Intellectual Property Office of New Zealand - Patents Decisions
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Last Updated: 16 October 2008
P5/2005
IN THE INTELLECTUAL
PROPERTY OFFICE OF
NEW
ZEALAND
N THE MATTER of the Patents Act 1953
AND
IN THE MATTER of an application for Letters Patent No 523949 in the
name of INSTRUMENT SUPPLIES LIMITED
Applicant
AND
IN THE MATTER of opposition to said application under section 21 by
N J PHILLIPS PTY LIMITED
Opponent
Hearing: 17 February 2005
G Turner for the Opponent
The applicant made written submissions.
Decision
BACKGROUND
Patent application 523949 was filed on 30 January 2003.
The application was accepted on 7 April 2003.
Notice of opposition and statement of case were filed. The notice of opposition pleaded grounds (b), (d), (e), (f) and (g) of section 21(1), but only grounds (b), (e) - first limb, and (g) were supported in the statement of case. Thus these latter three grounds are the only grounds that need to be considered.
The applicant filed a counterstatement denying the grounds pleaded.
LOCUS STANDI
I accept that the opponent has locus standi.
PRIORITY DATES
The cited document was dated 1999, well after the filing date of the complete specification, hence the priority date of the claims is not an issue.
EVIDENCE
The following was filed in support of the opposition:
a statutory declaration by Glenn Walter BUNYAN, Product Design and Development Manager for the opponent company, of Pelton, Australia;
The following was filed in support of the application:
a statutory declaration by Gordon Draisey MALLINSON, Associate Professor, Department of Mechanical Engineering of the University of Auckland.
NATURE OF THE INVENTION
The field of the invention is described in the specification as follows:
This invention relates to a fluid delivery device. Preferably the present invention may be adapted to provide an animal drench gun used to deliver relatively viscous drenching fluids. However, those skilled in the art should appreciate that other applications are also envisioned for the present invention and reference to the above only throughout this specification should in no way be seen as limiting.
The background art is describes as follows:
Many different types and forms of fluid dispensing systems have been developed for different types of fluids. A wide range of fluids needs to be dispensed in varying quantities and varying environments. For example, in farming or animal husbandry applications a fluid delivery device in the form of a drenching gun is commonly employed. These drenching guns provide a unit usually with a hand grip and a trigger mechanism adapted to dispense a set volume of drenching fluid through a nozzle into an animal’s mouth or onto its back. These guns are preferably designed to be as manoeuvrable as possible for a user who may need to drench an uncooperative animal.
At this point the applicant makes reference to the document cited by the opponent as prior publishing the present invention and under obviousness:
One example of such an animal drenching gun is disclosed in NZ Patent No. 330716. The patent specification provided discloses a double cylinder pump arrangement which includes a piston moveable between a filling and dispensing chamber to fill and subsequently dispense fluid. A valve is included in the head of the piston to allow fluid to flow from the filling chamber into the dispensing chamber on the backstroke of the piston as it travels toward the end of the filling chamber.
With relatively viscous drenches or other similar types of fluid, it is preferable to have a flow rate of fluid between the filling and dispensing chambers of a drenching gun similar to that discussed above. In the case where a valve is mounted within the piston head discussed above, the size of the valve and the apertures it contains need to be enlarged to in turn increase the flow rate of fluid from the filling to dispensing chambers.
However, this will in turn require the bore or diameter of the two chambers to be increased to house both an enlarged piston head and associated enlarged valve located within same. Enlarging the size of these chambers will in turn increase the overall size of the drench gun or fluid delivery device provided, which can result in a large unwieldy and difficult to use gun. With large and unwieldy drenching guns, a user may experience difficulties in trying to manoeuvre the outlet nozzle of the gun to deliver a drench dose to an uncooperative animal.
The description of the background art continues:
With all existing types of drench gun it is preferable to complete the drenching of a group of animals as quickly as possible. This is achieved through having as short a time as possible for the operational cycle of the drench gun used. Standard drench guns normally rely on some form of spring arrangement to return a driving piston to its starting point and subsequently draw liquid to be dispensed back into a dispensing chamber. However, this process normally adds a second stage of operation to the use of gun, thereby potentially slowing down its cycle of operation.
