly untenable. It is not to provide a method of disposing of truly contentious cases: per Buckley LJ, General Electric Co (Cox’s) Patents [1977] RPC 421, 437, where His Lordship stated the test to be applied in these terms:
Is it clear on the evidence before the Comptroller that, if the issue of obviousness (assuming that to be the ground relied on) were fought out in a full scale revocation action, the claims would be held bad for obviousness? If the answer is affirmative, then it is right that the patent should be killed in its infancy. If the answer is negative, the patentee should not be deprived of his patent without the protection of a full scale action.
PRIOR PUBLICATION – section 21(1)(b)
Section 21(1)(b) states:
That the invention, so far as claimed in any claim of the complete specification, has been published in New Zealand before the priority date of the claim —
(i) In any specification filed in pursuance of an application for a patent made in New Zealand and dated within 50 years next before the date of filing of the applicant’s complete specification:
(ii) In any other document (not being a document of any class described in subsection (1) of section 59 of this Act)
The applicant pointed out that the usual test for prior publication is that set forth in the judgment of the English Court of Appeal by Sachs LJ in The General Tire & Rubber Company v The Firestone Tyre and Rubber Company Limited and Others [1972] RPC 457 on pages 485 to 486:
If the prior inventor’s publication contains a clear description of, or clear instructions to do or make, something that would infringe the patentee’s claim if carried out after the grant of the patentee’s patent, the patentee’s claim will have been shown to lack the necessary novelty, that is to say, it will have been anticipated. The prior inventor, however, and the patentee may have approached the same device from different starting points and may for this reason, or it may be for other reasons, have so described their devices that it cannot be immediately discerned from a reading of the language which they have respectively used that they have discovered in truth the same device; but if carrying out the directions contained in the prior inventor’s publication will inevitably result in something being made or done which, if the patentee’s patent were valid, would constitute an infringement of the patentee’s claim, this circumstance demonstrates that the patentee’s claim has in fact been anticipated.
If, on the other hand, the prior publication contains a direction which is capable of being carried out in a manner which would infringe the patentee’s claim, but would be at least as likely to be carried out in a way which would not do so, the patentee’s claim will not have been anticipated, although it may fail on the ground of obviousness. To anticipate the patentee’s claim the prior publication must contain clear and unmistakeable directions to do what the patentee claims to have invented ... A signpost, however clear, upon the road to the patentee’s invention will not suffice. The prior inventor must be clearly shown to have planted his flag at the precise destination before the patentee.
The last notice of opposition filed listed six documents as prior publishing the invention claimed. Two of these were later withdrawn. They were said to have been withdrawn in view of the amendments proposed. In the public interest I will consider all of the documents cited. All documents were publicly available in New Zealand before any priority date to which the claimed invention could possibly be entitled.
The integers of claim 1 are listed above in the section ‘Nature of the Invention’.
New Zealand Patent Specification 148406
The specification describes a system for filling curd or cheese moulds and so is different from the present invention which is for the formation of cheese blocks without moulds. The curds and whey are fed to the column above the moulds under gravity, not by vacuum. There is no vacuum connection to the column, so there is no disclosure of the use of vacuum to fill the column, to remove whey and air from the curd by way of vacuum in the annular space around the inner tube, or of the use of vacuum to draw the cheese through the bottom of the column. There is no divider to divide the annular space around the inner tube into an upper part and a lower part, thereby defining an upper and a lower space in the inner tube.
The specification does not anticipate the applicant’s claimed invention especially as it is proposed to be amended.
New Zealand Patent Specification 179014
This is one of the two specifications which were withdrawn as citations. A batch process for producing cheese blocks is described. Curds are fed under gravity to the top of a column which is then closed at the top. Downwards pressure is applied to the top of the column to compress the curd and expel whey. The whey is also removed by a vacuum drawn through apertures in the column walls. The apertures are present almost to the top of the column. When the cheese is formed the downwards pressure on the column is used to push the cheese out of the bottom of the column. There is no teaching that different pressures can prevail at the same time in an upper and a lower part of the column. The curds are not drawn into the column under vacuum. There is no divider part way up any annular space around the inner tube. The system is batch rather than continuous.
This specification does not anticipate the applicant’s claimed invention especially as it is proposed to be amended.
