Rockwool International A/S v Knauf Insulation Ltd

By a decision dated 28 May 2019, Mr Huw Jones, Hearing Officer acting for the

Patent number GB2451719 (the ‘719 Patent ).

Patent number GB2496951 (the ‘951 Patent ).

Rockwool appealed the Decision on seven grounds, although at the hearing of the appeal, one ground (Ground 5) was not pursued. I describe these grounds in Section C below. Before I do so, however, it is necessary to describe the Patents and the relevant technical facts. I do so in Section B below.

The application for the ‘719 Patent (the Application ) has a priority date of 3 August 2007. The Patents concern the manufacture of binders , that is substances for binding non- or loosely assembled matter. Binders are used, most usefully, to bind together mineral wool to form a useful material for the insulation of houses and other buildings.

The opening paragraphs of the Application state:

There are a number of aspects of this that require explanation in order to be comprehensible to the layman:

There is considerable emphasis on binders that are substantially formaldehyde free.

The references to WO 2007/014236 are references to an international application for a patent published under the Patent Cooperation Treaty under this number. Before the Hearing Officer, this application was referred to as D3 (which, I understand, was a reference to tab 3 of bundle D before the Hearing Officer). I shall adopt the reference D3. Rockwool relied upon D3 as part of the prior art in relation to the Patents, and it will be necessary to describe D3 in greater detail below.

The “Maillard reactants” and the “Maillard type reaction” referenced refer to a chemical reaction between amino acids and sugars, which reaction gives browned food its distinctive flavour. (Footnote: ³) Seared steaks and many other foods undergo this reaction, which I shall refer to as the Maillard reaction . The Maillard reaction causes melanoidins – brown, high molecular weight heterogeneous polymers – to form. As is clear from the foregoing description, there are two reactants involved in a Maillard reaction:

A sugar; and

An amino acid – sometimes referred to as the amine component. Amino acids are organic compounds that contain amine and carboxyl. They are part of a broader ground of acids – also organic compounds – known as carboxylic acids.

An “acid precursor” is simply a reference to a compound – here, an acid – that participates in a chemical reaction that produces another compound – here, the melanoidins. The acid precursor will be derived from a salt.

Salts and acids can be “organic” or “inorganic”, terms used both in the Application set out above and in the foregoing paragraphs. A basic distinction in chemistry is between organic and inorganic materials: the distinction is that organic materials have carbon hydrogen bonds, whereas inorganic materials do not. Acids and salts can be either inorganic (lacking carbon hydrogen bonds) or organic (having carbon hydrogen bonds).

D3 teaches that the Maillard reaction creates a binder that is formaldehyde free or substantially so. It was Rockwool’s contention on appeal – which was disputed by Knauf – that D3 taught that both organic and inorganic acids/salts, reacting with a sugar, could produce such a binder. Knauf contended that D3 only taught that organic acids/salts, reacting with a sugar, could produce such a binder and that the inventive step in the Application – and so in the ‘719 Patent – was the “surprising” discovery that an acid precursor derivable from an inorganic salt should provide a suitable acid precursor in an otherwise apparently similar binder system.

The ‘719 Patent was granted to Knauf on 26 December 2012. During the course of the application for the ‘719 Patent, the ‘951 Patent was divided from the ‘719 Patent and was granted to Knauf on 17 July 2013.

During the course of the proceedings before the Hearing Officer, Knauf sought to amend claim 1 in both the ‘719 Patent and the ‘951 Patent. The nature of these proposed amendments are helpfully set out in paragraphs 11 and 12 of the Decision: (Footnote: ⁴)

The proposed amendments to claim 1 of the ‘719 Patent were as follows:

providing a substantially formaldehyde free binder solution having a pH of greater than 6 comprising:

a carbohydrate selected from a monosaccharide, a monosaccharide in its aldose or ketose form, a reducing sugar and a carbohydrate having a reducing aldehyde;

an acid precursor derivable from an inorganic salt, in which the acid precursor comprises a species selected from the group consisting of sulphates, phosphates and nitrates;

a source of nitrogen; and

water;

spraying the binder solution on to the mineral fibres between formation of the fibres and collection of the fibres to form a batt; (Footnote: ⁵) and

curing the binder to form a thermoset binder, in which the curing of the binder occurs in a curing oven using forced hot air circulation. ”

The proposed amendments to claim 1 of the ‘951 Patent were as follows:

