Aqualine As v Huon Aquaculture Group Limited - [2019] APO 51

IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Aqualine AS v Huon Aquaculture Group Limited [2019] APO 51

Patent Application: 2014201866

Title:A Fish Stock Protection System

Patent Applicant:                   Huon Aquaculture Group Limited
Opponent:  Aqualine AS
Delegate:  M. G. Kraefft
Decision Date:  21 November 2019
Hearing Date:  18 September 2019, in Melbourne

Catchwords: PATENTS – section 59 – opposition to grant of patent – predator net assembly above and below the waterline and about fish stock containment net – whether claims are novel – prior use considered – whether there is inventive step – certain claims found to lack inventive step – opportunity to amend specification allowed.

Representation: Patent attorney for the applicant: Mr Adrian Crooks, Phillips Ormonde Fitzpatrick
Patent attorney for the opponent: Collison & Co.

IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Patent Application: 2014201866

Title:A Fish Stock Protection System

Patent Applicant: Huon Aquaculture Group Limited
Date of Decision: 21 November 2019
DECISION
Claims 1-5 and 8-18 do not have an inventive step.
The applicant is allowed two (2) months from the date of this decision to propose suitable amendments under section 104 to overcome these findings.
Costs in accordance with Schedule 8 awarded against the applicant, Huon Aquaculture Group Limited.
REASONS FOR DECISION
BACKGROUND

Huon Aquaculture Group Limited (“the applicant”) filed patent application 2014201866 on 1 April 2014. The application is based on an Australian provisional application, number 2013903066, filed on 14 August 2013 (“the priority date”). Application 2014201866 was advertised as accepted on 18 January 2018.
Aqualine AS (“the opponent”) filed a notice of opposition on 16 April 2018. A statement of grounds and particulars followed on 13 July 2018. Subsequently, the opponent filed a request to amend the statement of grounds and particulars on 15 April 2019. That request was allowed on 2 May 2019.
The parties completed the evidentiary stages on 17 March 2019. The applicant subsequently indicated that it considered that parts of the opponent’s evidence in reply did not properly constitute evidence in reply and should be excluded from consideration in the opposition. After taking comments from both sides, a delegate of the Commissioner of Patents considered the evidence was not specifically or generally responsive to the evidence in answer, and furthermore did not meet the requirements of regulation 5.23 under which the Commissioner may consult a document.
For the hearing, the opponent relied on written submissions. The applicant was represented in person.
SPECIFICATION
The specification describes the invention as relating generally to the farming of fish. While having particular application to the farming of fish species such as salmon in open water, the specification also mentions the wider application of farming other fish and sea life species.
As background, the specification describes existing stock containment systems, or pens, designed to contain fish stock being farmed in open water until the fish are ready to be harvested. Such systems generally include a buoyant structure that supports a stock containment net.
The specification then describes the ineffectiveness of current designs in denying access to sea predators such as seals. One strategy to deter seals is to provide an additional layer of netting above the water line about the top of the stock containment net. This has been largely ineffective though as seals either scale over or under the additional netting layer, or simply break the netting, to access the fish.
Another problem with existing fish stock containment systems is that of birds feeding on the fish feed or targeting the fish themselves. The presence of birds can also put the fish off feeding.
The specification mentions the desirability to at least partially address one or more of the above shortcomings.
The specification ends with 18 claims. Claim 1 is the only independent claim. This claim is recited below. The full set of claims may be found at Annex A.
1.A fish stock protection system, including:
frame structure including a buoyant inner ring, and a buoyant outer ring, with the outer ring provided in a generally common plane with the inner ring and extending about the inner ring;
a plurality of connectors spaced about the frame structure, with each connector provided for connecting the inner ring to the outer ring
a rail assembly connected to each respective connector, the rail assembly supporting a stock containment net, with the stock containment net suspended in a space surrounded by the inner ring, the stock containment net having an upwardly facing opening; and
a predator net assembly including a respective predator net mount connected to each connector, with the predator net mounts supporting a predator net, and with the predator net, in use, spaced from and suspended about the stock containment net; and wherein, in use, an outer edge region of the predator net is suspended above the water line and the remainder of the predator net is below the water line.
APPLICABLE LAW
The present application is governed by the Patents Act 1990 (“the Act”) as amended by the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 (“the Raising the Bar Act”). Amendments to Sections 7, 40 and 60 of the Act apply to the present case as a consequence of Schedule 1, items 55(1)(d) and 55(4)(a), and Schedule 6, item 133(7)(d) of the Raising the Bar Act. The application was filed after 15 April 2013.
The standard of proof that applies in the present case is the balance of probabilities. Under subsection 60(3A), if I am satisfied, on the balance of probabilities, that a ground of opposition to the grant of a patent exists, I may refuse the application.
STATEMENT OF GROUNDS AND PARTICULARS
The opponent named six grounds of opposition. These grounds were as follows:
(1)lack of novelty;
(2)lack of an inventive step;
(3)prior use or secret use;
(4)lack of utility;
(5)the claims were not clear and succinct and supported by matter disclosed in the specification; and
(6)the applicant was not entitled or only jointly entitled with some other person to the grant of a patent.
The opponent provided particulars against each of the above grounds.
For the hearing, the opponent pressed the grounds of lack of novelty, including prior use, and lack of an inventive step.
EVIDENCE IN SUPPORT
The opponent filed evidence in support from Mr David Heard, Mr Trond Lysklaett and Mr Don Latham.
