Israel Patent 204070 to Reckit and Colman titled “SPRAYING DEVICE AND METHOD OF USING SAME” relates to a spray apparatus with a safety feature to check that it is not refilled by a third party. It was allowed, and published for opposition purposes on 28 February 2013. On 28 May 2013, Sano Bromium Factory LTD. filed an opposition, claiming that all the claims were non-patentable due to novelty or obviousness considerations in light of WO 2005/113420 and WO 2005/009325. Furthermore, Sano-Bromium argued that the claims were poorly worded and unclear and lacked support from the specification.
Sano-Bromium subsequently withdrew their opposition on 24 December 2013, and the opposition file was closed. However, under Section 34 of the Patent Law, the Deputy Commissioner put herself in the shoes of the opposer and compared the claims with the two citations and reasoned that they were, indeed, unpatentable.
The Deputy Commissioner published a closely argued comparison between the claims and the two citations and provisionally refused the patent, giving the applicant 30 days to respond.
The purpose of Section 34 is to prevent patents issuing when they shouldn’t. The Deputy Commissioner is correct to analyze the grounds for opposition on their merits and to consider whether the opposition should continue even if the opposer loses interest.