As I have noted, there were six grounds of appeal live before me. (Footnote: ⁶) The grounds of appeal were pleaded in Rockwool’s grounds of appeal (the Grounds of Appeal ) and expanded upon by Rockwool in its written appeal submissions. In summary, they are as follow:

Ground 1: the Hearing Officer erred in relation to the level of knowledge of the Maillard reaction. Ground 1 is based upon paragraphs 2 and 4 of the Grounds of Appeal, (Footnote: ⁷) which provide as follows:

Ground 2: failure to distinguish that the ‘951 Patent is much broader than the ‘719 Patent. Ground 2 is based upon paragraph 3 of the Grounds of Appeal, (Footnote: ⁸) which provides as follows:

Ground 3: failure to consider the different motivation for the broader ‘951 Patent. Ground 3 is based upon paragraph 5 of the Grounds of Appeal, (Footnote: ⁹) which provides as follows:

Ground 4: failure by the Hearing Officer to give any reason for the added matter and plausibility findings. Ground 4 is based upon paragraph 6 of the Grounds of Appeal, (Footnote: ¹⁰) which provides as follows:

Ground 5: added matter. Ground 5 is based upon paragraph 7 of the Grounds of Appeal, (Footnote: ¹¹) which provides as follows:

Ground 6: no plausible invention in light of the findings on obviousness. Ground 6 is based upon paragraph 7 of the Grounds of Appeal, (Footnote: ¹²) which provides as follows:

Ground 7: no basis for the entirety of the amended claims of the ‘951 Patent. Ground 7 appears to be based on paragraph 8 of the Grounds of Appeal, (Footnote: ¹³) which provides as follows:

To a certain extent – as Rockwool accepted – these Grounds are related. Grounds 1 to 3 relate to the Hearing Officer’s findings on obviousness. Grounds 4 to 7 relate to the Hearing Officer’s findings on added matter and plausibility, although (as Rockwool also accepted) there is a link between these Grounds and Hearing Officer’s findings on obviousness. (Footnote: ¹⁴)

Whilst Ground 1 relates to both Patents, Grounds 2 to 7 are confined to the ‘951 Patent. (Footnote: ¹⁵)

I shall consider the Grounds of Appeal in the following Sections of this judgment. Before proceeding to the various Grounds of Appeal, I should also say something about the approach to be taken in this appeal.

First, in an appeal against a finding of non-obviousness, the court should only interfere with the decision below if there has been an error of principle. (Footnote: ¹⁷)

Secondly, although the parties dispensed with cross-examination of witnesses before the Hearing Officer by agreement, this did not entitle me to substitute my view for that of the Hearing Officer absent: (i) an error of principle; (ii) a failure on the part of the Hearing Officer to take account of material evidence before him; or (iii) the Hearing Officer paying regard to immaterial evidence. That said, were I to take the view that the Decision should be varied or set aside on appeal, given the absence of cross-examination by agreement, there would be no need to remit matters to the Hearing Officer.

Thirdly, I should not be unduly critical of the way in which the Decision is expressed: my starting point should be that an experienced tribunal such as the Hearing Officer in this case would know how to perform his functions and what matters he should take into account. (Footnote: ¹⁸)

The “person skilled in the art” is expressly referred to in the statutory provisions relating to obviousness and insufficiency. The correct identification of such a person (or team of persons) can have important consequences for the identification of the common general knowledge in the art, the construction of the specification, and therefore for the issues of infringement and/or validity. (Footnote: ¹⁹) As Jacob LJ explained in Technip France SA’s Patent : (Footnote: ²⁰)

As Terrell notes, ²¹ disputes as to the identity of the person skilled in the art often involve the following questions:

What is the relevant art?

Should the “person skilled in the art” be taken as comprising a team, each member bringing a particular skill, and if so then what is the composition of that notional team?

What are the attributes and qualification, and in particular the level of skill, of the notional skilled person or team?

