" 160-(1.) Where, by reason of-

(a) an error or action on the part of an officer

or person employed in the Patent Office;

or

(b) circumstances beyond the control of the person

concerned,

an act or step in relation to an application for a

patent or in proceedings under this Act (not being

proceedings in a court) required to be done or taken

within a certain time has not been so done or taken, the

Commissioner may extend the time for doing the act or

taking the step and permit the act to be done or the

step to be taken.

(2.) The time required for doing an act or taking a

step may be extended under this section although that

time has expired."

As at relevant times, so far as material, s.160 provided:

"160.-(1.) Where, by reason of an error or omission

on the part of an officer or person employed in the

Patent Office, an act or step in relation to an

application for a patent or in proceedings under this

Act (not being proceedings in a court) required to be

done or taken within a certain time has not been so done

or taken, the Commissioner shall extend the time for

doing the act or taking the step.

"(2.) Where, by reason of-

(a) an error or omission on the part of the person

concerned or his agent or attorney; or

(b) circumstances beyond the control of the person

concerned,

an act or step in relation to an application for a

patent or in proceedings under this Act (not being

proceedings in a court) required to be done or taken

within a certain time has not been so done or taken, the

Commissioner may, upon application by the person

concerned, but subject to this section, extend the time

for doing the act or taking the step.

"(3.) The time for the doing of an act or the taking

of a step may be extended under either of the last two

proceeding sub-sections although that time has expired.

"(4.) Where an appliction for extension of time

under sub-section (2.) of this section is made more than

three months after the expiration of the time allowed

for the doing of the act or the taking of the step, the

Commissioner shall advertise the application in the

Official Journal."

It was submitted on behalf of Stork that the amendment to s.160 had made it clear that extensions could only be granted once opposition proceedings were duly instituted. In this respect I agree with the submissions from the Australian Government Solicitor on behalf of the Commissioner, and from Mr Terry, patent attorney for Weir, that the amendments have not altered the fundamental provisions of s.160 so as to change the original wording which referred to "in proceedings" in s.160(1). The fundamental change introduced into s.160 was to differentiate between errors or omissions in the Patent Office in s.160(1) and those made by a person concerned, his agent or attorney, in s.160(2) of the Act.

5. Leaving that point aside, Mr Hinde's fundamental submission as to power to make an order under s.160 in favour of a person who is not an applicant for a patent or a party to opposition proceedings, remains.

6. Dealing with the Trade Marks Act, 1955 (Cth.), Beaumont J. in Lyons v Registrar of Trade Marks [1983] FCA 236; (1983) 50 ALR 496 held that a power to extend time provided in s.131 provided an independent source of power to extend time, notwithstanding an inbuilt and exhaustive code for extension contained in s.49 of the same Act. In Rohrmoser v Registrar of Trade Marks (1987) 70 ALR 613 at 616 Jenkinson J. found some difficulty with treating s.130 of the Trade Marks Act as overriding s.49 thereof. It seems to me the matter of the correct construction of s.160 of the Act should not be passed upon in this Tribunal, having regard to the High Court's decision in Australian Paper Manufacturers Ltd. v CIL Inc. [1981] HCA 64; (1981) 37 ALR 289 in relation to Convention patent applications and to Federal Court decisions. Although I am impressed by Franki J's dissent in Lehtovaara v Acting Deputy Commissioner of Patents [1981] FCA 218; (1981) 39 ALR 103, a case concerning time for acceptance of a standard patent, I am prepared to assume for the purposes of this application, that s.160 of th Act applies to give power to extend time, even in the case of "Code" sections with their own inbuilt time limits.

7. However, I prefer Mr Hinde's submission that regardless of the alleged independence of s.160 of the Act from other provisions thereof, s.160(2) is not sufficiently wide to enable a person who is not a party concerned as being an applicant for a patent, or a party concerned as being a party to existing proceedings under the Act (not being proceedings in a court), to apply for an extension of time. Reference has been made to some case called Groko Maskin A.B. v Sebastion Engineering (1981) Pty.Ltd. [1984] APO 14; (1984) AIPC 93-221; 3 IPR 614; which may well be a patent office decision. The library of the Tribunal in Sydney does not possess any series of intellectual property reports whatsoever, notwithstanding the Tribunal's jurisdiction under the Act. It does not seem expedient to hold up this decision to hunt for it from libraries situated elsewhere, and, in any event, I have reached a firm conclusion upon the ultimate point. In Re Stibbard and The Commissioner for Patents, 29 August 1986, No.2833, I pointed out the disastrous consequences to the patent system if s.160 could be used to enable an applicant for a patent to obtain an extension of term so as to in effect claim a retrospective priority date, earlier than the date of actual application. I have also been referred to a judgment of Pincus J. in Danby Pty.Ltd. v Commissioner of Patents (1988) AIPC 90-489, but I make no comment on that in view of my ultimate conclusion in this matter. I also note that there are substantial differences between patent and trade mark laws, which make it dangerous to draw analogies from trade mark decisions.

8. It appears to me that it would also cause a serious upset to the patent system to permit persons who have not sought to oppose, to intervene after advertisement of acceptance and to say that although they had a policy of not checking on applications, they now wish to oppose. Loss of opportunity to oppose is not disastrous. A patent when granted is often not worth the paper it is written on until tested judicially, in revocation proceedings in a court of competent jurisdiction. That opportunity remains open to Weir.

9. Accepting for the purposes of argument that I have a discretion to extend time to lodge notice of opposition, in terms of s.160(2) of the Act, it seems to me that in the circumstances of this case it is proper to decline to so do. As the Supervising Examiner of Patents observed, it is due to a deliberate policy of Weir that it did not maintain a watch for pending patent applications or for their acceptance. I do not regard Weir's actions as falling within the phrase "error or omission on the part of the person concerned" nor as involving "circumstances beyond the control of the person concerned".

10. It seems to me proper to affirm the decision of the Supervising Examiner of Patents, and to affirm his decision that Weir pay the costs of the proceedings in the Patent Office. There is no power to award costs of the hearing before this Tribunal. Time for sealing of the patent to mature from Application No.563613 is extended until the expiry of six (6) calendar months from the date of this decision.