Ayonz Pty Limited v Ampfibian Holdings Pty Ltd - [2024] APO 14

IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Ayonz Pty Limited v Ampfibian Holdings Pty Ltd [2024] APO 14
Patent Application:             2021103187
Title:A Power Safety Device Configured For Outdoor Use
Patent Applicant:                Ampfibian Holdings Pty Ltd
Opponent:Ayonz Pty Limited
Delegate:Dr N. R. Madsen – Deputy Commissioner of Patents
Decision Date:  3 April 2024
Hearing Date:  Written submissions completed on 17 January 2024
Catchwords:  PATENTS - opposition under section 104 – power safety device for outdoor use – opposition to allowability under subsection 102(1) and 102(2) considered – whether as a result of the amendments, the specification would claim or disclose matter that extends beyond that disclosed in the specification as filed – whether as a result of the amendments, the claims would not be supported – whether as a result of the amendments, the claims would not be clear – obvious errors – constructions of features – amendment allowable – issues do not arise as a result of the amendment – costs awarded against opponent
Representation:                   Patent attorney for the applicant: Forward Intellectual Property Pty Ltd
Patent attorney for the opponent: FB Rice Pty Ltd

IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Patent Application:             2021103187
Title:A Power Safety Device Configured For Outdoor Use
Patent Applicant:                Ampfibian Holdings Pty Ltd
Date of Decision:                3 April 2024
DECISION

As a result of the amendment requested on 7 July 2023, the specification does not claim or disclose matter that extends beyond the specification as filed, nor does it include claims that are not supported or unclear. The amendment is allowable in accordance with section 102.
The opposition is unsuccessful, and I allow the amendment request of 7 July 2023.
I award costs against the opponent in accordance with Schedule 8 of the Patents Regulations1991.
REASONS FOR DECISION
BACKGROUND

AU 2021103187 is an Australian innovation patent (the patent) granted 07 July 2021 and certified on 11 October 2022 to Ampfibian Holdings Pty Ltd (the patentee). The patent claims an earliest priority date of 09 June 2020 via a priority claim to provisional application AU 2020901885.
Subsequent to certification, Ayonz Pty Limited (the opponent) requested re-examination on 27 February 2023. An adverse re-examination report was issued by IP Australia on 10 May 2023 and the applicant submitted amendments under section 104 on 7 July 2023 to overcome the objections raised by that report. On 21 August 2023, IP Australia issued a re-examination report stating that once the amendments were allowed, they would overcome the objections raised. It is to the allowance of these amendments that the opponent raised their opposition on 22 September 2023.
A Statements of Grounds and Particulars (SGP) was filed by the opponent on 20 October 2023 stating the amendments were not allowable as they contravened s102(1) by adding matter that extended beyond that disclosed in the complete specification as filed, and s102(2)(b) as the claims lacked support and clarity as a result of the amendment.
The matter was set for hearing by way of written submissions. The opponent filed their written submissions in support on 12 December 2023. The patentee filed their written submissions in answer on 02 January 2024. The opponent filed their written submissions in reply on 17 January 2024.
THE RELEVANT LAW
The application for the patent was filed in 2021, and the amendments of the Patents Act (1990) (the Act) brought about by the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 therefore apply to the present patent.
The requirements for the allowability of amendments are governed by subsections 102(1) and (2) which state that:
(1)An amendment of a complete specification is not allowable if, as a result of the amendment, the specification would claim or disclose matter that extends beyond that disclosed in the following documents taken together:
(a)   the complete specification as filed;
(b)   other prescribed documents (if any).
(2)An amendment of a complete specification is not allowable after the relevant time if, as a result of the amendment;
(a)   a claim of the specification would not in substance fall within the scope of the claims of the specification before amendment; or
(b)   the specification would not comply with subsection 40(2), (3) or (3A).
Notably the legislation requires that the failure to meet the requirements of subsections 102(1) and (2) must be as a result of the amendment, and the relevant time referred to is the time of certification.
s102(1)(a) - Claim or disclose matter that extends beyond that disclosed at filing.
Subsection 102(1) was considered by Beach J in Commonwealth Scientific and Industrial Research Organisation v BASF Plant Science GmbH[1], where he noted the following:
“First, as has been pointed out, the test is a strict one.
Second, subject matter will be impermissibly added unless the matter is clearly and unambiguously disclosed in the application as filed.