The general characteristics or attributes of a person skilled in the art were described by Lord Reid in Technograph v. Mills & Rockley (Footnote: ²¹) and expanded upon by Jacob LJ in Technip France SA’s Patent : (Footnote: ²²)

Drawing again from Terrell : (Footnote: ²⁵)

In its written appeal submissions, Rockwool drew to my attention similar expositions by Aldous LJ in Beloit Technologies Inc v. Valmet Paper Machinery Inc (Footnote: ²⁷) and Laddie J in Raychem Corp’s Patents . (Footnote: ²⁸)

Section 3 of the Patents Act 1977 provides:

The word “obvious” is an ordinary word of English usage, and the courts have resisted attempts to re-articulate the statutory requirement. (Footnote: ²⁹) That said, it is clear that “obvious” includes circumstances where it is obvious to try . In Medimmune Ltd v. Novartis Pharmaceuticals , (Footnote: ³⁰) Kitchin LJ noted:

The Hearing Officer considered the identity of the person skilled in the art and the common general knowledge of that person in [31] to [44] of the Decision. His conclusions were as follow:

The Hearing Officer then proceeded to consider the question of inventive step – or obviousness, to express the converse – in [57] to [71] of the Decision. His approach and conclusions were as follows:

He approached the question applying the test in Pozzoli SpA v. BDMO SA , (Footnote: ³¹) which both parties agreed was the test to apply. (Footnote: ³²) Essentially, having identified the notional person(s) skilled in the art and the relevant common general knowledge of that person (or those persons), the court must:

Identify the inventive concept of the claim in question, if necessary construing the patent to do so;

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;

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

The Hearing Officer described the inventive concept in the present case in the following terms: (Footnote: ³³)

The Hearing Officer then proceeded to consider the third question, that set out in paragraph 23(1)(c) above. (Footnote: ³⁴) He specifically considered the extent to which the person skilled in the art would be motivated to try the use of different acids in order to improve upon the invention taught in D3. He accepted that the skilled person would be directed not merely to D3 (the prior art described in paragraph 5(2) above) but also to documents cross-referenced in D3. In particular, this would have included a document referred to by the parties as D10 (which label I also use). D10 is a document specifically referenced in D3. D10 is an article in a 1953 edition of the journal Agricultural and Food Chemistry by a John Hodge entitled “Dehydrated Foods: Chemistry of Browning Reactions in Model Systems”.

The Hearing Officer concluded as follows:

[Rockwool] put forward well-reasoned, coherent and detailed arguments for why it would be obvious to substitute citrate with phosphate or sulphate. However, their arguments are based on the starting point that the common general knowledge includes detailed understanding of the Maillard reaction. In my view, the skilled person lacks the detailed understanding required by [Rockwool’s] line of argument. Therefore, I consider it unlikely that the skilled person, in the absence of a deep and detailed knowledge of the Maillard reaction would find it obvious to try alternative acids beyond those suggested in D3 (as summarised, for example, in Figure 1). The fact that ammonium sulphates and ammonium phosphates are known to work as curing agents and that ammonium sulphate is the curing agent used in the phenolformaldehyde binders is not a convincing argument in my view because the chemistry involved in the present formaldehyde free-binders is different to that of the prior art formaldehyde containing binders.

Taking all of this into account, I find that the claims of the ‘719 and ‘951 Patents as they have been proposed to be amended are inventive over the disclosure of D3.”

On appeal it was Rockwool’s contention that the Hearing Officer failed properly to understand the nature of Rockwool’s case. According to Rockwool, it was not Rockwool’s case that a detailed knowledge of the Maillard reaction was part of the common general knowledge of the person skilled in the art. Rather, Rockwool was contending that the person skilled in the art would have derived sufficient knowledge from the prior art – and in particular D3 and D10 – so as to render the Patents noninventive.

I am in some doubt as to whether it can fairly be said that it was no part of Rockwool’s case that a detailed knowledge of the Maillard reaction was part of the common general knowledge of the person skilled in the art. Rockwool’s written submissions to the Hearing Officer contain detailed submissions as to what the person skilled in the art would have known, as part of his or her common general knowledge, about the Maillard reaction, as does Johansson 1. (Footnote: ³⁵) It seems to me that the Hearing Officer’s characterisation of the evidence and submissions of Rockwool in [35] of the Decision was fair, (Footnote: ³⁶) and that he was obliged to reach a view on this evidence and these submissions, which he did at [70] of the Decision. In short, there was no error by the Hearing Officer in this regard.