In addition, drenching guns and other similar types of fluid delivery or distribution systems also include an inlet port or line from a reservoir of drenching fluid. With the above double cylinder drench gun arrangement, it is known to provide a supply line connection or port into a side wall of one of the chambers to deliver fluid into same. However, this design feature again may result in a relatively unwieldy physical form or shape of the drench gun provided. The inlet to the gun’s chambers will project out to one side and this protrusion may catch on or interfere with objects in the environment in which the gun is to be used.
Furthermore, in some instances it would also be preferable to change the type and configuration of the piston used to drive fluid within such dispensing devices. Different fluids to be dispensed may require different pistons with various types of seals. Furthermore, a piston and its associated seal or seals may become worn over time while the main body of the drenching apparatus or gun employed will still remain serviceable.
An improved fluid distribution apparatus which addressed any or all of the above issues would be of advantage. A fluid distribution apparatus which could efficiently, quickly and easily dispense a range of fluids of various viscosities would be of advantage. Furthermore, a fluid distribution apparatus with a relatively compact design which could be easily manoeuvred in compact or restrictive environments would be of advantage. In addition a fluid distribution apparatus which allowed for the removal or replacement of a piston used in the operation of same both easily and quickly would be of advantage.
All references, including any patents or patent applications cited in the specification are hereby incorporated by reference. No admission is made that any reference constitutes prior art. The discussion of the references states what their authors assert, and the applicants reserve the right to challenge the accuracy and pertinency of the cited documents. It will be clearly understood that, although a number of prior art publications are referred to herein, this reference does not constitute an admission that any of these documents form part of the common general knowledge in the art, in New Zealand or in any other country.
[A paragraph relating to the understanding of the words ‘comprise’, comprised’ and ‘comprising’ as used in the specification]
It is an object of the present invention to address the foregoing problems or at least provide the public with a useful choice.
Further aspects and advantages of the present invention will become apparent from the ensuing description which is given by way of example only.
The main claim is claim 1:
A fluid delivery device adapted to dispense a fluid, said device including,
a filling chamber, and
a dispensing chamber, and
at least one inlet port adapted to supply fluid to be dispensed to said filling and/or dispensing chamber, and
at least one outlet port adapted to dispense fluid from said dispensing and/or filling chamber, and
a piston moveable within said filling and dispensing chambers,
said piston being adapted to divide said filling and dispensing chambers, and
a valve adapted to control fluid flows between said filling and dispensing chambers, said valve being formed separate from the piston,
the fluid delivery device being characterised in that the valve is located on the piston and the valve extends out into the dispensing chamber from the piston.
The remaining claims read:
Claim 2 limits the device claimed to being in the form a drench gun used to deliver relatively viscous drench fluid.
Claims 3 to 15 appear to me to relate to features that would normally be present in a dispensing gun, particularly a drench gun used to deliver relatively viscous drench fluid. Thus they do not introduce any novel feature. There is nothing in the disclosure to indicate that any of the features added in these claims are inventive.
Claim 16 is the omnibus claim which I assumed is a claim to the embodiments of the invention illustrated in the drawings.
THE LAW
The applicant noted that the burden of proof in opposition proceedings lies with the opponent. In Saxpack Foods v Watties Canneries, unreported. M454/87, 11 July 1988, 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.
The applicant also noted that the benefit of any doubt is to be given to the applicant as in Swift & Co’s Application [1962] RPC 37, 46:
[T]he function of the Comptroller-General and of the Tribunal under s.6 of the Act of 1949 is not to decide finally whether an alleged manner of new manufacture is actually patentable. Rather, their function is only to refuse to allow applications to proceed which on no reasonable view could be said to be within the ambit of the Act ... Thus if one goes back to s.2 of the Statute of 1623, it will be seen that from the very beginning it is for the High Court to determine actual patentability.
The applicant pointed out that the Swift approach was approved by the Court of Appeal in Pharmac (CA 56/99, 17 December 1999, at paragraph 15).
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 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 at 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.
This dictum has been applied and followed by the Court of Appeal of New Zealand in Beecham Group Limited’s (New Zealand/Amoxycillin) Application [1982] FSR 181.
The notice of opposition listed one document as prior publishing the invention claimed.
New Zealand Patent Specification 330716
The opening paragraphs of this citation describe the background to the device described therein:
The present invention relates to applicators to deliver a relatively viscous liquid including relatively thick liquids such as cream, mayonnaise, mustard, sauce, etc.
