ENVIRONMENTAL SYSTEMS PRODUCT HOLDINGS INC. v. DPC TECHNOLOGY LTD

HCMP1465/2008

                     IN THE HIGH COURT OF THE

       HONG KONG SPECIAL ADMINISTRATIVE REGION

                     COURT OF FIRST INSTANCE

         MISCELLANEOUS PROCEEDINGS NO. 1465 OF 2008

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BETWEEN

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JUDGMENT

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1.  This is an application for the revocation of the respondent’s Hong Kong Short-Term Patent No. 1080272 in respect of a “Method and System for Remote Emission Measurement” (“ST Patent”).

A. THE ST PATENT

2.  The respondent is the proprietor of the ST Patent. The application was made on 20 January 2006 and granted on 21 April 2006. The invention is being described as a Remote Sensing Emission Measurement System designated to measure vehicle emissions. The claims in the ST Patent are stated as follows :

“What is claimed is:

1.  A remote vehicle emissions measurement system comprising :

a radiation source for emitting a light beam of a set of predetermined wavelength bands through an emission plume of a vehicle;

an adaptable radiation detection unit for receiving the set of predetermined wavelength bands passing through the emission plume;

an image capture unit for capturing or recording an image of the vehicle;

a speed and acceleration detection unit for detecting the speed and acceleration of the vehicle; and

a processing unit respectively interconnects with the speed and acceleration detection unit, the image capture unit and the radiation detection unit for analyzing and processing the data collected by the speed and acceleration detection unit, image capture unit and radiation detection unit;

characterized in that,

the radiation source comprises an infrared source, an ultraviolet source or a combination thereof,

the adaptable radiation detection unit comprises one or more detachable and expandable detecting elements for receiving the set of predetermined wavelength bands and producing a plurality of corresponding response concurrently at any one time instant as required; and

the processing unit comprises one or more specific software and hardware for calculating the concentrations of various gas components thereof, the relative ratio of one gas component to the others, or the absolute emission values of each of the gas components thereof.

2.  The system as claimed in claim 1, wherein it further comprises one or more reflectors mounted in a manner to allow the radiation from the source to be directed to the one or more detecting elements thereof.

3.  The system as claimed in claim 1 or 2, wherein each of the one or more detachable and expandable detecting elements further comprises one or more alternative photodetectors enclosed therein in a compact manner for respective wavelength band detection, thereby forming an array of photodetectors for producing concurrently a plurality of response thereto.

4.  The system as claimed in claim 3, wherein a band pass filter is provided before each of the one or more alternative photodetectors for respective wavelength band detection.

5.  The system as claimed in claim 1 or 2, wherein the radiation detection unit alternatively comprises a spectrometer or a photomultiplier tube.”

B. THE APPLICATION FOR REVOCATION

3.    By its Originating Summons, the applicant applied for the revocation of the ST Patent.  In the Particulars of Objection to the Validity of the respondent’s ST Patent attached to the Originating Summons, the applicant set out the following two grounds for revocation :

(1)  Relying on 8 published patents in respect of the same subject and other evidence, the applicant contended that the invention claimed in the ST Patent is not a patentable invention since the alleged invention is not new and does not involve an inventive step.  Accordingly, it failed to satisfy section 93(1) of the PO.

(2)  The specification and claim for the invention claimed in the ST Patent do not disclose the invention in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art.  The specification and claim of the ST Patent do not contain adequate written description and/or graphic representation of the invention claimed to enable people with ordinary skill in the art to build or construct the system, in particular, the alleged “detachable and expandable detecting elements” and to carry out the invention claimed in all its manifestations.

4.    The respondent opposed the application.  It contended that the invention claimed in the ST Application does involve an inventive step and/or is new and that the specification and claim for the invention claimed in the ST Patent dosufficiently disclose the invention.

5.    By the Order made by Sakhrani J on 24 February 2009, the proceedings were ordered to be continued as if begun by writ.  (For the avoidance of doubt, this court had clarified with the parties at the hearing that this Order was not made on the basis that there are factual disputes that should be resolved at trial.  Had it been otherwise, it would have raised the question of whether this Order would preclude the applicant from proceeding with the present Order 14 application.)  The present application is an application by the applicant for summary judgment against the respondent under Order 14.

C.  THE LAW

6.  Sine the present application does not raise any issues of law, I believe the following brief summary of the relevant legislative regime and the applicable approaches is sufficient.