However, the fact that the Hearing Officer was right to conclude that detailed knowledge of the Maillard reaction was not part of the common general knowledge – and this was not challenged on appeal – says nothing about what the person skilled in the art would have derived from the prior art. The essence of Ground 1 is that the Hearing Officer failed

I consider Ground 1 to be hopeless, and therefore to be dismissed, for the following reasons:

It was common ground before the Hearing Officer that the inventive concept of the Patents was that whereas D3 taught that a sugar-based binder was derivable (amongst other things) from an organic acid, the Patents taught that a similar binder was derivable from an inorganic acid. (Footnote: ³⁸)

In these circumstances, the question must be whether this inventive concept was not, in fact, inventive, because it had in fact been disclosed by D3. Clearly, the Hearing Officer, having considered the terms of D3, concluded that the inventive concept claimed by the Patents was not taught by D3. In short, the Hearing Officer resolved the question I have set out in paragraph 5(6) above in Knauf’s favour. That, at least in the first instance, is a question that I should be slow to interfere with. (Footnote: ³⁹) But, moreover, this is a conclusion that is clearly correct when considering the terms of D3:

I have described the Maillard reactants in paragraph 5(3) above as comprising a sugar and an amino acid. Amino acids are organic compounds.

D3 refers frequently to the Maillard reactants – which is unsurprising – and to the acid element as being an “amine (i.e. amino) reactant”.

It is true that the summary section of D3 contains the following passage:

Thus, considering the terms of D3 itself, the Hearing Officer had to decide whether the use of an inorganic acid – as opposed to the use of an organic acid – to produce

binder was obvious from D3. The Hearing Officer rightly concluded that it was not. The Hearing Officer specifically considered the terms of D3 (Footnote: ⁴⁰) and concluded that this was not so taught:

[Knauf] argues the because the skilled person does not have detailed knowledge or understanding of the Maillard reaction, they would not consider changing the examples given in D3 and use different acids to the citric acid when they don’t know if they will work. They argue that [Rockwool’s] pleading relies on combining information about the Maillard reaction from prior art from the very different field of food science.

Even if the skilled person did consider changing the reactants in the examples of D3, they would not consider a phosphate or sulphate. D3 provides alternative amine components to try, as shown in figure 1, which include proteins, peptides, amino acids and some polycarboxylates. However, D3 does not include phosphates and sulphates in the range of reactants to try. The only alternative to triammonium citrate is another polycarboxylic acid. While D3 makes mention of using inorganic salts, these are present as corrosion inhibitors at a maximum concentration of 2%, not as a reactant as is the case in the ‘719 and ‘951 Patent Claims (as proposed to be amended).”

In these circumstances, it is impossible to see what D10 can add. D10 was, of course, known to D3: indeed, D10 was specifically referred to in D3. D10 clearly did not obviously disclose that inorganic as well as organic acids could be used to create binders, because D10 did not concern binders at all, but the browning reactions in food. In these circumstances, it is very difficult to see how D10 – not having influenced D3 in this regard – can support an obviousness argument in the context of the Patents.

In short, the Hearing Officer reached the correct conclusion, and his decision is not one that I can or should interfere with. As Knauf put it in its written appeal submissions: ⁴²

Given my conclusions regarding the information imparted by D3 and D10 (and any other prior art) to the person skilled in the art, and given the uncontested findings of the Hearing Officer regarding common general knowledge, Ground 1 must be dismissed.

Grounds 2 and 3 are appropriately considered together. They both concern the breadth of the ‘951 Patent, and the contention that the Hearing Officer erred in failing to take this into account in the Decision. Grounds 2 and 3 are expanded upon in paragraphs 54 to 65 of Rockwool’s written appeal submissions.

These Grounds are based upon the difference in the breadth of the claims in the two Patents. This was a difference that was not articulated by Rockwool before the Hearing Officer. At [9] of the Decision, the Hearing Officer notes:

This is not, however, a matter that I need resolve, because it is clear that the concession made by Rockwool before the Hearing Officer and recorded by him in [9] of the Decision was rightly made, and Grounds 2 and 3 are untenable.

It is accepted by Knauf that the claims of ‘951 Patent are different to, and wider than, the claims of the ‘719 Patent. However, Knauf contends that this is a difference of no significance and I consider that contention to be correct. The invention described in both Patents is the same, and the difference in the scope of the claims does not – on the facts of this case – signify. As Knauf put it in paragraph 38 of its written appeal submissions:

For these reasons, Grounds 2 and 3 are dismissed.

Ground 4 contends that the reasons of the Hearing Officer in certain parts of the Decision are insufficient. This insufficiency of reasons relates to the arguments that Rockwool made in relation to added matter and plausibility. Rockwool appeals (or, in the case of Ground 5, did once appeal) the substantive findings of the Hearing Officer both in relation to added matter (Ground 5) and plausibility (Grounds 6 and 7).