Third, the required disclosure may be express or implied, but on any view must be clearly and unambiguously so. In this regard, a patent applicant is not permitted to add by amendment matter simply because it would have been obvious to the skilled person.
Fourth, context is important. A patent applicant cannot extract features disclosed in one context and introduce them into a specification stripped of that context. So, the concept of intermediate generalisation as discussed in the UK authorities applies to s 102(1) in its construction and application”.
[1] [2020] FCA 328 at [215]-[218]
Thus, the correct approach when considering whether an amendment would result in the specification claiming or disclosing new matter is to ask whether the person skilled in the art would, on looking at the specification as proposed to be amended, learn anything about the invention which they could not learn or directly derive from the complete specification as filed.
s102(2)(b) and s40(3) - The claim(s) must be clear and supported by matter disclosed in the specification.
The requirement that a claim be clear under s40(3) is discussed by Beach J in BlueScope Steel Limited v Dongkuk Steel Mill Co., Ltd[2]:
“A valid claim is required to define with sufficient certainty the scope of the monopoly being claimed. Given that a patent is a public instrument, the claim must be defined in such a way that it is not reasonably capable of being misunderstood so that others know the “exact boundaries of the area within which they will be trespassers”: Electric & Musical Industries Ld v Lissen Ld (1939) 56 RPC 23 at 39 per Lord Russell of Killowen. A claim will lack clarity if a person skilled in the relevant art cannot ascertain whether what he proposes to do falls within the claim’s ambit.”
[2] (No 2) [2019] FCA 2117 at [705]
The requirement of support was discussed by Burley J in Merck Sharp & Dohme Corporation v Wyeth LLC[3]:
“In CSR Building Products Ltd v United States Gypsum Company [2015] APO 72, Dr S D Barker adopted the summary provided by Aldous J in Schering Biotech at 252 – 253, which has been often followed in the United Kingdom (emphasis added):
...to decide whether the claims are supported by the description it is necessary to ascertain what is the invention which is specified in the claims and then compare that with the invention which has been described in the specification. Thereafter the court’s task is to decide whether the invention in the claims is supported by the description. I do not believe that the mere mention in the specification of features appearing in the claim will necessarily be a sufficient support. The word ‘support’ means more than that and requires the description to be the base which can fairly entitle the patentee to a monopoly of the width claimed.
That approach encapsulates broadly the claim support obligation under s 40(3). To it may be added the requirement that the technical contribution to the art must be ascertained. Where it is a product, it is that which must be supported in the sense that the technical contribution to the art disclosed by the specification must justify the breath of the monopoly claimed”.
[3] (No 3) [2020] FCA 1477 at [546]-[547]
It is therefore the case that under s40(3), the matter in a claim of a specification must be consistent with the description and supported by an enabling disclosure in the description and any drawings, graphics, photographs and sequence listing (i.e., the body of the specification).
Construction of Claims and Specification
As is usually the case, critical to the present matter is proper construction of the specification and claims. Here, I note the comments of Middleton J in Eli Lilly and Company Limited v Apotex Pty Ltd[4]:
“It is well settled that the Court should, from the outset, approach the task of patent construction with a generous measure of common sense. The Court must place itself in the position of a person skilled in the relevant art, being the subject matter of the patent. From this perspective, the patent is to be read as a whole, in the context of the specification and in light of the prevailing common general knowledge and state of the relevant art at the priority date.”
[4] [2013] FCA 214; 100 IPR 451 at [139]
Furthermore, the correct approach to the construction of claims was discussed by Bennett J in H Lundbeck A/S v Alphapharm Pty Ltd[5]:
“…the words in a claim should be read through the eyes of the skilled addressee in the context in which they appear ... while the claims define the monopoly claimed in the words of the patentee's choosing, the specification should be read as a whole ... it is not permissible to read into a claim an additional integer or limitation to vary or qualify the claim by reference to the body of the specification ... terms in the claim which are unclear may be defined or clarified by reference to the body of the specification.”
[5] [2009] FCAFC 70 at [118] – [120]
The person skilled in the art
The construction of the specification and claimed invention is performed by the person skilled in the art as in Root Quality Pty Ltd v Root Control Technologies Pty Ltd[6]:
“The skilled addressee, or the judge adopting the mantle of the skilled addressee, is relevant for a variety of purposes in patent law. He is the person to whom the patent is addressed and who must construe it.”