C.1 Patentability

7.  Under section 93(1) of the Patent Ordinance, Cap.514 (“PO”), an invention is patentable if it is susceptible of industrial application, is new and involves an inventive step. Thus, three requirements have to be satisfied. In the present case, only the second and third requirements are relevant. There is no dispute between the parties concerning whether the subject-matter of the ST Patent is a patentable subject-matter (which is dealt with in section 93(2) of the PO).

8.  As regards the second requirement (novelty), section 94(1) of the PO provides that an invention shall be considered to be new if it does not form part of the state of the art. Section 94(2) explains the concept of “the state of the art” as follows :

“(2)  The state of the art shall be held to comprise everything made available to the public (whether in Hong Kong or elsewhere) by means of a written or oral description, by use, or in any other way—

(a)  …

(b)  before the date of filing of an application for a short-term patent for the invention or, if priority was claimed, before the date of priority,

whichever is the earlier.”

9.  Novelty is a question of fact. The proper approach to be applied has been expounded in leading cases like General Tire & Rubber Co. v Firestone Tyre & Rubber Co. Ltd [1972] RPC 457 (which has generally been followed in Hong Kong, see, e.g., Octopus Cards Ltd v ODD.HK Ltd, unrep., HCMP104/2007, 17 March 2009, L. Chan DHCJ).

10.  As regards the third requirement (inventive step), section 96(1) of the PO provides that “An invention shall be considered as involving an inventive step if, having regard to the state of the art, it is not obvious to a person skilled in the art”. As to what is or is not “obvious” for the purpose of section 96(1), the law is relatively settled and references can be made to cases like Tanashin Denki Co. Ltd v King Long Industrial Ltd [1997] 4 HKC 215 (at pp.226-227); Windsurfing International Inc. v Tabur Marine (Great Britain) Ltd [1985] RPC 59 (at p.73) and Pozzoli SpA v BDMO SA [2007] FSR 872 (pp.878-879). In short, the approach can be summarized as follows :

(1)  (a)  identify the notional “person skilled in the art”;

(b)  identify the relevant common general knowledge of that person;

(2)  identify the inventive concept of the claim in question or, if that cannot be readily done, construe it;

(3)  identify what, if any, differences exist between the matter cited as forming part of the “state of the art” and the inventive concept of the claim or the claim as construed; and

(4)  viewed without any knowledge of the alleged invention as claimed, do those differences constitute steps which would have been obvious to the person skilled in the art or do they require a degree of invention.

C.2  Short-term patent

11.  As stated above, the patent which is subject-matter of this application is a short-term patent. Short-term patents are governed by Part XV of the PO. Applications for short-term patent are governed by section 113 of the PO, which provides as follows :

“Every application for a short-term patent shall be signed by the applicant and be filed with the Registrar in the prescribed manner and shall contain—

(a)  a request for the grant of a short-term patent;

(b)  a specification which provides on the face of it for—

(i)  a description of the invention to which the application relates;

(ii)  one or more claims but not exceeding one independent claim;

(iii)  any drawings referred to in the description or the claim or claims;

(c)  an abstract; and

(d)  a search report in relation to the invention.”

12.  As explained by section 113(8), the reference to “search report” means a report : (a) by a prescribed search authority of a search undertaken by that authority as to the prior art in relation to the invention, based on the claims and having due regard to the description and drawings (if any); and (b) which contains the prescribed information. Further, under Rule 72(d) of the Patents (General) Rules, a search report shall contain the citations of the documents considered to be relevant.

13.  An application for a short-term patent has to satisfy the “minimum requirements” and the “formal requirements”, which are respectively provided for in sections 114 and 115 of the PO. Under section 114(1), the Registrar shall examine the application to see if it satisfies the requirements specified in section 114(2) for the accordance of a date of filing (i.e. the “minimum requirements”). On the other hand, under section 115(1), if a short-term patent application has been accorded a date of filing, and is not deemed to be withdrawn by virtue of section 113(5), the Registrar shall examine whether the requirements of section 113 and of any rules made for the purpose of that section (i.e. the “formal requirements”) have been satisfied.