New Zealand Patent Specification 180374
The cheese block former disclosed comprises a hollow casing with a perforated column inside the casing. The curd is fed into the column under sub-atmospheric pressure. The sub-atmospheric pressure is used to remove whey from the curd as it compacts. The weight of the curd compacts the curd in the lower part of the column. To remove the cheese from the bottom of the column a differential pressure is produced along the length of the column. To achieve this differential pressure a downwards pressure is applied at the top of the column and, optionally, sub-atmospheric pressure applied at the foot of the column. The sub-atmospheric pressure at the foot is sourced in the cutting chamber. When the guillotine at the foot of the column is retracted the cheese is drawn out of the column into the cutting chamber to be cut off as blocks. The differential pressure was described by the applicant as a push-pull effect. The differential pressure is not one that is applied at any stage of the process as in the present application. There is no teaching that different pressures can prevail at the same time in an upper and a lower part of the column. There is no divider to divide the annular space around the inner tube into an upper and lower part and thereby define an upper and a lower space in the inner tube. The column cannot be filled with curd while cheese is being withdrawn from the base of the column for cutting.
The specification does not anticipate the applicant’s claimed invention especially as it is proposed to be amended.
New Zealand Patent Specification 190083
This document is disclosed in the present application as the prior art on which the applicant’s invention is said to be an improvement. The apparatus described is similar to that disclosed in New Zealand Patent Specification 180374 above. In the apparatus, increased pressure applied to the compressed curd in the column prior to removal for cutting into blocks results in a slight reduction in the cross sectional area of the pillar of curd thus easing the curd away from the perforated wall of the inner column and hence facilitating the downward movement of the pillar of curd into the cutting area. The process is non-continuous in that the column cannot be filled at the top with curd while the bottom is opened for removal of cheese and cutting it into blocks. The main difference between this block former and that in 180374 is that there is a thick-walled non-perforated section between the lower end of the column and the cutting chamber. The purpose of the non-perforated section appears to be that the compressed curds in this area act as a plug maintaining the pressure difference between the cutting chamber and the column. There is no disclosure of a separating means in the annular space around the perforated inner wall and the outer casing enabling different pressures to be maintained at the same time and at any time in the processing cycle in an upper and lower part of the column.
This document does not anticipate the applicant’s claimed invention especially as it is proposed to be amended.
New Zealand Patent Specification 256118, first published as WO94/24850
This specification discloses a prior art cheese block forming tower which has been extended in height. The extension as exemplified in the specification is not perforated. A seal is also disclosed between the perforated part of the column and the imperforate extension. The imperforate extension has no annular space.
The tower does not have the features of a perforated inner tube above and below a separating means in the annular space around the inner tube creating two zones in the space, one above and one below the means, and thus defining upper and lower sections of the inner tube itself. While, the imperforate extension can be subject to different pressures, it is not possible to apply a vacuum on the sides of the curd pillar in that extension. Any vacuum applied to the top of the column cannot transfer down to the lower section of the column. It is not possible for the column to be filled with curds at the top, under sub-atmospheric pressure, while a full vacuum is applied to the curd pillar in the lower part of the column.
There is no disclosure that a vacuum can be applied via the seal joining the extension to the existing column, in particular where the clean-in-place system is described in the specification as being attached. More is said about the clean-in-place system under ‘Prior Use’ below.
The specification does not anticipate the applicant’s claimed invention especially as it is proposed to be amended.
United States Patent Specification 5146845
This is the other of the two specifications which were withdrawn as citations by the opponent. This specification describes a cheese block former column in which whey is withdrawn from both the exterior of the pillar of curds and from a position within the pillar. Otherwise the column is conventional. Having a means to additionally draw whey from the interior of the pillar of curds enables larger blocks of cheese to be produced. The design of the column does not allow for independently different pressures to be applied simultaneously to upper and lower parts of the pillar of curds.
This specification does not anticipate the applicant’s claimed invention especially as it is proposed to be amended.
None of the documents cited as prior publications anticipate the applicant’s invention especially as it is proposed to be claimed, hence I find that the ground of prior publication is not made out.