It is, in my judgment, more appropriate and clearer to consider the substance of the Hearing Officer’s decisions before considering the terms in which those decisions were expressed, including in particular whether the reasons given were sufficient.

Although – as I have noted – Ground 5 was not pursued by Rockwool at the hearing of the appeal before me, it does seem to me that I need to consider – even if briefly – the substance of Ground 5 in order properly to be able to deal with Ground 4. Fortunately, although Ground 5 was not argued before me at the hearing, both parties addressed the point in their written appeal submissions.

“Added matter” refers to new information which the person skilled in the art would learn on reading the patent, which that person would not learn from reading the application as filed. (Footnote: ⁴¹) As Kitchin LJ put it: (Footnote: ⁴²)

Rockwool contended that the claims of the ‘951 Patent contained added matter. This contention appears to have been factually incorrect. Knauf’s response in its written appeal submissions was as follows: (Footnote: ⁴³)

Because Ground 5 was not pressed, I make no ruling in relation to it. Had it been, on the submissions that I have read and considered, I would have dismissed this Ground.

Plausibility – and for that matter, added matter – came into the case not by way of pleading, but in a document dated 6 March 2019 entitled “Supplemental Grounds for the Revocation of [the Patents]” (the Supplemental Grounds ). This was only days before the hearing itself, which took place on 11 March 2019. The Supplemental Grounds were, ostensibly, in response to the amendments made to the claims in the Patents, which I have described in paragraph 7 above.

Paragraphs 46 to 51 of the Supplemental Grounds introduce the question of plausibility, (Footnote: ⁴⁷) which is an aspect of the sufficiency or insufficiency of a patent. (Footnote: ⁴⁸) The point was introduced by Rockwool in the following way: (Footnote: ⁴⁹)

This was a somewhat self-serving way of seeking to bring points of objection to the Patents before the Hearing Officer without pleading them. An attempt to plead – so shortly before the hearing – would inevitably have resulted in an adjournment. Essentially, Rockwool was deploying the IPO’s duty to be satisfied as to the propriety of the proposed amendments as a means of adding to its case against the Patents.

This, as it seems to me, is highly significant when it comes to considering Grounds 6 and 7, as well as the terms in which the Decision was ultimately framed. In my judgment, the plausibility point raised by Rockwool cannot be regarded as a properly articulated objection to the Patents or any part of them. That is for the following reasons:

The point was never pleaded. This is not an idle, technical, point. The whole point of a pleading is to enable the other parties, and the court, to understand the point in issue, so that the point may be properly dealt with.

Here, the plausibility point is not merely made in a very unparticular way, it was also made very late – as I have said, a matter of days before the hearing. As a result, Knauf was unable to adduce evidence in response. In its written submissions to the Hearing Officer, Knauf stated: (Footnote: ⁵⁰)

The point about the importance of evidence was made by counsel for Knauf at the hearing itself: (Footnote: ⁵¹)

There are two important points that need to be borne in mind when considering Grounds 6 and 7:

First, that plausibility is not a particularly high standard. As Lord Sumption noted as his fourth point in Warner-Lambert :

Secondly, and relatedly, evidence is essential in order to establish whether the invention claimed in a patent is plausible or not. Whilst it is no doubt possible, in an extreme case, to ascertain whether a patent contains so little information as to be self-evidently implausible, the vast majority of cases will require the attack on plausibility to be articulated clearly and supported by evidence.

I turn, then, to the grounds of appeal. Ground 6 is said to be based on paragraph 7 of the Grounds of Appeal. (Footnote: ⁵²) Yet paragraph 7 – which I have set out in paragraph 9(6) above – actually relates to added matter (and is said to support Ground 5 also (Footnote: ⁵³) ) and not plausibility. Ground 7 is similarly vague as to its relationship with the Grounds of Appeal. ⁵⁶

This is no mere technical point. It is clear that the lack of specificity in the grounds of appeal is directly related to the informal manner in which the question of plausibility was raised by Rockwool.

Rockwool’s written appeal submissions are redolent with suggestions that the plausibility of the ‘951 Patent is unsupported by evidence. This is misdirection of the highest order. There was no evidence: none from Rockwool, because the point was raised informally, unsupported by any evidence from Rockwool, and late; and none from Knauf because, even if Knauf had wanted to put in evidence, there was not time for it to do so.