14.  Section 117 of the PO makes it crystal clear that the examination in respect of a short-term patent application is only a formality examination. It provides as follows :

“Except as expressly provided to the contrary, nothing in this Part [i.e. Part XV] providing for the examination by the Registrar of an application for short-term patent for an invention shall be construed as imposing any obligation upon the Registrar to consider or to have regard to, for the purpose of such examination, any question as to—

(a)  the patentability of the invention;

(b)  whether the applicant is entitled to any priority claimed in the application;

(c)  whether the invention is properly disclosed in the application; or

(d)  any matter specified in section 45, 77, 78, 79, 93, 94, 96, 97, 100, 109, 110, 111(2) to (6) or 120(2).”

15.  The position becomes even clear when one looks at section 118(1), which provides as follows :

“If on examination by the Registrar under section 115(1) an application for a short-term patent is found to have satisfied the requirements of that provision, or if on a subsequent examination the deficiencies noted by the Registrar under section 115(2) are found to have been corrected in according with the rules, then as soon as practicable after such examination, but subject to sections 119 and 124, the Registrar shall grant a short-term patent for the invention.”

16.  By reason of sections 117 and 118 of the PO (which only put in place a system of formality examination), the granting of a short-term patent per se does not mean that the invention claimed in the relevant short-term patent is a patentable invention in that it is, amongst others, new and involves an inventive step. See, e.g. : Octopus Cards Ltd v ODD.HK Ltd (above), paragraph 2.

17.  Mr Felix Pao, counsel for the applicant, described the short-term patent application system under Part XV of the PO as an “honour system” as it depends heavily on the integrity and honesty of an applicant in that an applicant would not make any application in respect of an claimed invention known to be not patentable for whatever reasons. I agree.

18.  The short-term patent application system is different from the system put in place for standard patents in Part II of the PO. Furthermore, the concept of short-term patents was first introduced by the PO to provide incentives to small-scale industries to invent and to give their inventions the protection they deserve: see Kenny Wong & Alice Lee, A Practical Approach to Intellectual Property Law in Hong Kong (S&M Asia), paragraph 4.4.2 (p.218). Viewed against such background, the simplicity of the short-term patent application system is not difficult to understand.

C.3 Revocation

19.  Revocation of patent is dealt with in sections 91 and 92 of the PO. Given the two grounds relied on by the applicant, the relevant provisions in section 91(1) are as follows :

“Subject to this Ordinance, the court may on the application of any person by order revoke a patent for an invention on (but only on) any of the following grounds, that is to say—

(a)  that the invention is not a patentable invention;

…

(c)  that the specification of the patent does not disclose the invention in a manner sufficiently clear and complete for it to be performed by a person skilled in the art …”

20.  Given the present application is made under Order 14, no order shall be made to revoke the ST Patent unless it is plain and clear that the respondent does not have any arguable defence and that there is no other reasons for trial. Since the approach applicable in Order 14 application is well settled and the cases are well-known, I will not discuss it here. Insofar as may be necessary, reference can be made to Hong Kong Civil Procedure 2010, Vol.1, paragraph 14/4/8 to 14/4/12 (pp.230-234).

D. 1^ST GROUND : NOT PATENTABLE INVENTION

D.1 The applicant’s case

21.  Under this ground (which is made under section 91(1)(a) of the PO), it is the applicant’s case that the invention claimed in the ST Patent was already part of the state of the art available to the public before the priority date of the alleged invention. In support of this ground, the applicant cited eight published patents in respect of the same subject. Of these eight published patents, five are United States patents and the remainingthree are Hong Kong patents.

22.  The five United States patents relied on by the applicant were also cited in the Australian Patent Office International-Type Search Report (“APO Search Report”) lodged by the respondent for its short-term patent application. Having identified these five prior art references (which are all in respect of U.S. patents), the APO Search Report stated that these five prior art references are of particular relevance in that they show that the invention claimed in the ST Patent “cannot be considered novel or cannot be considered to involve an inventive step” when each of the art reference is taken alone.

23.  Based on the art reference in respect of US Pat. App. Pub. No. 2003/0040854 A1 (Rendahl, et al.) (27 February 2003) (“Prior US Patent”) (which is one of those identified in the APO Search Report), the patent counsel of the applicant has prepared a Claim Element Comparison Chart (see exhibit marked “DAB-2” referred to in the Affidavit of Daniel A. Burgard sworn on 28 July 2008). According to this Claim Element Comparison Chart, the claim elements set out in the ST Patent are the same or equivalent to those contained in the art reference in respect of the Prior US Patent.