Mr Heard was an executive director and general manager of an aquaculture net maker company and has been directly involved in all aspects of the development, design and manufacture of specialised netting used in commercial aquaculture since 1987. In his declaration, Mr Heard discussed several exhibits of illustrations and literature related to prior fish stock netting systems for containing fish stock and preventing predator access thereto.
Mr Lysklaett is the chief executive officer of the opponent. His declaration contained discussion of his company’s supply of fish netting systems to the aquaculture industry for over 35 years. Mr Lysklaett’s exhibits related to prior fish stock protection systems provided by the opponent to its clients in more recent times.
Mr Latham is the managing director of a net maker company and has been directly involved in the development and manufacture of specialised netting used in commercial aquaculture since at least 1987. In his declaration, Mr Latham discussed exhibits related to prior fish stock netting systems. Most of Mr Latham’s exhibits coincided with exhibits in Mr Heard’s or Mr Lysklaett’s evidence.
EVIDENCE IN ANSWER
The applicant filed evidence in answer from Dr David Morehead. He is the general manager of marine operations for the applicant. Dr Morehead has over 20 years of experience in aquaculture research, fish farming and project management, in particular the design and construction of fish stock protection systems. In his declaration, Dr Morehead principally described the netting systems in the opponent’s evidence as not showing any predator nets as in the present application, or not showing predator nets extending below the water line.
EVIDENCE IN REPLY
The opponent filed evidence in reply from Mr Heard and Mr Lysklaett.
Mr Heard principally challenged Dr Morehead’s interpretations of what the opponent’s evidence disclosed, with particular reference to some examples. Mr Heard suggested that Dr Morehead would well appreciate that it was not operationally logical to have a predator net above the waterline and not have a predator net below the waterline. With a further diagram, Mr Heard also explained the arrangement of the predator net below the waterline in one of his exhibits.
The Lysklaett declaration and accompanying exhibits were the subject of the above-mentioned evidence-in-reply and regulation 5.23 consideration. This evidence is not part of the present opposition.
PERSON SKILLED IN THE ART
The field of the alleged invention relates to fish farming, particularly in open water. Accordingly, I would expect the relevant persons skilled in the present art to be well-versed in open-sea fish farming practices and with the problems of predation on fish stock.
In submissions, both parties indicated that greater weight should be given to the evidence of their respective declarants. While the above declarants may be said to have particular areas of expertise, for example the opponent’s declarants with net systems, I see insufficient reason in this case to discount the evidence of any particular declarant(s). The evidence from the declarants of both sides indicates that all of them are conversant with fish stock management and protection systems generally. I regard all of them as relevant persons skilled in the art in the present case.
NOVELTY
Under subsection 7(1), an invention is taken to be novel unless it is not novel in the light of the prior art base. Information in a document forms part of the prior art base for the purposes of novelty if it was published before the priority date of a claim, or the information was contained in a specification published after the priority date of the claim under consideration and, if that information is, or were to be, the subject of a claim of the specification, that claim has, or would have, a priority date earlier than that of the claim under consideration (referred to as “whole of contents” novelty).
It is well established that the general test for lack of novelty is the reverse infringement test. The classic formulation of this test is that given by Aickin J in Meyers Taylor Pty Ltd v Vicarr Industries Ltd, [1977] HCA 19; 137 CLR 228 at 235 [20]:
“The basic test for anticipation or want of novelty is the same as that for infringement and generally one can properly ask oneself whether the alleged anticipation would, if the patent were valid, constitute an infringement”.
This test is satisfied if the alleged anticipation discloses all the essential features of the invention as claimed (see Nicaro Holdings Pty Ltd v Martin Engineering Co, [1990] FCA 40; (1990) 91 ALR 513 at 517). In order to meet this requirement, the prior art must "contain clear and unmistakeable directions to do what the patentee claims to have invented" (The General Tire & Rubber Company v The Firestone Tyre and Rubber Company Limited, [1972] RPC 457 at 486). In a similar vein, what a prior art document teaches is to be distinguished from what might be “included” or “encompassed”. “A prior broad disclosure thus may not be sufficient ‘in the absence of the skilled addressee understanding or perceiving’ the later claimed invention therein” (Sanofi-Aventis Australia Pty Ltd v Apotex Pty Ltd (No. 3), [2011] FCA 846 at [180]).
Subsection 7(1) also refers to prior art information made publicly available in a single document or through doing a single act for novelty considerations. In respect to doing an act, two types of actions often come to mind in this area. They are prior use, as the opponent has indicated, or prior oral disclosure.
Prior use requires a relatively high standard of proof. The UK Appeal Tribunal discussed the standard of proof required to establish prior use in Seiller's Application [1970] RPC 103. At page 106 Graham J. stated:
"In my judgement it is necessary that proof of prior user in opposition cases should be very clear. Normally in the absence of cross-examination, this will involve corroboration of a mere statement as to recollection in a declaration, particularly where the time interval involved is considerable. Such corroboration is often best found in documents contemporary with the fact to be proved. Each case, however, must be considered on its own facts, and I say expressly that I am not attempting to lay down any rule as to what is or is not sufficient in any given case."
The UK Court of Appeal approved these comments in Dunlop Holdings Limited's Application [1979] RPC 523 at 548. A similar approach is evident in Windsurfing International Inc v Borsimex Pty Ltd, (1984) AIPC 90-135. Towards the end of section 8.38 Waddell J. stated:
"It is essential that an allegation of prior public use should be strictly proved. Evidence which is uncorroborated is undoubtedly suspect and should be scrutinised with particular care. The Court must be satisfied that the proof is sufficient in the circumstances, having regard to the gravity of the allegation.”