[6] (2000) FCA 980 at [70]
The nature of the person skilled in the art is considered in KD Kanopy Australasia Pty Ltd v Insta Image Pty Ltd[7]:
“The hypothetical skilled person is a person acquainted with the surrounding circumstances of the state of the art and manufacture at the relevant time: Kimberly Clark Australia Pty Ltd v Arico Trading International Pty Ltd (2001) 207 CLR 1; [2001] HCA 8 at [24]. They are likely to have a ‘practical interest in the subject matter of the invention’: Catnic Components Ltd v Hill & Smith Ltd [1982] RPC 183 at 242 and may often work in the art with which the invention is connected.”
[7] (2000) FCA 481 at [16]
Valensi & Another v British Radio Corporation[8] provides further consideration of the person skilled in the art:
“We think that the effect of these cases as a whole is to show that the hypothetical addressee is not a person of exceptional skill and knowledge, that he is not expected to exercise any invention nor any prolonged research inquiry or experiment. He must, however, be prepared to display a reasonable degree of skill and common knowledge of the art in working trials and to correct obvious errors in the specification if a means of correcting them can readily be found.”
[8] (1973) RPC 337 at page 377
THE INVENTION
As noted above, the present matter deals with the specification as proposed to be amended on 7 July 2023.
The patent is directed towards a power safety device configured for use in outdoor and other hazardous settings (for example kitchens, washdown areas, areas with dust/paint risks, and so on) wherein some embodiments have been configured specifically for application in camping, caravan environments, work-sites and markets. The specification states[9] that the known form of outdoor power adaptor comprises a sealed container which is configured to provide an input lead and an output lead, with electronic componentry therebetween which couples and transforms an input power supply to an output power supply. It adds[10] that the present invention is directed towards a key goal when designing such a power adaptor being reduction of complexity. Reducing complexity has a range of key advantages, relating both to reducing risks associated with failed weatherproofing, and also reducing manufacture overheads.
[9] Specification as certified at [0003]
[10] Specification as certified at [0004]
Preferred embodiments are discussed in the specification. FIGs 1, 3 and 4 provide a clear picture of the relevant embodiments.
The specification at [0038] and [0040] describes FIG.1 and FIG. 3 as a device according to an embodiment and a further embodiment, shown as a perspective exploded view, and FIG. 4 at [0041] as a device according to a further embodiment shown as a perspective view. Further at [0043] it is noted that similar numbering has been used across the diagram to denote corresponding features.
The specification describes FIG. 1 as follows[11]:
Device 100 includes a sealed container 101 having an upper portion 102 and a lower portion 103. It will be appreciated that portions 102 and 103 may be formed via a plastic injection moulding process, or vis other processes.
In the illustrated embodiment, portion 102 and 103 are coupled via an external hinge 104, which has interlocking hinge components defined via each of portion 102 and 103. Hinge 104 allows for container 101 to be positioned in an open configuration (illustrated) and a closed configuration. In the closed configuration the portions are snap-lockingly engaged to one another, for example via formations 105 and 106 which are respectively integrally formed with portions 102 and 103.
[11] Specification as certified at [0045]-[0046]
The specification further details the power safety components of the invention identified in the figures[12]:
“A component capture array 115 is integrally formed from portion 103. This is configured to adjacently capture and locate: (i) a power safety component 116 and (ii) electrical socket 112. In the illustrated embodiment this is achieved via formations which define vertical sleeves into which component 116 and 112 are vertically inserted thereby to restrict lateral movement. In the illustrated embodiment component 116 is a DIN rail device, and array 115 is configured to receive the DIN rail device vertically.
A component capture securing member 118 is mounted with respect to the component capture array 115, thereby to securely hold the power safety component 116 and the electrical socket 112 (this restricts vertical movement, and further inhibits horizontal movement). In the illustrated embodiment member 118 includes vertical sleeves corresponding to those in array 115, and is held in place via screws 119 which thread into formations defined on array 115 (or elsewhere on portion 103). These screws provide a strong clamping force between member 118 and portion 103, which restrains socket 112 in place even in spite of lateral forces along the axis of the lead (for example ‘tugging’ forces) which may be applied in practice via the outlet lead. In the example of FIG. 1 a region of an outer face of socket 112 abuts against a region of an inner face of member 118, thereby to improve security from lateral movement.