Knauf’s written appeal submissions contend that the plausibility point should be rejected for the following reasons:

One can well understand why the Hearing Officer, who felt able to reject all the new points on the merits, preferred to do that, rather than send the points off on a technicality. But a point on sufficiency/plausibility requires evidence and (if the point had the slightest force) would have required evidence from the patentee to rebut it. It would certainly have been a gross procedural unfairness if the Hearing Officer had upheld the point, given the lack of opportunity for Knauf to adduce evidence on it. The Hearing Officer should therefore not have permitted the new ground to be run and Grounds 6 and 7 should be rejected on that basis.

Second , the point is meritless on the face of the Patent. The ‘951 Patent provides experimental support for the claim that the use of inorganic ammonium salts have at least equivalent properties compared to the binder of D3. The first series of tests and data (page 8 line 12 – top of page 11) relate to both ammonium sulphate and ammonium phosphate. The subsequent series of tests and data (page 11 line 3 – page 14 line 6) relate to ammonium sulphate. It is a fair assumption from that data that inorganic ammonium salts generally will work – no-one has ever pointed to thinking that if both ammonium sulphate and ammonium phosphate work, any other such salt will not work. This satisfies the requirement for plausibility as summarised above.

Third , there is no evidence from Rockwool, who bears the burden, to contradict the foregoing (Rockwool only came up with the point after the evidence had closed). Insufficiency is a question of fact, and in the absence of evidence in support it must fail. (If Rockwool contends that Knauf ought to bear any sort of evidential burden on this point, such contention would be fatal to any argument that it should have been allowed to advance the point before the Hearing Officer.)”

I substantially agree with these submissions. In my judgment, Grounds 6 and 7 must be dismissed for the following reasons:

The issue of plausibility was never pleaded and was not properly before the Hearing Officer as a ground for revoking the Patents or either of them. The only proper basis for raising this issue was – as Rockwool stated in the Supplementary Grounds – in order that obviously defective amendments should not be granted.

In short, the only basis on which the Hearing Officer could properly consider plausibility was to satisfy himself that, on their face, the amendments to the Patents were not so obviously defective on the ground of plausibility that they could not be permitted.

In its Respondent’s Notice, Knauf makes the point that the Decision can also be upheld on the basis that the Hearing Officer should not have entertained the additional points advanced by Rockpool in the Supplementary Grounds. It is not clear to me that the Hearing Officer went any further than satisfying himself that the amendments were not obviously, on their face, implausible. Certainly, that explains the brief way in which this point was addressed in the Decision, something that I consider in greater detail below in relation to Ground 4.

If, however, the Hearing Officer did entertain the plausibility point as a substantive ground on which the Patents – or the amendments to them – might be revoked, then he fell into error. It would have been procedurally entirely improper for him to decide a question of plausibility that was not “open and shut” (in the sense described in paragraph 51(2) above) without ensuring that the point was properly before him and that Knauf, in particular, had had the opportunity to respond.

Judgments should contain reasons for the holdings and findings that they make, and whilst it is the duty of counsel – when receiving a judgment in draft – to draw to the judge’s attention any deficiency in this regard, at the end of the day the judgment is the judge’s responsibility and if the judge’s reasoning does not sufficiently appear from the judgment, then the judgment may (as a last resort) be set aside and the matter tried again. (Footnote: ⁵⁴)

In this case, the Hearing Officer’s reasoning in relation to added matter and plausibility is extremely short, even perfunctory. The operative paragraphs are [81] and [82]:

In addition to criticising the absence of reasons, Rockwool contended that the Hearing Officer relied on reports of an IPO examiner which Rockwool had had no opportunity to address.

Both points would have been well-made had the issues of added matter and plausibility properly been before the Hearing Officer. But, for the reasons I have given, they were not. Given that the Hearing Officer dealt clearly and fully with the points that were properly before him, in stark contrast to these paragraphs, I consider that all the Hearing Officer was doing in these paragraphs was satisfying himself as to sufficiency and plausibility. He was not dealing with points Rockwool were advancing as a litigant: he was merely doing what Rockwool had invited him to do in paragraph 47 of the Supplemental Grounds, which I have set out in paragraph 43 above: that is, to satisfy himself that the amendments were not obviously improper.