PRIOR USE - section 21(1)(d)
Section 21(1)(d) states:
That the invention, so far as claimed in any claim of the complete specification, was used in New Zealand before the priority date of that claim
IPONZ Office Practice Note, published in Patent Office Journal No 1287 in July 1986, page 714, sets out what the opponent must do to prove this ground:
To succeed on this ground, an opponent must first establish that the alleged instance(s) of prior use was (were) not secret use(s) of the invention, as claimed. See the decision of the House of Lords in Bristol-Myers (Johnson’s) Application [1975] RPC 127, at 157, for a discussion on what constitutes public use, as opposed to secret use. The opponent must also establish, by evidence,
(a) what was used
(b) where it was used
(c) by whom it was used
(d) the date it was used
(e) where apparatus still extant may be inspected.
The evidence shows that an apparatus alleged to establish prior user was installed and trialed at Southland Dairy Co-Operative, Edendale, Southland, New Zealand in 1993. The cheese tower was said to have been described in patent application PCT/NZ94/00037 (published as WO94/24850). This patent application entered the New Zealand national phase as patent application 256118. That an extended cheese block forming tower was installed and trialed was confirmed by deponent Radonich. However this deponent could not confirm any technical details of the tower.
As the tower was said by deponent Misson to be the tower described in the specification accompanying New Zealand patent application 256118 it cannot establish prior use of the applicant’s claimed invention. I have already found, above, that patent application 256118 does not anticipate the patent application in suit. Hence, a tower constructed following the teachings of specification 256118 cannot be the same as that described in the applicant’s specification, especially in the form as proposed to be amended. Thus the ground of prior use cannot be made out on the basis of the Southland Dairy Co-Operative tower.
Declarant Jones for the applicant in his first declaration explains in detail the differences between the tower at Southland Dairy Co-Operative. Using technical drawings, he describes the tower before the opponent adapted it; the tower as adapted by the opponent as per patent application 256118; the tower which the applicant markets and which is described and claimed in the application in suit; and details of the perforated column at Southland Dairy Co-Operative.
Declarant Misson in his second declaration produced a different drawing of the adapted Southland Dairy Co-Operative tower showing a vacuum line where there was none in the Jones declaration. In the Jones declaration the line was shown as a clean-in-place line. That there is such a vacuum line needs to be corroborated by further evidence. This is especially so since the specification 256118 does not show such a vacuum line which Misson declares to be ‘critical’. The specification discloses a clean-in-place line at this part of the tower. On the need for corroboration of conflicting evidence, the applicant drew attention to Seiler’s Application [1970] RPC 103, 106, where it is stated in the Patent Appeal Tribunal:
In my judgement it is necessary that proof of prior user in opposition cases should be very clear. Normally, in the absence of cross-examination, this will involve corroboration of a mere statement as to recollection in a declaration, particularly where the time interval involved is considerable. Such corroboration is often best found in documents contemporary with the fact to be proved. Each case, however, must be considered on its own facts and I say expressly that I am not attempting to lay down any rule as to what is or is not sufficient in any given case.
In the event that the line was, at some later date, changed from a clean-in-place line to a vacuum line, the date of the change needs to be established for that evidence to be considered.
In any event, even if the vacuum line was where it was suggested in the second Misson declaration, the tower does not have lower and upper perforate annular sections divided by a separating means to enable differential vacuum effects to be produced in the two sections at any time during the processing of the curds. Hence the Southland Dairy Co-Operative tower does not establish prior use of the applicant’s claimed invention.
This ground is not made out.
OBVIOUSNESS - section 21(1)(e)
Section 21(1)(e) reads:
That the invention, so far as claimed in any claim of the complete specification is obvious and clearly does not involve any inventive step having regard to matter published as mentioned in paragraph (b) of this subsection, or having regard to what was used in New Zealand before the priority date of the applicant’s claim
The Act requires that the invention must be shown to be clearly obvious, otherwise the applicant should be given the benefit of any doubt. The word “clearly” is discussed in Beecham Group Ltd v Bristol Myers Company (No 2) [1980] 1 NZLR 192, 230 where Barker J states:
The word “clearly” in s 21(1)(e) is not found in s 41(1)(f) which provides, as a ground for revocation by the court of a patent in proceedings to that end:
That the invention, so far as it is claimed in any claim of the complete specification, is obvious and does not involve any inventive step having regard to what was known or used before the priority date of the claim in New Zealand.
The insertion of the word “clearly” in the opposition section indicates a higher onus on an opponent in opposition proceedings who alleges that there is no inventive step, the omission of the word in the revocation section indicates that the onus there is not quite so high.