Similarly in Aspirating IP Limited v Vision Systems Limited, [2010] FCA 1061, (2010) 88 IPR 52, at [200], Besanko J stated:
“The correct principle is that a prior public use must be strictly proved and evidence which is not corroborated must be scrutinised with care, particularly where it is evidence of events which occurred many years ago.”
In Damorgold Pty Ltd v JAI Products Pty Ltd, [2015] FCAFC 31, Yates J at [94]-[96] commented on the essential features of the invention (a spring-assisted roller blind mechanism in that case) only being discernible by disassembling the product. Where the evidence pointed to no potential customer having disassembled the product and no complete examination having taken place, then the features of the product were not disclosed to customers. At [96], Yates J stated that the relevant question is not whether the product was made publicly available. In applying the notion of “enabling disclosure”, as explained in Merrell Dow Pharmaceuticals Inc v H N Norton & Co Ltd, (1995) 33 IPR 1, neither the mere public availability of a product, nor its use in public, necessarily means that the features of the product have been made publicly available.
The opponent principally relied on the prior use of fish stock protection systems shown in exhibits TL-3 and TL-5 of Mr Lysklaett’s evidence and exhibit DH-4 of Mr Heard’s evidence.
Exhibit TL-3
In evidence, Mr Lysklaett indicated that exhibit TL-3 comprised photographs from 2007 and 2008 of fish stock protection systems developed and put into service by the opponent for a salmon farming operation in Chile.
The applicant indicated there was no evidence to corroborate the above dates. Moreover, the applicant indicated it was not clearly apparent what was disclosed by the photographs, least of all a disclosure of the combination as presently claimed, and that there was no evidence that the illustrated systems, or any particular aspects thereof, were publicly available.
It is fair to say that the 2007 and 2008 period for the taking of these photos is not independently corroborated. On the other hand, there is a dialog box associated with each photo in the exhibit. Amongst other indicated filing properties for the photos, a file creation date in 2008 is indicated. I am prepared to accept the photos are from the period indicated in Mr Lysklaett’s declaration.
The photographs clearly indicate use in a public waterway. While it may be argued that the illustrated operation is a commercial lease and therefore not directly accessible to the public, it is also the case that the structures and features thereof are comparatively large and viewable from some distance. This may be contrasted for example with the situation in Damorgold where the essential features of the invention related to a relatively small spring-assisted roller blind mechanism and discernible only by disassembling the product. The structures in exhibit TL-3 appear to be readily viewable and discernible, even from afar. I am prepared to accept the photographs indicate those systems in prior use and publicly available before the priority date.
Exhibit TL-3 shows a fish stock protection system in the form of inner and outer buoyant rings. Connector elements spaced around the structure connect the buoyant rings, with a rail assembly connecting the connectors. A fish stock containment net is attached to the rail assembly. The connectors support predator net mounting poles on the outer ring. A predator net above the waterline, in the form of a seal jump net, is apparently suspended from the outer mounting poles and spaced a short distance back from the inner fish stock containment net (Mr Lysklaett’s evidence at [9]). At [19] of his evidence, Dr Morehead suggested the stanchions, or connectors, would not be suitable for use with a predator net due to the mounting rings on the outside which would readily cause wear to a predator net. He suggested the outer mount was intended to support a bird net. On the other hand, the net illustrated there could not be a bird net since it does not completely cover the fish containment area from above. Rather, a different, inner net covers the fish containment area from above, appearing to function as a bird net. In any case, the illustrated outer net, whilst going around the outer buoyant ring and down to water level, appears to bypass the outer mounting rings in some images, thus avoiding any wear issue. I would conclude the illustrated outer netting is a seal jump net. The above disclosure essentially matches claim 1 of the present application except for the claimed extension of the predator net below the water line.
Mr Lysklaett stated in evidence, at [9], that the predator net poles are about 2 metres high. Moreover, he stated that the illustrated predator net extended below the water line to where a predator net below the waterline is located. All of this can only be presumed since the photographs do not clearly illustrate any predator net below the waterline, nor the actual height of the predator net above the waterline. Furthermore, even if a predator net below the waterline were present, the clear inference from Mr Lysklaett’s evidence is that it is separate from the predator net above the waterline, that is, the seal jump net. At [22] of his evidence, Mr Lysklaett stated that some of his company’s fish stock containment systems used a two-piece predator net with the predator net above the waterline being a separate net secured to a predator net below the waterline. On the other hand, claim 1 of the application defines a single predator net above and below the waterline.
I conclude the claims of the application are novel over exhibit TL-3.
Exhibit TL-5
Mr Lysklaett indicated that exhibit TL-5 consisted of photographs from 2011 and 2012 of fish stock protection systems put into service in Chile. The structures and features appear to be substantially the same as those shown in exhibit TL-3. Mr Lysklaett confirmed this at [15] and [16] of his evidence. He further indicated though that the height of the predator net had been increased. At [30] of his evidence, Mr Latham suggested the seal jump net was attached to a predator net below the waterline which is what he would have done before the priority date.
Exhibit TL-5 essentially suffers the same deficiencies, compared to the claims of the present application, as exhibit TL-3. I conclude the claims of the application are novel over exhibit TL-5.