In fast food outlets it is not unusual to have teenagers (particularly young girls) working in food preparation areas. Frequently their tasks will include the application of the above mentioned viscous liquids.
Previously known applicators have suffered from the disadvantage that they are typically designed for adults having considerable hand strength. These previously known devices are therefore most unsuitable to be used in instances where the liquid to be pumped is viscous.
Many manual operated applicators, such as those used in delivering a medication to animals, include a cooperating piston and cylinder, with the piston being spring-urged to a position maximising the volume within the cylinder. Operation of the applicator compresses the spring which in turn provides a resistance from the view point of the operator. This resistance can be considerable.
It is the object of the present invention to overcome or substantially ameliorate the above disadvantages.
The main claim of the citation is claim 1 which reads:
A hand held and hand operated applicator to deliver a relatively viscous liquid such as cream, mayonnaise, mustard and sauce, said applicator comprising:
a body having a handle portion;
an interacting piston and cylinder member mounted on the body and enclosing a first chamber from which the liquid is delivered by the applicator and a second chamber to receive liquid to be delivered to the first chamber, the cylinder member having a cylinder which receives said piston;
an operator manipulated trigger operatively associated with the piston and cylinder to cause delivery of said liquid, the trigger being position [sic] relative to the handle portion so that a user grips the handle portion and trigger in a hand to cause movement of the trigger relative to the handle;
a liquid outlet extending from said first chamber;
a liquid inlet extending to said second chamber;
a conduit extending to said inlet to deliver said liquid thereto, the conduit being provided to connect the applicator to a supply of said liquid;
a one-way valve in said piston connecting said first chamber with said second chamber for the transfer of liquid from said second chamber to said first chamber while inhibiting flow from said first chamber to said second chamber; and wherein
said trigger causes relative reciprocating movement between the piston and cylinder to vary the volume of said second chamber and said first chamber to deliver liquid from said first chamber when the volume thereof is decreased, while allowing liquid to enter said second chamber as the volume thereof increases, and delivering to said first chamber from said second chamber liquid as the volume of said second chamber decreases and the volume of said first chamber increases.
The device is clearly a different device from a device used to deliver drench fluids to animals. The device is designed to deliver liquids such as cream, mayonnaise, mustard and sauce by teenagers (said in the specification to be, particularly, young girls) working in food preparation areas. The device, I imagine, will therefore be different from a drench gun hence the citation cannot prior publish the present invention in so far as the present invention relates to a fluid delivery device adapted to form a drench gun used to deliver relatively viscous drench fluid in an agricultural environment.
The issue of prior publication largely relates to the nature of the valve associated with the piston. The evidence by way of the two statutory declarations discusses this valve as it is described in the present application and in the cited document.
The two declarants, Mr Bunyan and Associate Professor Mallinson, have different and opposing views of the relevance of the cited document. On the conflict of opinion in the Bunyan and Mallinson evidence, the applicant submitted that at the very least there is insufficient evidence to enable me to resolve this conflict of opinion in the opponent’s favour. The applicant drew attention to Beecham Group Limited v Bristol Myers Company (No2) [1979] NZLR 629 at 634, quoting Lord Diplock from General Electric Company’s Application [1964] RPC 413:
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 in s.14(1)(e) [equivalent to New Zealand section 21(1)(e)] depends, the Comptroller 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 also pointed out that only one of the declarants is truly independent, that is Associate Professor Mallinson in support of the application. Mr Bunyan is one of the inventors of the invention described in the citation and is Product Design and Development Manager for the opponent company. In spite of this, in the present case, I will consider both declarations on their merits.
The applicant described the opponent’s comparison of the features of the present claims with the features in the citation as being superficially attractive but on closer inspection to be fundamentally flawed. I would agree that the opponent’s analysis is attractive and any difference between the valve arrangements in the two specifications must be a fine one.
From the opponent’s description it appears to me that the valve arrangement of the citation includes a flexible disc (a ‘valve flap’ as the opponent has labelled this flexible disc on the copy of Figure 3 from the citation) with a stem that ‘clips’ (my word) into the head of the piston. The flexible disc and stem are one piece, and would appear to be formed separately from the head of the piston. The one piece clips into the piston head (and could, as stated at the hearing, be easily removed for replacement if required). The flexible disc is pressed against the face of the piston head on forward movement of the piston so that a measured content of fluid is expelled from the nozzle of the gun. When the piston is withdrawn the flexible disc is deflected from the passages in the piston head to allow a replacement amount of fluid to fill the forward chamber of the gun to be expelled on the next forward movement of the piston.