It will be appreciated that there are benefits from having array 115 and member 118 contained within the sealed contained (sic) in use, for example in terms of reducing risk of corrosion for screws 119.
Member 118 includes an aperture 120 which, in use, allows for manual manipulation of a movable member on component 116. For example, in the illustrated embodiment, component 116 is a DIN rail device including surge protection (for example a RCBO or MCB) and having a switch 121, and aperture 120 allows viewing and manual manipulation of switch 121. Other components may include: an RCD (only), a surge protector (for which access through the allows a user to replace a blown cartridge, whilst the rest of the DIN rail housing stays in place), and/or a power meter (for example with a display).
In the illustrated embodiment, portion 102 is formed of transparent plastic, thereby allowing a user to view a status of device 116 (e.g. switch 121) in use whilst the seal container is in a closed configuration. When the sealed container is in an open configuration, a switch component of the safety component is manually manipulatable.
Although the component capture array 115 is illustrated as being integrally formed from portion 103, in other embodiments it is an insert that is mounted to portion 103. In further embodiments the component capture array is defined by or mounted to portion 102.”
[12] Specification as certified at [0053]-[0058]
The specification describes the sealing of the device[13]:
“In the illustrated embodiment, container 101 is sealed in two sections: a first section along a peripheral edge of portion 103 in a clockwise direction from a point 151 to a point 152 (the long path between those points along the top peripheral edge of portion 103), and a second section between points 151 and 152 in an anticlockwise direction (the short path along the top peripheral edge of portion 103).”
[13] Specification as certified at [0061]
The Claims as Proposed to be Amended.
There are five independent claims in the present innovation patent. While each claim has been amended, the amendments are broadly consistent with the amendments of Claim 1, and so it is to that claim that I will primarily consider. The patentee has stated in their submissions that they consent to certain changes in the claims, however no formal request for amendments have been made and so those consented changes will not be considered. The independent claims are largely similar and for brevity I will only introduce claim 1 at this stage with added features underlined and features removed struck through. I note however that the opponent takes issue with various aspects of the claim set, and I will address each of these in more detail where required.
A power safety device configured for protecting one or more components housed within the device, the device including:
a sealed container having an upper portion and a lower portion defining a single sealable cavity region;
a pair of apertures formed in the sealed container, each being configured for allowing sealed egress of respective power lead from the container;
a component capture array mounted to one of the portions which is configured to adjacently capture and locate: (i) a power safety component and (ii) an electrical socket which is configured to receive an electrical plug, wherein the power safety component and the electrical socket are both located within the single sealable cavity region;
a component capture securing member which is mounted with respect to the component capture array, thereby to securely hold the power safety component and the electrical socket;
wherein:
(i)the electrical socket is located such that the electrical plug is insertable into the socket and contained within the sealed container, with an associated power lead egressing through one of the apertures; and
(ii)(ii) when the sealed container is in an open configuration, an interactive component of the safety component is manually manipulatable
further wherein the power safety component is a DIN rail component, which is received in a vertical configuration such that sidewalls of the DIN rail component are perpendicular to an axis along which the electrical plug is configured to be inserted into the electrical socket, wherein a switch member of the DIN rail component is presented upwardly and outwardly through an aperture formed in the component capture securing member ~~array~~ towards the upper portion of the sealed container, wherein the aperture formed in the component capture securing member ~~array~~ is sized to prevent vertical extraction of the DIN rail component;
further wherein the pair of apertures formed in the sealed container, each being configured for allowing sealed egress of respective power lead from the container, include:
(i)a first aperture configured to receive a power output lead via a sealed arrangement defined in part on the upper portion and in part on the lower portion, wherein the first aperture allows the power output lead to be coupled via its proximal end to the electrical socket;
(ii)a second aperture formed through the lower portion configured to receive a power input lead via a sealed arrangement, wherein the power input lead is coupled via its proximal end to the power safety component, and wherein the power output lead is configured to be coupled via its distal end to a power supply socket;
further wherein:
(i)the electrical socket is located such that an electrical plug is insertable into the socket and contained within the sealed container, with an associated power lead egressing through one of the apertures; and
(ii)when the sealed container is in an open configuration, a switch component of the power safety component is manually manipulatable; and
further wherein the upper portion and the lower portion each provide a respective sealing block receiving compartment, each compartment including a respective include aperture defining formation such that the two compartments collectively define the first aperture, wherein each sealing block receiving compartment has mounted therein respective sealing block formed of resilient materials;
wherein the power safety component is located in between the electrical socket and one apertures formed in the sealed container configured for allowing sealed egress of respective power lead from the container.