Exhibit DH-4

In evidence, Mr Heard indicated that exhibit DH-4 was an example of a fish farm containment net or pen that he was involved in designing and making in 2010 while working for a Tasmanian netting company. Mr Latham confirmed this was an example of a system he had made, with assistance from Mr Heard, around 2010. The photographs clearly indicate use in a public waterway and the structures appear to be readily viewable and discernible to the public. I am prepared to accept the photographs shown in exhibit DH-4 indicate netting systems in prior use and publicly available before the priority date.
Exhibit DH-4 consists of photographs of an inner and outer buoyant ring structure with connectors, a rail assembly and mounting posts for supporting a fish stock containment net and, apparently, a seal jump net or skirt. The latter is spaced a short distance away from the inner fish stock containment net. A predator net below the waterline is not evident in exhibit DH-4.
At [40] of his evidence, Dr Morehead made a similar observation, as above, that the outer net did not appear suitable to prevent seals accessing the pen. On the other hand, while the outer net does not appear to be particularly high, it clearly is intended to provide a buffer, at and somewhat above water level, between the outer ring and the inner fish stock containment net. As such, I would find the outer net is a seal jump net.
Mr Heard stated in evidence in support, at [23], that the seal jump net or skirt is secured by line to a predator net below the waterline to provide a complete barrier around the main containment net. He further stated that failure to do this would leave an opening that seals would exploit. Mr Latham provided similar support for this at [26] of his evidence. Mr Heard also noted the illustrated seal jump net was relatively low and that the height was subsequently increased to provide a more effective barrier to seals. All of this can only be presumed since the photographs do not clearly illustrate any predator net below the waterline, nor the actual height of the predator net above the waterline. Furthermore, even if a predator net below the waterline were present, Mr Heard’s evidence infers that it is separate from the predator net above the waterline, that is, the seal jump net. On the other hand, claim 1 of the application defines a single predator net above and below the waterline.
In evidence in reply, Mr Heard presented a significantly enhanced diagram and explanation of a rope and weight arrangement below the water line to keep a predator net, below the waterline, away from the main containment net. He stated that this was the arrangement of the net in exhibit DH-4. Again, this can only be presumed. In evidence in answer at [39], Dr Morehead was correct in stating that exhibit DH-4, itself, did not show or even suggest the presence of a predator net below the waterline, let alone an arrangement of the relative complexity subsequently provided in Mr Heard’s evidence in reply.
I conclude the claims of the application are novel over exhibit DH-4.
INVENTIVE STEP
Subsection 7(2) of the Patents Act states that an invention is taken to involve an inventive step unless it would have been obvious to a person skilled in the relevant art in the light of the common general knowledge as it existed before the priority date of the relevant claim, whether that knowledge is considered separately or together with information mentioned in subsection (3).
Subsection 7(3) states the information for the purposes of subsection (2) is any single piece of prior art information, or a combination of any 2 or more pieces of prior art information that the skilled person mentioned in subsection (2) could, before the priority date, be reasonably expected to have combined.
The test for whether an invention is obvious is whether it would have been a matter of routine to proceed to the claimed invention. In Wellcome Foundation Ltd v VR Laboratories (Aust.) Pty Ltd, [1981] HCA 12, 148 CLR 262 at 286 [45], Aickin J stated:
"The test is whether the hypothetical addressee faced with the same problem would have taken as a matter of routine whatever steps might have led from the prior art to the invention, whether they be the steps of the inventor or not."
The High Court in Aktiebolaget Hässle v Alphapharm Pty Ltd, [2002] HCA 59, (2002) 56 IPR 129 at [50] – [53] (“Alphapharm”), appeared to approve of the Wellcome test. In discussing what was meant by a matter of routine, the High Court noted and accepted an affinity with the approach in Olin Mathieson Chemical Corporation v Biorex Laboratories Ltd, (1970) 87 RPC 157, of whether the person skilled in the art would directly be led as a matter of course to try what was claimed in the expectation that it might well produce a useful alternative.
In AstraZeneca AB v Apotex Pty Ltd, [2014] FCAFC 99, the court held at [203] that, in formulating the problem, it is not permissible to incorporate information that is not available to the person skilled in the art either as common general knowledge, or information available under subsection 7(3).
It may be noted that the above cases proceed on a premise that there was a problem to be solved. Moreover, it seems clear from Alphapharm that establishing that something was worthwhile or obvious to try is not sufficient to support a finding of lack of inventive step, noting also at [34] that the phrase “worthwhile to try” is not readily understood to be synonymous with “obvious”. At [58]:
“The tracing of a course of action which was complex and detailed, as well as laborious, with a good deal of trial and error, with dead ends and the retracing of steps is not the taking of routine steps to which the hypothetical formulator was taken as a matter of course.”
The reformulation of the so-called Cripps question in Alphapharm is consequently not of universal application. From the Full Court of the Federal Court decision, Generic Health Pty Ltd v Bayer Pharma Aktiengesellschaft, [2014] FCAFC 73 at [71]:
“We do not think that the plurality in Alphapharm were saying that the reformulated Cripps question was the test to be applied in every case. Rather, it is a formulation of the test which will be of assistance in cases, particularly those of a similar nature to Alphapharm.”
Thus, for example, in Dynamite Games Pty Limited v Aruze Gaming Australia Pty Limited, [2013] FCA 163 at [95]:
“For there to be an inventive step, there must be some difficulty overcome or some barrier crossed.”