The opponent submitted that the valve of the present application is also made separately from the piston and acts in the same way as the flexible disc of the citation. I can see from the drawings that it would be made separately from the piston and clips onto the piston head either by a clipping arrangement around the circumference of the flexible disc as shown in Figure 1a of the present application or by way of a central stud as shown in Figures 2a-e of the present application. The circumferential clipping arrangement and the central stud may be seen as mechanical equivalents to the central stem in the apparatus of the citation.
In all other respects the opponent saw the two arrangements as being the same. In particular, the flexible disc in Figure 3 of the citation is shown curved forward of the piston head and hence is, in the view of the opponent, positioned extending out into the dispensing chamber from the piston which is a requirement of the present claims and the opponent submitted that the flexible disc sits on the piston head, which is also a requirement of the present claims.
From the applicant’s point of view the valve of the present application is different from that in the citation.
The applicant compared its valve with the flexible disc of Figure 3 of the citation. The flexible disc of the citation is shown as sitting in a recess in the piston head. The applicant’s valve sits on the piston head, proud of the piston head. As the applicant says in its claim 1, ‘the valve is located on the piston’ and ‘the valve extends out into the dispensing chamber from the piston’. Indeed, from the wording of the last two lines of the applicant’s claim 1 these are the two features which characterise the invention, presumably, over the prior art.
In support of its view of the location of the valve in the citation as being in a recess in the piston head, the applicant quoted from page 6 lines 27-28 of the cited specification where, in describing the valve of Figure 3, it is stated:
Mounted in the piston 57 is a flexible valve member 85. The valve member has a disc portion 86 and a stem 87 secured within the piston 57. The disc portion 86 is formed of resilient material so as to be deflected from the passage 84 to permit the flow of material from the chamber 59 to the chamber 58. [Emphasis added]
The significance of this seating arrangement of the citation was commented upon in the background art section of the present specification (above). In the background section of the present specification it is noted that this seating of the valve or flexible member within the piston head has a negative effect on the flow of particularly relatively viscous drenches. It would appear that the applicant’s seating of the valve on the front or leading face of the piston head may result in a delivery device that would better handle relatively viscous drenches. Presumably, being forward of the leading face of the piston, and not recessed into the piston head, the flexible member is able to create a wider opening allowing better flow of the fluid, particularly where the fluid is a relatively viscous drench.
It seems to me that, whilst any difference may be small, I must take the view on the evidence before me that the applicant has created an improvement on the prior art as represented by the citation.
The applicant was supported by the Mallinson declaration where, at paragraph 14, this deponent also noted that page 6 of the citation and Figure 3 of the citation describe the flexible valve member as being ‘mounted in the piston’.
I also note from paragraphs 13 to 18 of the Mallinson declaration that the applicant’s valve allows for the situation where the valve does not require a supporting piston head with passages for flow of fluid to the dispensing chamber. The valve in this situation may be what is referred to as a ‘lip valve’ with its ability to provide its own passages, such as is illustrated in Figure 1b of the present application. This may be true, but the present claims also include the possibility that the valve may be of a simple flexible disc type that requires the support of the leading face of a piston and associated passages for fluid in order to function.
I must take note of the apparently small difference identified in relation to the seating or positioning of the flexible disc and conclude that the present claimed invention is not anticipated by the citation.
It is my finding that New Zealand Patent Specification 330716 does not prior publish the applicant’s claimed invention, especially with regard to the test in General Tire.
I find that the ground of prior publication 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 at 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, the first being based on prior publication, the second being based on prior use. Only the first limb is raised in these proceedings.
The applicant pointed out that the usual 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:
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:
The applicant also drew attention to Lucas v Peterson (Fisher J, High Court Auckland, CP6/99, 9 May 2003). While starting with the four stage analysis set out in Windsurfing, Fisher J went on to disclose, at paragraph 69, a series of supplementary principles to help determine the question of obviousness:
(a) Where the invention is the combination of features all of which were individually known, the Court must avoid the danger of concentrating on the integers rather than the whole concept: Wood v Gowshall [1937] 54 RPC 37; Smale, supra, at p 43; Sabaf SpA v Meneghetti SpA [2002] EWCA Civ 976; [2003] RPC 264, 278 at para 40.