The ground of obviousness has two limbs, one based on prior publication, the other based on prior use. Both limbs are raised in these proceedings. IPONZ Office Practice Note No 33 published in Patent Office Journal No 1367 of April 1993, page 492, explained this as follows:
This ground has two separate distinct limbs, (a) obviousness and clear lack of inventive step, having regard to what has been published in New Zealand, before the priority date of a claim under attack, and (b) obviousness and clear lack of inventive step, having regard to what has been used in New Zealand, before the priority date of a claim under attack. It is not permissible to combine the two separate limbs. Note the use of the disjunctive “or” in the paragraph.
The applicant pointed out that the well established test for obviousness was that set out by Oliver J in Windsurfing International Inc v Tabur Marine (Great Britain) Ltd [1985] RPC 59 at 73, and followed in New Zealand by Gault J in Ancare v Cyanamid [2000] 3 NZLR 299 at 309:
There are, we think, four steps which require to be taken in answering the jury question. The first is to identify the inventive concept embodied in the patent in suit. Thereafter, the court has to assume the mantle of the normally skilled but unimaginative addressee in the art at the priority date and to impute to him what was, at that date, common general knowledge in the art in question. The third step is to identify what, if any, differences exist between the matter cited as being ‘known or used’ and the alleged invention. Finally the court has to ask itself whether, viewed without any knowledge of the alleged invention, those differences constitute steps which would have been obvious to the skilled man or whether they require any degree of invention.
The approach can be summarised as steps 1 to 4:
Step 1: The inventive concept of the present invention is a cheese block former with a separating means dividing the annular space between the perforated inner tube and the imperforate outer casing of the block former column. The means divides the annular space into an upper part and a lower part. This division also defines upper and lower parts of the inner tube. This arrangement enables different pressures to prevail in the upper and lower parts of the column at any time of the block forming cycle. The advantages of the arrangement include a reduced block forming cycle time, increased capacity of the tower, and there is less need to pre-press the cheese blocks cut from the bottom of the tower.
Step 2: The prior art, being the documents raised under Prior Publication and the apparatus of Prior Use, establishes that ‘standard’ cheese block forming towers were known. It is known that a vacuum can be applied to draw curd feed into a column through its top. When the desired curd level is reached the feed is stopped and a full vacuum applied to the column of curd to extract whey and air. The feed valve has to be closed for the vacuum to be achieved. The curd compacts. When the pillar of curd is ready, the column vacuum is vented to atmospheric pressure, a guillotine at the base of the tower is opened, and the pillar of curd is lowered. This lowering of the pillar is assisted by a vacuum applied in the chamber below the guillotine. Once the block of curd has been cut the guillotine is fully closed, and a vacuum is again applied to the column to draw in curd feed to refill the column.
Step 3: When the vacuum in the ‘standard’ known cheese block former column is vented so that atmospheric pressure prevails in the lower part of the column for the lowering of the pillar of curd and cutting the blocks at the foot of the tower it is not possible to fill the column with more curd feed as there is no vacuum in the column to draw in the feed. Differential vacuums or pressures cannot be applied over the height of the ‘standard’ column through the annular space as there is no dividing means forming upper and lower sections. These differential pressures are achieved by the applicant’s invention. The annular space, and the inner column, is divided into upper and lower sections that can have different pressures or vacuums applied to them at any time in the block making cycle. The use of the differential vacuum enables a continuous cheese block making process to be achieved, as described elsewhere in this decision.
While the standard cheese block forming tower may have different pressures at different parts of the tower, these different pressures would be atmospheric pressure in the column and sub-atmospheric pressure in the pre-pressing chamber wherein the block is cut. The pre-pressing chamber is not part of the column, the column, the column being that part of the tower which contains the fed curd and curd pillar. There is no suggestion in the prior art that differential pressures should apply in two sections of the column itself. There is no suggestion that the applicant’s differential pressure arrangement would overcome a longstanding desire to decrease the block forming cycle without compromising the quality of cheese blocks cut from existing block formers.
Step 4: Nothing in the prior art, either by way of prior published documents or prior existing apparatus, indicates the use of any kind of separating means in an, or the, annular space around a perforated inner curd tube defining corresponding upper and lower sections within that tube such that differential pressures or vacuums may apply at the same time in the two sections. The opponent has not shown anything as existing in the prior publications or prior existing apparatus which could have been adapted by the normally skilled but unimaginative addressee to produce the applicant’s claimed invention. There is nothing presented by the opponent which would have led the unimaginative addressee, presented with the desire to decrease block forming cycle time and increase tower productivity without reducing the quality of the blocks formed, towards the applicant’s claimed invention. As far as I can see, an unimaginative addressee might have tried to increased the height of the tower.