Common General Knowledge
With reference to the comments of all of its declarants, the opponent submitted that the common general knowledge before the priority date included the following:
(a)a fish farm containment pen;
(b)a framework of buoyant material, commonly high-density polyethylene (“HDPE”) pipe of circular shape;
(c)including inner and outer buoyant rings with connectors, or stanchions, which have an upright section with a rail element attached;
(d)a main stock containment net suspended from the buoyant rings and rail elements at various positions;
(e)an outer seal jump net or skirt supported by uprights on the stanchions; and
(f)a predator net located below the water line and set a distance apart from the inner containment net.
The opponent also relied on several items of literature in support. In this respect, the words of Lehane J in Aktiebolaget Hässle v Alphapharm Pty Ltd, [1999] FCA 628, appear pertinent. At [39], and citing British Acoustic Films Ltd v Nettlefold Productions, (1936) 53 RPC 221, Lehane J said:
“… it is not sufficient to prove common general knowledge that a particular disclosure is made in an article, or series of articles, in a scientific journal, no matter how wide the circulation of that journal may be, in the absence of any evidence that the disclosure is accepted generally by those who are engaged in the art to which the disclosure relates. A piece of particular knowledge as disclosed in a scientific paper does not become common general knowledge merely because it is widely read, and still less because it is widely circulated. Such a piece of knowledge only becomes general knowledge when it is generally known and accepted without question by the bulk of those who are engaged in the particular art; in other words, when it becomes part of their common stock of knowledge relating to the art.”
In the present case, I am satisfied that the evidence of the declarants establishes that at least the above items (a) to (d) would have been regarded as commonly known by those working in the present art at the relevant time. Notably these items are also linked to form a combination. That is, the containment pen is a framework of buoyant material, including inner and outer buoyant rings with connectors, or stanchions, with sections with a rail element attached, with a main stock containment net suspended from the buoyant rings and rail elements. The primary area of contention then appears to reside in the nature of and the provision of predator nets above and below the water surface, and their integration with the rest of the containment pen.
All the declarants in this matter acknowledge, at the relevant time, the problem of seal predation on fish stocks. This includes the method where seals jumped onto the buoyant framework and accessed the fish stock from above. I am prepared to accept this problem was common general knowledge at the relevant time.
In this respect, the provision of seal jump nets above the water is well documented in the evidence. They are shown in multiple exhibits by the opponent’s declarants and universally discussed by the declarants. Several documents that accompanied the statement of grounds and particulars also discussed seal jump nets above the water. I am prepared to accept the use of seal jump nets above the water was common general knowledge at the relevant time.
From the above novelty discussion, it would be apparent that a particular point of difference between the invention, as claimed in its broadest form, and the illustrated prior art is in the claiming of the predator net extending below the waterline. The applicant submitted that predator nets below the waterline were not common general knowledge. In this respect, the applicant indicated the use of such predator nets was not universal. For example, at [14] of his evidence in support, Mr Heard noted the problems of seal predation before the priority date and the importance of thus ensuring sufficient strength in the containment net to withstand direct seal attacks. He cited the use of appropriate netting material and net construction techniques as a solution. At [19], Mr Heard stated that, before the priority date, he would have used a predator net as a secondary net surrounding the main containment net when required by the fish farmer. Similarly, Dr Morehead stated, at [35] and [37] of his evidence in answer, that he was aware of fish farm operators using a fish containment net able to withstand a seal attack without the use or requirement of a separate predator net.
It may be accepted that the use of predator nets below the waterline was not universal. On the other hand, their use appeared to have been prevalent. At the same [19] of his evidence in support, Mr Heard also indicated that, while he would have used a predator net surrounding the main containment net when required by the fish farmer to prevent seals charging the containment net, that type of predator net was, nonetheless, in common use before the priority date. Mr Latham, at [33] of his evidence, similarly described the commonality of using a predator net below the waterline in the aquaculture industry before the priority date. At [36] of his evidence, Mr Latham further described the use of a predator net surrounding the main containment net as well known before the priority date as a way of keeping seals from charging the main fish containment net. Several documents that accompanied the statement of grounds and particulars also discussed the use of predator nets below the waterline. For example, in the opponent’s document designated D10[1], at page 2, first column, and citing sources from the early 1990s, it states that the use of a predator net surrounding the stock net, forming a physical barrier between predators and the fish cage, was the most effective method of predator control. In Mr Heard’s exhibit DH-5, which contains extracts from a book on salmon farming[2], at section 3.4.2, the book indicates that the threat of damage from predators should be minimised by using predator nets both above and below water.
[1] F. Hume et al, “Trapping And Relocating Seals From Salmonid Fish Farms in Tasmania, 1990-2000: Was It A Success?”, Papers and Proceedings of the Royal Society of Tasmania, Volume 136, 2002.
[2] S. M. Stead and L. Laird, “Handbook Of Salmon Farming”, Praxis Publishing, UK, 2002.
I conclude the use of predator nets below the waterline to protect fish stock from underwater predator attack was common general knowledge at the relevant time.
Whether There Is An Inventive Step
In submissions, the opponent referred, amongst other things, to the above-discussed exhibits TL-3, TL-5 and DH-4 when discussing common general knowledge, and suggested the disclosures therein were well-known, or even commonly known, at the relevant time. While several individual features therein may have been commonly known, on the available evidence, I am not prepared to find the complete disclosures in each of those photographic exhibits were common general knowledge. I am prepared to regard each of exhibits TL-3, TL-5 and DH-4 as subsection 7(3) information.