(b) The Court must also avoid the danger of falling into ex post facto analysis. It must put out of its mind developments since the invention and view the question of obviousness from the perspective of persons skilled in the art immediately before the priority date: Non-drip Measure Co Ltd v Strangers Ltd [1943] 60 RPC 135, 142; Technograph Printed Circuits Ltd v Mills and Rockley (Electronics) Ltd [1972] RPC 346, 362. The warning against being wise after the event is of special importance in a field, such as the present one, where it is easy to imagine that one is skilled in the art after a relatively brief period looking at a few drawings: Fichera & Anor v Flogates Ltd & Anor [1983] FSR 198.
(c) There is no inventive step if a known article is applied to a new and analogous purpose: Morgan & Co v Windover & Co (1890) 7 RPC 131, 134 (HL); Smale v North Sails, supra, at 43.
(d) Similarly, there is no inventive step if known features are brought together into a single whole in which the component parts continue to “do their own thing”: International Paint Co Ltd’s Application [1982] RPC 247 at 275. Thus there is no invention if “however juxtaposed to the other ingredients of the mixture or parts of the article, each part performs its own function and would do so even in the absence of the other parts.”(ibid). The converse is true if the collocation of features produces a new or improved function by virtue of the novel relationship established between the known features.
(e) Obviousness relates to the technical subject matter claimed to be inventive, and not to its commercial worth; Windsurfing, supra, at 72.
(f) The mere fact that the claim is merely to an improvement to a product already on the market does not preclude an inventive step: Hickman v Andrews [1983] RPC 147 at 189.
(g) In the end, it is impossible to avoid the conclusion that the distinction between novelty and obviousness is a question of degree rather than classification, at least in a case of the present kind.
The applicant pointed out that in Beecham Group Ltd v Bristol-Myers Co (No 2) [1980] 1 NZLR 192, 232, the Court held that obviousness should be judged from the viewpoint of a ‘notional’ person possessing the following characteristics:
The applicant submitted that, while the declarant for the opponent may be skilled in the art, he is employed as a product design and development manger and is named as inventor in a number of patents in respect of fluid delivery systems including the patent which has been cited as the basis of the present opposition and hence cannot be said to be incapable of a scintilla of invention. I will consider the Bunyan declaration nevertheless.
The opponent’s case is that, if there are any differences between the present claims and the disclosure in New Zealand patent specification 330716, then these would be obvious to the normally skilled but unimaginative addressee.
The opponent has not identified the prior knowledge possessed by the normally skilled but unimaginative addressee or shown how that addressee would view the present invention against that prior knowledge. Hence the ground cannot be made out.
The inventive concept of the present invention would appear to be the provision of a fluid delivery gun with a valve formed separately from the piston of such a gun, the valve additionally being positioned on the piston and on the delivery side of the leading face of piston head such that it can be said to extend out into the dispensing chamber from the piston.
The identified published matter is New Zealand patent specification 330716.
The differences between the cited publication and the invention claimed in present main claim 1 are discussed above under ‘prior publication’.
There is no evidence provided by the opponent to establish how the differences would be obvious to the normally skilled but unimaginative addressee. Hence, again, the ground cannot be made out.
My finding on obviousness is that the ground is not made out.
NOT SUFFICIENTLY AND FAIRLY DESCRIBED - 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
Davison CJ in Noton New Zealand Limited v Alister Bevin Limited (1979) 1 NZIPR 236 at 238 quoted the following passage from Alister Bevin Limited’s Patent 164293 (Decisions of the Commissioner, P6/1978, 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 opponent may have identified some deficiencies in the specification. However, I do not see that any such deficiencies would result in an addressee being 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 that addressee.
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 patent be sealed.
COSTS
Pursuant to section 95(1) I direct that the opponent pay to the applicant the sum of $1450-00 on the scale of fees.
Dated this 28th day of February 2005
_____________________________
A Hazlewood
Assistant Commissioner of
Patents
James & Wells for the Applicant
Don Hopkins and Associates for the
Opponent
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