Obviousness and clear lack of inventive step have not been proved.
The ground is not made out.
INSUFFICIENCY - section 21(1)(g)
Section 21(1)(g) states:
That the complete specification does not sufficiently and fairly describe the invention or the method by which it is to be performed
The applicant drew attention to Davidson CJ in Noton New Zealand Limited v Alister Bevin Limited (1979) 1 NZIPR 236 at 238 where he quoted the following passage from the Assistant Commissioner in Alister Bevin Limited’s Patent 164293 (decision of the Assistant Commissioner, 14 August 1978) defining the scope of the ground of insufficiency:
An allegation of insufficiency is an allegation that the addressee of the complete specification will be unable to produce the subject of the principal or broadest claim by following the directions of the specification without further invention on the part of the addressee.
The applicant also referred to Valensi and Another v British Radio Corporation [1973] RPC 337, at 377, where the Court of Appeal held that in assessing insufficiency the hypothetical addressee:
must be taken as a person with a will to make the instructions work.
The applicant submitted that raising purely hypothetical problems when the practical answer is apparent to the skilled reader from the specification or raising deliberately obtuse constructions of the specification do not render the patent specification insufficient.
I agree with all the foregoing and say at the outset that, having read the specification and claims, I think the skilled reader would have little difficulty in producing the claimed invention without further invention on the part of the addressee.
The opponent alleged the specification was unclear as to what was meant by a “separating means”. The applicant has explained this well in submissions and in declarations supporting its case. I am satisfied that the separating means referred to is a means to divide the annular space between the inner perforated tube and the outer imperforate casing into an upper part and a lower part. The separating means can be any means that will provide the separation, possibly a cross flange or a guillotine blade or the like. It is clear that the means does not divide the perforated inner tube. The specification is also clear when it is referring to this means as possibly being a guillotine blade and when it is referring to the guillotine blade at the base of the tower which is used to cut blocks from the compressed curd exiting the bottom of the column.
It is also clear to me that the inner perforated tube above the position of the separating means is the upper part of the column and the part below the means is the lower part of the column. These upper and lower parts are shown in figures 2 and 3 accompanying the specification and are referred to by the numbers 40 and 41, respectively. It is clear that separate and different pressures can prevail at the same time in the upper and lower parts of the column, particularly when the separating means is operating in conjunction with a pillar of curd, which is present in the inner tube to a level above the level of the separating means. The curd pillar acts as its own plug dividing the column into two pressure zones, being the upper part of the column and the lower part of the column already referred to.
It is clear from the specification that in a preferred embodiment a part of the perforated area of the inner tube immediately above and/or immediately below the position of the separating means is not perforated. It is clear from the technology that the separating means would work better with such an imperforate section and hence this imperforate section would be a preferred arrangement. I agree with the applicant that the allegation by the opponent that the imperforate column section is necessary to create a “sealing” plug is really an allegation of inutility which cannot be considered in opposition proceedings. Allegations of inutility can only be considered in patent revocation proceedings before the Court.
The cycle time appears to be clear. The applicant says this is the time between cutting off successive blocks from the base of the tower. In the present invention, because the feeding of curd to the top does not stop, as it does in the standard block forming process when the pillar of curd is lowered and the block is cut, there is a saving of time in the cycle. At the same time that curd is fed to the top of the column, whey is separated from the curd in the upper part of the column. The column height can also be increased, the greater weight of the increased pillar of curd thereby achieved aiding in removing air and whey from the curd and in compacting the curd.
The opponent has not shown to my satisfaction that the specification is insufficient in describing the invention claimed and how it is to be performed.
The ground is not made out.
DECISION
I find that none of the grounds has been made out. I dismiss the opposition, and I direct that the specification be amended as proposed, after which the patent is to be sealed.
The applicant has 28 days from the date of this decision in which to file a specification amended as proposed.
COSTS
Pursuant to section 95(1) I award $2000 by way of costs to the applicant and direct that the opponent pay this sum to the applicant.
Dated this 6th day of August 2002
A Hazlewood
Assistant Commissioner of Patents
A J Park for the Applicant
No appearance for the Opponent
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