Although not specifically illustrated in the above photographic evidence, Mr Latham, at [26], Mr Heard at [23], and Mr Lysklaett at [22], all referred to the use of predator nets below the waterline in relation to their photographic exhibits. The declarants also indicated that those nets were separate from the seal jump nets above the waterline.
Aside from predator nets below the waterline not being evident in the photographic evidence, the applicant also questioned the ability of the structures shown in the photographic exhibits to accommodate such nets. The applicant particularly noted, for example, Dr Morehead’s above-mentioned comments in respect to exhibit TL-3, at [19] of his evidence, regarding the difficulties with the illustrated mounting rings causing wear to a predator net. As also discussed above though, some images in the exhibit appear to show the netting above the waterline bypassing the mounting rings. Moreover, I would expect it would have been well within the domain of the person skilled in the present art, before the priority date, to have incorporated appropriate mountings or other attachments to the structure of exhibit TL-3, and made similar bypass or other modifications to avoid the wear issue, to accommodate a predator net below the waterline, if required. Moreover, I have found above that the use of predator nets below the waterline to protect fish stock from underwater predator attack was common general knowledge at the relevant time.
Accordingly, if not present, I would find the addition of a predator net below the waterline to the structures illustrated in any one of exhibits TL-3, TL-5 and DH-4 was not inventive at the relevant time.
Claim 1
The above discussion of predator nets above the waterline being separate from predator nets below the waterline may be contrasted with the invention as claimed in its broadest form. In the latter case, the predator net is a single net above and below the waterline. The question then is whether there is inventiveness in joining two separate predator nets into a single predator net above and below the waterline.
At the priority date, there appeared to be some advantage in separate predator nets above and below the waterline. For example, Mr Latham, at [19] of his evidence, referred to a rather rudimentary sketch, exhibit DL-2, from August 2002. He indicated that the seal jump net was shown as a separate net to the predator net below the waterline and that this made it easier to attach to the buoyant framework and easier to deal with repairs and maintenance. This may suggest the provision of a single predator net above and below the waterline was not obvious.
On the other hand, Mr Heard at [15] and Mr Latham at [18] of their evidence both mention the resourcefulness and intelligence of seals in seeking areas of weakness in a fish containment net or system to gain access to fish stock. The opponent’s document designated D2[3], at section 5.1, mentions anecdotal evidence from Tasmanian fish farms of several seal predation methods. These include predation being more pronounced at times of peak tidal movement when the grow-out net billows against the predator net, seals seeking the easiest opportunity for access, and seals finding weaknesses during execution of pen activities. One may conclude from the above that it was well known that any gaps or weaknesses in defending fish stock from predation would have been exploited by seals. Thus, the joining of an above-water seal jump net to a predator net below the waterline to form a single predator net above and below the waterline would appear to have been obvious at the relevant time.
[3] R. Schotte and D. Pemberton, “Development Of A Stock Protection System For Flexible Oceanic Pens Containing Finfish”, Final Report, Fisheries Research & Development Corporation Project 99/361, July 2010.
The joining or securing of two predator nets together is discussed in Mr Heard’s evidence in support at [23] in respect to exhibit DH-4. As mentioned earlier, he stated that the illustrated seal jump net or skirt is secured by line to a predator net below the waterline to provide a complete barrier around the main containment net. In respect to exhibit TL-3, Mr Lysklaett, at [22] of his evidence, discussed a similar securing together of separate predator nets above and below the waterline. Additionally, Mr Latham, at [33] of his evidence, discussed securing, before the priority date, of the seal jump net to the predator net below the waterline to ensure there were no openings between the two nets. On the face of it, there was no difficulty overcome and no barrier crossed at the relevant time in providing this solution and combining two nets into a single predator net above and below the waterline.
Given that netting is material made of pieces of fabric woven together to form meshes, it may also be argued that two separate nets joined together to close gaps, and deny predator access, is no different conceptually to a single predator net above and below the waterline. In this respect, the applicant indicated at the hearing that claim 1 also included separate nets joined together within its scope.
I conclude that claim 1 does not have an inventive step over any one of exhibits TL-3, TL-5 and DH-4.
Dependent Claims
Claim 2 adds the feature of a bird net assembly supported by respective connectors above the stock containment net for preventing bird access. Exhibits TL-3 and TL-5 illustrate bird nets above the containment nets, albeit connected otherwise than via the connectors connecting the inner and outer rings. Exhibit DH-4 illustrates bird netting connected to poles mounted on outer arms of each respective connector. I conclude that claim 2 does not have an inventive step.
Claim 3 adds the features of the system floating in water with an outer edge region of the stock containment net suspended above the waterline and the remainder below the waterline. These features are disclosed in each of exhibits TL-3, TL-5 and DH-4.
Claim 4 adds the features of the outer edge region extending about the periphery of the stock containment net and, in use, extending approximately 1 metre above the waterline. These features are disclosed in each of exhibits TL-3, TL-5 and DH-4.