SUMMARY OF SUBMISSIONS

The opponent makes key arguments along the following lines:
·Firstly, the opponent submits there is no literal basis for the expression “single sealable cavity region” in the specification as filed, as published, or as certified. Nor they submit is there any reference whatsoever in the description of any advantage that having a “single sealable cavity region” might provide. They submit that this feature constitutes added subject matter.
·Secondly and related to the first point the opponent submits that the terms “single”, “cavity”, “sealable”, and “region” are either unclear or do not appear in the context of a single sealable cavity region in the specification as filed.
·Thirdly the opponent submits the feature of a single sealable cavity region has no explanation in the description and as a result is not supported by the specification.
·Fourthly the opponent submits that claim 5 recites a power safety component, however the description only describes a DIN rail component and provides for no alternatives. It is submitted that the DIN rail component is an essential feature and as such claim 5 does not satisfy subsection 40(3) of the Act.
·Fifthly the opponent submits that claims 1, 3 and 5 are not clear. Specifically that the features of “each compartment including a respective include aperture...” and “...wherein the power safety component is located in between the electrical socket and one apertures” lack clarity.
The patentee has presented the following overarching submissions in answer:
·     Firstly, the patentee submits that the feature of a “single sealable cavity region” is disclosed inherently. The Figures of the specification and associated description particularly in relation to a single “container” and the function of the invention described are asserted to both disclose and support the feature.
·     The patentee also submits that the terms used are standard and unambiguous English language – the meaning of “cavity” or “cavity region” should attract no controversy, and “sealable” simply means “able to be sealed”.
·     The patentee submits that the description does not disclose examples of devices having multiple sealable containers (having respective cavity regions) and was introduced to improve the clarity in the claims and limit claim scope to what is specifically disclosed in the specification.
·     The patentee submits that paragraph [0053] of the specification discloses “a power safety component 116” and notes that “In the illustrated embodiment component 116 is a DIN rail device”. It is submitted the feature of a “power safety component” is supported, and the possibility of that being a DIN rail device is clearly expressed as a non-limiting option.
·     The patentee submits that obvious typographical errors in the claim that are minor issues do not give rise to substantive clarity issues which would meaningfully impact ability to interpret the claims.
I will first construe the relevant terms myself before considering the case as to non-allowability of the amendment.
CONSIDERATION – CONSTRUCTION AND CLARITY
Single sealable cavity region (Claims 1-5)
The task of construing the claims is performed from the perspective of the person skilled in the art. The specification makes clear that the invention is broadly directed to the field of power safety devices in outdoor and other hazardous settings for use in applications of camping, caravan environments, work-sites and markets with the problem to be solved framed in the context of reducing the complexity of power adapters in this field. A hypothetical skilled addressee would appear to include such people as an electrician and industrial designer.
It appears necessary to accept that a hypothetical addressee would have an awareness of the requirements of power devices in an outdoor environment including considerations of weather protection and electrical safety and function and that they would be familiar both with the design and construction of such devices. There is no evidence to the contrary and as such, it is from this perspective that I will construe the claims.
Both the opponent and patentee make submissions with regard to the feature “single sealable cavity region”. For each of claims 1-5 the feature is introduced in the context of a container:
·Claims 1, 2 and 5: a sealed container having an upper portion and a lower portion defining a single sealable cavity region.
·Claim 3: a two-part container having a base and lid which are sealed together along a main seal strip when the container is in a closed configuration, defining a single sealable cavity region.
·Claim 4: a sealed two-part container defining a single sealable cavity region.
The opponent argues that the description does not use the exact phrase “single sealable cavity region” and that no dictionary definition is provided. This is true and it is thus the case that the person skilled in the art is left to interpret this feature and its scope equipped with their own skill and common knowledge, starting from its plain meaning in the claim.
In each of the claims there is a container of two or at least two parts “defining a single sealable cavity region”. Given the contentions regarding these terms it is prudent to look to their plain English meaning. I refer to the Macquarie Dictionary which relevantly defines “defining”, “single”, “sealable”, “cavity” and “region” as follows[14]:
[14] The Macquarie Dictionary,
define
verb (t) (defined, defining)
1. to state or set forth the meaning of (a word, phrase, etc.).