24.  Further, an Affidavit of Daniel A. Burgard (“Mr Burgard”) was filed in support of the present application. Mr Burgard is an Assistant Professor of Chemistry at the University of Puget Sound in Tacoma, Washington, U.S.A. His research involved the use and manipulation of an exhaust remote sensing device. Mr Burgard is also the author of numerous technical articles and reports concerning remote vehicle emissions sensing. I accept that Mr Burgard is qualified to comment on the technical matters involved in this application.

25.  According to Mr Burgard, he has reviewed the ST Patent, the prior art references and the Claim Element Comparison Chart as well as analyzed the claims in the ST Patent in an element-by-element manner. Mr Burgard agreed with the comparison and analysis set out in the Claim Element Comparison Chart and opined that each of the five claims of the ST Patent can be found in the single part reference in respect of the Prior US Patent.

26.  In addition, Mr Burgard pointed out that he has in fact used and manipulated remote sensing devices performing all of the claims stated in the ST Patent prior to its application date of 20 January 2006.

D.2 The respondent’s defence

27.  The respondent disputed the applicant’s contention that the invention claimed in the ST Patent is not new or does not involve an inventive step. In the written submissions lodged on behalf of the respondent, a total of four arguments were put forward. Two affirmations were filed in support of its opposition, both were by Mr Poon Tak Chi Philip (“Mr Poon”). Mr Poon is a director of the respondent. In one of the affirmations, it is stated that Mr Poon was educated in the United States in the field of Remote Sensing and obtained a Master degree and a Technical Certificate in the area of Remote Sensing from the California State University in Los Angeles. Further, it is stated that Mr Poon has been involved in the application and analysis of remote sensing since 1998 and has been involved in the research and development of remote sensing devices since 2006.

28.  Before considering the evidence adduced by the Respondent, it is perhaps relevant to deal with one preliminary issue. The assertions in respect of Mr Poon’s academic background is not supported by documentary proof, although the relevant affirmation was prepared and filed by the then solicitors acting for the respondent (who ceased to act shortly before this hearing). Further, the assertions in respect of Mr Poon’s practical experience are very general and without particulars. The named inventor in the ST Patent is not Mr Poon, but a Mr Luk Wai Ming. Taking these into account and also the consideration that the assertions made by Mr Poon behalf of the respondent are self-serving, it is questionable whether Mr Poon is in as good a position as Mr Burgard to deal with the technical matters relevant to the present application. Whilst this point alone will not be fatal to the respondent’s case, it remains relevant when considering the respondent’s evidence (although I remain myself that this court should not, when dealing with an Order 14 application, embark upon a mini-trial).

29.  Insofar as this ground is concerned, the respondent’s evidence and submissions boil down to the following points.

30.  First, the respondent contended that “the most distinctive element” of the ST Patent is that “the adaptable radiation detection unit comprises one or more detachable and expandable detecting elements for receiving the set of predetermined wavelength bands and producing a plurality of corresponding response concurrently at any one time instant as required”. It is claimed that this feature is significantly different from any other invention in the filed of remote sensing device.

31.  I reject this line of defence raised by the respondent.

32.  In paragraph 8 of his Affidavit, Mr Burgard made specific reference to this so-called “most distinctive element” and made the following two points (the first is relevant to this ground whereas the second is relevant to the second ground discussed below) :

(1)  He is unable to discern any substantive differences from what was disclosed in the relevant part of the art reference in respect of the Prior US Patent.  Nor is he able to tell as to how the “detachable and expandable detecting elements” can be regarded as novel or non-obvious in light of the prior art reference concerning the Prior US Patent and as to how these alleged novel detector elements could perform anything that a detector according to prior art reference in respect of the Prior US Patent could not perform.

(2)  Even if the “detachable and expandable detecting elements” were indeed something new and not an obvious or trivial variation of what was known from the prior art references (including those concerning the Prior US Patent), there is simply no enough information in the ST Patent about this alleged novel feature so that a person with ordinary skill in this art field can understand and appreciate the difference between this claimed detector and the detector taught by the art reference in respect of the Prior US Patent.  With inadequate written description and graphic presentation of the claimed invention, it would be impossible to practice the invention for obtaining the claimed benefits without undue experimentation.

33.  Having considered all the relevant evidence and the submissions by the parties and applying the approaches stated in section C.1 above, I think Mr Burgard is right. I do not think the so-called “most distinctive element” of the ST Patent is new or involves any inventive step as alleged by the Respondent.