Claim 5 adds the features of the outer edge region of the predator net extending about the periphery thereof and, in use, extending approximately 3 metres above the waterline. At [23] of his evidence in support, Mr Heard noted that the seal jump nets in exhibit DH-4 were relatively low and that the height was subsequently increased to provide a more effective barrier to seals. At [34], Mr Heard further described the increasing height of the predator net as a natural evolution to deter persistent seals that continued to try to find a way through whatever was placed in front of them. At [15] of his evidence, Mr Lysklaett noted that the height of the predator net in exhibit TL-5 had been increased compared to that in exhibit TL-3. Given also the known problem mentioned earlier of seals jumping onto the buoyant framework and accessing the fish stock from above, I would find there is no inventiveness in having extended the outer edge region of a predator net, and to a height of approximately 3 metres, to preclude seal predators getting over the predator net. I conclude that claim 5 does not have an inventive step.
Claim 6 adds the feature of a connected shape retaining and weighted ring about the lower edge region of the predator net to retain that edge region in a generally circular shape. None of the photographs of exhibits TL-3, TL-5 or DH-4 show if or how that region of a predator net retains its shape.
Exhibit TL-3 contains some additional diagrams of sample models from the opponent for fish stock protection systems. These diagrams show, amongst other things, an under-surface ring structure for holding a predator net away from the stock containment net. There is no evidence before me of the public availability of this material. Moreover, there was no indication in the evidence that this was related or was applied to the fish stock protection system shown in the photos. In submissions, the opponent cited two further documents discussing or illustrating sinker ring systems.
These approaches present some difficulty for the opponent. Section 7 of the Act allows a combining of disclosures or knowledge only in limited circumstances. As indicated above, firstly an invention is taken to involve an inventive step unless it would have been obvious to a person skilled in the relevant art in the light of the common general knowledge as it existed before the priority date of the relevant claim, whether that knowledge is considered separately or together with information mentioned in subsection (3). Secondly, subsection 7(3) states, amongst other things, that the information for the purposes of subsection (2) is a combination of any 2 or more pieces of prior art information that the skilled person mentioned in subsection (2) could, before the priority date, be reasonably expected to have combined. I have insufficient evidence before me to find that the shape retaining and weighted ring arrangement of claim 6 was common general knowledge at the relevant time, or that relevant persons skilled in the present art could be reasonably expected to have combined the above photographic and documentary disclosures at the relevant time. Moreover, there is insufficient evidence that the person skilled in the art would have been directly led as a matter of course to the ring arrangement of claim 6 as distinct from other options for shape retention. For example, Mr Heard in evidence in reply presented an alternative, downwardly extending rope and weight arrangement, connected to a predator net below the waterline to maintain the shape of the latter and keep it away from the stock containment net.
On the evidence before me, I conclude that claim 6 has an inventive step.
Claim 7 is appended only to claim 6 and thus also has an inventive step.
Claim 8 is appended to any preceding claim and adds the features of an intermediate buoyant ring in a generally common plane with and connected with the inner and outer buoyant rings. At [33] of his evidence, Mr Heard acknowledged the connectors in the application featuring three openings to secure three buoyant rings. He stated that he knew of fish farm containment pens having multiple buoyant rings before the priority date, although he did not cite anything specifically with three or more rings. He added though that, in any event, that was nothing more than ordinary evolution of the standard design in use at the time. Moreover, there would appear to have been no difficulty overcome and no barrier crossed at the relevant time for the person skilled in the art in providing a three-ring buoyant structure over a two-ring one. I conclude that claim 8 does not have an inventive step.
Claim 9 is appended to claim 8 and further defines the common plane to be generally horizontal. I conclude that claim 9 does not have an inventive step.
Claim 10 is appended to claim 8 or 9 and further defines each connector including a connector body with ring receiving apertures receiving respective ring wall portions in a generally common plane. Each of exhibits TL-3, TL-5 and DH-4 illustrates these features, albeit absent the intermediate ring features. I conclude that claim 10 does not have an inventive step.
Claim 11 is appended to claim 10 and further defines the rail assembly with respective upstanding rail mounting posts extending from each connector body. A generally ring-shaped rail is connected to each rail mounting post such that, in use, the rail is mounted generally above the inner ring. Each of exhibits TL-3, TL-5 and DH-4 illustrates these features. I conclude that claim 11 does not have an inventive step.
Claim 12 is appended to claim 11 and further defines the upstanding rail mounting post to extend generally perpendicular to the common plane. Each of exhibits TL-3, TL-5 and DH-4 illustrates these features. I conclude that claim 12 does not have an inventive step.
Claim 13 is appended to any preceding claim and adds the features of the predator net mount of each connector being provided on a predator net mount arm connected to, and extending upwardly from, the connector body. Each of exhibits TL-3, TL-5 and DH-4 illustrates these features. I conclude that claim 13 does not have an inventive step.
Claim 14 is appended to claim 13 and specifies the range of inclination of the predator net mount arm to vertical in use. Claim 15 is appended to claim 14 and specifies an approximate angle of inclination of the mount arm to vertical. The claimed inclinations are close to vertical. The predator net mount arms in exhibit DH-4 are substantially vertical. In exhibits TL-3 and TL-5, the predator net mount arms appear to have slightly varying inclinations relative to one another, but are substantially vertical or close to that. While the angles in the exhibits cannot be precisely determined, they are close to that of the present claims. I conclude that claims 14 and 15 do not have an inventive step.
Claim 16 is appended, directly or indirectly, to claim 2 and adds the features of each connector including a bird net mount provided on a respective bird net mount arm connected to and extending upwardly from the connector body. Exhibit DH-4 illustrates these features. I conclude that claim 16 does not have an inventive step.