2. to explain the nature or essential qualities of; describe.
3. to determine or fix the boundaries or extent of.
single
adjective 1. one only; separate; individual.
seal
–verb (t) 12. to affix a seal to an authorisation, confirmation, etc.
13. to approve, authorise, or confirm: to seal an agreement.
14. to impress a seal upon as an evidence of legal or standard exactness, measure, quality, etc.
15. to fasten with a seal.
16. to close by any form of fastening that must be broken before access can be had.
17. to fasten or close as if by a seal.
cavity
noun (plural cavities)
1. any hollow place; a hollow: a cavity in the earth.
2. Anatomy a hollow space within the body, an organ, a bone, etc.
3. Dentistry the loss of tooth structure, most commonly produced by caries; a cavity may be artificially made to support dental restorations.
region
noun 1. any more or less extensive, continuous part of a surface or space.
“Defining” in the context of the claim is not purposively used in a literary sense but in the context of physical features and as such, the person skilled in the art would understand the appropriate meaning to be to determine or fix the boundaries or extent of, and that the portions of the container determine or fix the boundaries of a single sealable cavity region.
A “single sealable cavity region” is, under a plain English reading, descriptive of an individual feature. Single meaning one only; separate; individual. Sealing in the context of the invention would be viewed by the person skilled in the art not to refer to some document, approvals, or authorisations, but rather to the context of such considerations as weather proofing. In the context of the present invention “sealing” means fastening or closing by a seal.
Given the person skilled in the art would not encompass someone skilled in dentistry and the field of invention does not relate to such considerations, it is clear to me that the hypothetical addressee would consider the construction of a cavity referring to that of the loss of tooth structure absurd and would instead consider the contextually relevant construction of a “hollow”. I consider the feature descriptive of the region or in other words, “any more or less extensive, continuous part of a surface or space”.
Reading the phrase in the context of the claims and specification as a whole I consider that the claims define in their scope a singular hollow space that is capable of being closed and sealed wherein that space has the boundaries set out by the at least two portions of a container. This construction is found on the plain English meaning of the terms of the claim considered in light of the nature of the described invention, and is consistent with what I understand would represent the person skilled in the art’s understanding of the field. The construction of this feature does not create any uncertainty in the scope of the claimed monopoly applying only a minimal measure of common sense. I do not see any uncertainty that requires clarification by reference in the body of the specification. I consider this feature of the claimed invention clear.
Each compartment including a respective include aperture (Claims 1 and 5)
The opponent and patentee both recognise that the feature of “each compartment including a respective include aperture” present in both claims 1 and 5 prima facie contains an error in drafting. Neither the patentee nor the opponent have provided submissions beyond stating the claims are clear or not clear, respectively. I note that this feature is not newly appearing as a result of the amendment, and so it cannot offend s102(2)(b). I will still however construe the feature for completeness. I will rely on the general principles established above. The person skilled in the art can “correct obvious errors in the specification if a means of correcting them can readily be found”[15] and similarly “terms in the claim which are unclear may be defined or clarified by reference to the body of the specification.”[16] So the questions in this case are whether an error is obvious or a term unclear? And can correction be readily found?
[15] Valensi & Another v British Radio Corporation (1973) RPC 337 pg 377
[16] H Lundbeck A/S v Alphapharm Pty Ltd [2009] FCAFC 70 at [120]
I do note at this time that it is not appropriate to readily jump to re-writing a claim due to an error in drafting. As stated in GlaxoSmithKline Consumer Healthcare Investments (Ireland) (No 2) Limited v Generic Partners Pty Limited[17]:
“We think these provisions of the Act are a powerful indication that a mistake in a claim cannot be ignored simply because the skilled addressee understands that a mistake has been made which he or she corrects by reading the language of the claim as if those words did not appear in it. The principles of construction must provide some basis which would permit the court to ignore the words of the claim. The mere fact that the skilled addressee would understand that they had been included by mistake is not sufficient.”
[17] [2018] FCAFC 71 at 121
Distinctly from that case in the present matter the relevant principle of construction is that the words of a specification have their ordinary English meaning[18]. Where no ordinary English meaning can be found, the principals of construction provide for the correction to be sought.