34.  The so-called “most distinctive element” of the ST Patent was considered and dealt with in the Claim Element Comparison Chart mentioned above. It shows that this element of the ST Patent is indeed one of the features shown in the art reference of the Prior US Patent. The respondent contended that the comparison made in this Claim Element Comparison Chart is invalid. Putting aside the question of whether Mr Poon is in a qualified position to make such an assertion, the respondent has adduced no objective evidence to support this contention. Apart from bare assertions not supported by evidence, the respondent failed to explain or establish to what extent, if any, this element of the ST Patent is different from the relevant part of the art reference in respect of the Prior US Patent. The respondent’s evidence in this regard is no more than a paraphrase of the specification of the ST Patent.

35.  As Mr Burgard pointed out, there were in existence remote sensing device system with the feature of simultaneously producing “a plurality of corresponding response concurrently at any one time instant” prior to the filing date of the ST Patent. Mr Burgard gave details of such prior patents and their relevant art references (i.e. the Prior US Patent, US Pat No. : 5,831,267 and US Pat No. : 5,726,450). There is really no answer to this aspect of the Applicant’s evidence, although the burden rests fairly and squarely on the respondent to show a trial issue and to condescend on particulars. See Hong Kong Civil Procedure 2010, Vol.1, §14/4/4 (pp.228-229); Toy Major Trading Co. Ltd v Hang Shun Plastic Toys Ltd[2007] 3 HKLRD 345, per Ma CJHC at paragraph 12 (p.349).

36.  The second line of defence put forward by the respondent concerns the APO Search Report. In short, the respondent contended that no weight should be given to the APO Search Report since it has no chance to challenge its contents. I accept that the respondent has no chance to challenge the contents of the APO Search Report. However, this does not mean that the APO Search Report cannot be relied on by the applicant to support this application. By identifying prior art references including that in respect of the Prior US Patent, the APO Search Report clearly shows that the invention claimed in the ST Patent is not new and does not involve any inventive step. For the reasons discussed above, the Respondent’s evidence does not come close to show that the features of the ST Patent were already in existence prior to the filing date of the ST Patent. In the circumstances, the absence of a chance to challenge the APO Search Report is neither here nor there. Even if the respondent does have a chance to challenge the APO Search Report, the challenge is doomed to fail.

37.  In addition, what the respondent could have done is to apply to challenge the contents of the APO Search Report before making application for the ST Patent. This was not done and there is no explanation as to why such a step was not taken.

38.  The third line of defence raised by the respondent is that the invention claimed in the ST Patent has never been rejected by any recognized patent office as being a patentable invention. This contention, however, has been conclusively proved to be wrong by the applicant.

39.  The applicant has adduced evidence concerning the Respondent’s Standard Patent counterpart for the alleged invention under US Patent applicant No. 11/651,587 submitted in the name of the alleged inventor Mr Luk Wai Ming (i.e. the same inventor claimed in the ST Patent) and copies of the US Patent Office Action Decisions in respect of its initial rejection and final rejection of the application. The grounds of rejection are similar to the points now made by the applicant. Further, the applicant adduced evidence showing that this US Patent application was only allowed after an amendment was made and that the amendment is nowhere to be found in the claims made in the ST Patent. A summary of the position is set out in a table helpfully prepared by the applicant. For easy reference, the table (with the necessary modifications to take into account of the nomenclature used here) is reproduced below :