Claim 17 is appended to any preceding claim and adds the feature of each connector being manufactured at least substantially from HDPE. Mr Heard, at [11] of his evidence, described HDPE as the most common buoyant material used before the priority date. At [28] of his evidence, Mr Latham indicated that the making of buoyant rings and the handrail out of HDPE was common. While there appears to be no direct evidence before me regarding the materials for connectors before the priority date, HDPE had been a commonly known and used strong plastics construction material for a considerable period of time. I conclude that claim 17 does not have an inventive step.
Claim 18 is appended to any preceding claim and, similarly to claim 10, further defines each connector including a connector body with inner and outer ring receiving apertures receiving respective inner and outer ring wall portions in a generally common plane. Each of exhibits TL-3, TL-5 and DH-4 illustrates these features. I conclude that claim 18 does not have an inventive step.
CONCLUSION
I have found that claims 1-5 and 8-18 do not have an inventive step.
I allow the applicant two (2) months from the date of this decision to propose suitable amendments under section 104 to overcome these findings.
COSTS
Both parties sought their costs in these proceedings. I see insufficient reason to depart from the normal approach that costs should follow the event. I award costs in accordance with Schedule 8 against the applicant, Huon Aquaculture Group Limited.
M. G. Kraefft
Delegate of the Commissioner of Patents
Annex A
1.A fish stock protection system, including:
frame structure including a buoyant inner ring, and a buoyant outer ring, with the outer ring provided in a generally common plane with the inner ring and extending about the inner ring;
a plurality of connectors spaced about the frame structure, with each connector provided for connecting the inner ring to the outer ring
a rail assembly connected to each respective connector, the rail assembly supporting a stock containment net, with the stock containment net suspended in a space surrounded by the inner ring, the stock containment net having an upwardly facing opening; and
a predator net assembly including a respective predator net mount connected to each connector, with the predator net mounts supporting a predator net, and with the predator net, in use, spaced from and suspended about the stock containment net; and wherein, in use, an outer edge region of the predator net is suspended above the water line and the remainder of the predator net is below the water line.
2.A fish stock protection system according to claim 1, including a bird net assembly, with the bird net assembly supported by each respective connector above the stock containment net for preventing bird access to the stock containment net through the upwardly facing opening of the stock containment net.
3.A fish stock protection system according to claim 1 or 2, wherein, in use, the fish stock protection system floats in water, with an outer edge region of the stock containment net suspended above the water line and the remainder of the stock containment net below the water line.
4.A fish stock protection system according to claim 3, wherein the outer edge region of the stock containment net extends about the periphery of the stock containment net and, in use, extends approximately 1m above the water line.
5.A fish stock protection system according to any one of the preceding claims, wherein the outer edge region of the predator net extends about the periphery of the predator net and, in use, extends approximately 3m above the water line.
6.A fish stock protection system according to any one of the preceding claims, wherein a lower edge region of the predator net is surrounded by and connected to a shape retaining and weighted ring extending about the lower edge region of the predator net to retain the lower edge region of the predator net in a generally circular shape.
7.A fish stock protection system according to claim 6, wherein a lower edge region of the stock containment net is connected to one of the lower edge region of the predator net and the shape retaining ring to retain the lower edge region of the stock containment net in a generally circular shape.
8.A fish stock protection system according to any one of the preceding claims, including an intermediate buoyant ring, with the intermediate ring provided in the generally common plane with the inner and outer rings, and with each connector connecting the intermediate ring to the inner and outer rings.
9.A fish stock protection system according to claim 8, wherein, in use, the generally common plane is a generally horizontal plane.
10.A fish protection system according to claim 8 or 9, wherein each connector includes a connector body, the connector body including
an inner ring receiving aperture for receiving about a respective inner ring wall portion;
an intermediate ring receiving aperture for receiving about a respective intermediate ring wall portion; and
an outer ring receiving aperture for receiving about a respective outer ring wall portion;
wherein the inner, intermediate and outer ring receiving apertures are provided in a generally common plane.
11.A fish protection system according to claim 10, the rail assembly including a respective upstanding rail mounting post extending from each connector body, with a generally ring-shaped rail connected to each of the rail mounting posts, such that, in use, the rail is mounted generally above the inner ring.
12.A fish protection system according to claim 11, the upstanding rail mounting post of each connector extending generally perpendicularly to the common plane.
13.A fish protection system according to any one of the preceding claims, with the predator net mount of each connector provided on a predator net mount arm connected to and extending upwardly from the connector body.
14.A fish protection system according to claim 13, wherein the predator net mount arm of each connector extends upwardly from the connector body at an angle of between approximately 4^o and approximately 15^o to vertical, when the connector body is in its in-use orientation.
15.A fish protection system according to claim 14, wherein the predator net mount arm of each connector extends upwardly from the connector body at an angle of approximately 8^o to vertical, when the connector body is in its in-use orientation.
16.A fish protection system according to claim 2, or any one of claims 3 to 15 when directly or indirectly dependent from claim 2, with each connector including a bird net mount provided on a respective bird net mount arm connected to and extending upwardly from the connector body.
17.A fish protection system according to any one of the preceding claims, wherein each of the connectors is manufactured at least substantially from high density polyethylene (HDPE).
18.A fish protection system according to any one of the preceding claims, wherein each connector includes a connector body, the connector body including
an inner ring receiving aperture for receiving about a respective inner ring wall portion; and
an outer ring receiving aperture for receiving about a respective outer ring wall portion, and with the inner and outer ring receiving apertures provided in a generally common plane.