U.S. Status	Claim 1 in U.S. Application	Claim 1 in ST Patent	Comments
Original and rejected	A remote vehicle emissions measurement system comprising : a radiation source for emitting a light beam of a set of predetermined wavelength bands through an emission plume of a vehicle;	A remote vehicle emissions measurement system comprising : a radiation source for emitting a light beam of a set of predetermined wavelength bands through an emission plume of a vehicle;	This claim in the ST Patent is substantially similar to the claim rejected in the U.S.
	an adaptable radiation detection unit for receiving the set of predetermined wavelength bands passing through the emission plume;	an adaptable radiation detection unit for receiving the set of predetermined wavelength bands passing through the em is ~ iOfl plume;
	a processing unit interconnects with the radiation detection unit for analyzing and processing the data collected by the radiation detection unit; characterized in that the adaptable radiation detection unit comprises one or more detachable and expandable detecting elements for receiving the set of predetermined wavelength bands and producing a plurality of corresponding response concurrently at anyone time instant as required; and	an image capture unit for capturing or recording an image of the vehicle; a speed and acceleration detection unit for detecting the speed and acceleration of the vehicle; and a processing unit respectively interconnects with the speed and acceleration detection unit. the image capture unit and the radiation detection unit for analyzing and processing the data. collected by the speed and acceleration detection unit. image capture unit and radiation detection unit;
	the processing unit comprises one or more specific software and hardware for calculating the concentrations of various gas components thereof, the relative ratio of one gas component to the others, or the absolute emission values of each of the gas components thereof.	characterized in that the radiation source comprises an infrared source, an ultraviolet source or a combination thereof the adaptable radiation detection unit comprises one or more detachable and expandable detecting elements for receiving the set of predetermined wavelength bands and producing a plurality of corresponding response concurrently at anyone time instant as required; and the processing unit comprises one or more specific software and hardware for calculating the concentrations of various gas components thereof, the relative ratio of one gas component to the others, or the absolute emission values of each of the gas components thereof.
Amended and allowed	A remote vehicle emissions measurement system comprising: a radiation source for emitting a light beam of a set of predetermined wavelength bands through an emission plume of a vehicle;		Such amendment was not and could not be, made to the claim for the ST Patent.
	an adaptable radiation detection unit comprising a plurality of detachable and expandable detecting elements, the plurality of detecting elements adapted to simultaneously receive the set of predetermined wavelength bands passing through the emission plume and produce a plurality of corresponding responses concurrently at any one time instant as required, the plurality of detachable and expandable detecting elements being grouped together in a compact manner;
	a processing unit interconnects with the radiation detection unit for analyzing and processing the data collected by the radiation detection unit, the processing unit comprising one or more specific software and hardware for calculating the concentrations of various gas components thereof, the relative ratio of one gas component to the others, or the absolute emission values of each of the gas components thereof; and
	Means for checking whether there is any transient change between CO and NO to determine if the vehicle is in transient mode for the elimination of unwanted erroneous data points.		The added element (underlined) that has resulted in the allowance of the amended U.S. claim is nowhere to be found in the claim of the ST Patent

40.  The applicant suggested that the respondent seeks to mislead this court by not disclosing the full picture in respect of the initial rejection and subsequent approval of this US Patent Application. For the purpose of deciding this application, I do not think it is necessary to make any express ruling on this issue. Suffice it to say that there is prima facie evidence to support this line of argument by the applicant. In any event and more importantly, the evidence adduced by the applicant in respect of this US Patent Application fortifies my conclusion that the invention claimed in the ST Patent is not new and does not involve any inventive step, which is sufficient to dispose of the present application.

41.  In the circumstances, I agree with the Applicant’s submission and do find that a case for revocation under section 91(1)(a) of the PO has been made out. As the respondent failed to show any triable issues or any other reasons for a trial, I rule that the ST Patent should be revoked on the ground that the invention claimed in the ST Patent is not a patentable invention as it is not new and does not involve any inventive step. For this reason alone, the Application’s application for revocation should be allowed and I so order.

E. 2^ND GROUND : INSUFFICIENT SPECIFICATION

42.  This second ground is made under section 91(1)(c) of the PO. The basis has been summarized in paragraph 32(2) above (which is the point made in paragraph 9 of the Affidavit of Daniel A. Burgard). The respondent also disputed this ground. In light of my conclusion on the first ground discussed above, it is not necessary for this court to deal with this second ground. Suffice it to say that had the present application been made solely on this ground, I would be reluctant to order revocation. In any event, since the part of the specification of the ST Patent relevant to this second ground (whether taken individually or together with the rest of the claim in the ST Patent) does not show any novelty, I take the view that the order of revocation should be made under section 91(1)(a) instead of (c) of the PO.

F. CONCLUSION AND ORDER

43.  For the reasons set out above in respect of the first ground for revocation, I allow the present application and grant an Order that the ST Patent be revoked under section 91(1)(a) of the PO. I also make an Order nisi that the respondent do pay to the applicant the costs of and incidental to these proceedings (including the costs of and incidental to the present Order 14 application and the costs previously reserved, if any).

44.  Lastly, it remains for me to express my gratitude to the parties (especially Mr Pao, Counsel for the applicant) for their assistance.