[18] Interlego AG v Toltoys Pty Ltd (1973) 130 CLR 461 at page 478
The feature as currently drafted does not conform to the usual use of the English language and both the opponent and patentee observe the addressee would identify this feature as one requiring further consideration to construe. At the very least this issue is not hidden.
Initially it is appropriate to give the phrase context and as such to turn to consider the claim as a whole. The particular features related to the ambiguity are “each compartment” and “respective include aperture”. The feature wherein “the upper portion and the lower portion each provide a respective sealing block receiving compartment” precedes “each compartment”, it is clear that there are compartments in each of the upper and lower portions.
Turning to “respective include aperture”, the feature of an aperture is first seen in each claim as “pair of apertures formed in the sealed container”, and further “wherein the pair of apertures formed in the sealed container, each being configured for allowing sealed egress of respective power lead from the container, include: (i) a first aperture configured to receive a power output lead via a sealed arrangement defined in part on the upper portion and in part on the lower portion… a second aperture formed through the lower portion”. It is clear that there are two apertures defined by the upper portion and lower portion, and the lower portion respectively. These portions also have compartments. In considering the feature in the context of the whole claim I consider the claim conveys that each compartment has a corresponding aperture.
Further guidance can be found in the body of the specification. Turning to, for example, FIG. 3 it can be seen that the specification teaches a first aperture between items 141 and 142 defined by an upper and lower portion with a receiving compartment and a second aperture defined by the lower portion with its own respective compartment. This is consistent with the interpretation of claim as a whole. The person skilled in the art would consider the specification to teach each compartment including a respective aperture.
I consider that the person skilled in the art would recognise the correction to the obvious error in the wording of the claim. The hypothetical addressee is not a legal expert seeking the intentional obfuscation claimed invention, they are a skilled worker in the field seeking the scope of the claimed invention that provides a clear solution to the problem at hand. They would construe the claim with at least a minimal measure of common sense and readily find the construction consistent with the specification to the obvious conclusion that the scope of the claim is to “each compartment including a respective ~~include~~ aperture”. I find this feature clear.
The power safety component is located in between the electrical socket and one apertures (Claims 1, 3 and 5)
Similar to above, both the opponent and the patentee submit the feature of “the power safety component is located in between the electrical socket and one apertures formed in the sealed container configured for allowing sealed egress of respective power lead from the container” of claims 1, 3 and 5 contain an error and provided no further submissions or evidence as to the clarity of this feature. For the same reasons as above, I consider further scrutiny of this feature is necessary as “one apertures” does not conform to typical use of the English language. The person skilled in the art would consider that obviously an error exists.
It is necessary to question whether this feature refers to one singular aperture (i.e. one of the apertures) or a plurality of apertures (i.e. ~~one~~ apertures). As above there are a plurality of apertures referenced in the claim, however they are specified as the first or second aperture. Further, each one of the apertures is specified to have a singular power input or output lead (“a first aperture configured to receive a power output lead via a sealed arrangement defined in part on the upper portion and in part on the lower portion, wherein the first aperture allows the power output lead to be coupled via its proximal end to the electrical socket; a second aperture formed through the lower portion configured to receive a power input lead via a sealed arrangement”). The feature in question is “formed in the sealed container configured for allowing sealed egress of respective power lead from the container.” That this refers to a “respective power lead (singular)” implies to the person skilled in the art that the first interpretation may be correct.
Turning to the body of the specification for clarification I observe that each of the figures (particularly 1, 3 and 4 disclosing vertical configurations of the DIN rail component) direct the reader to place the power safety component in between the electrical socket and a singular aperture. This is consistent with reading of the context of the feature in the claim as above.
In contrast, looking at [0070] of the body of the specification the person skilled in the art finds evidence that the power safety component may be located between multiple apertures in as much as “In further embodiments there is a two-to-one relationship between the DIN device and the output leads.” Firstly, this shows that the power safety component may be located between the socket and output aperture (this is also shown in Fig. 2 which was not discussed in this decision as the orientation of the power safety component as claimed is not vertical, but nevertheless demonstrates such a positioning of the power safety component between the socket and output aperture). Secondly this implies that a DIN device may serve two output leads and therefore two apertures. Such an example may be a single surge protector serving two output apertures of the embodiment of Figure 4. Construing the feature as claimed as being between multiple output apertures, however, would be inconsistent in the case of claim 3 wherein:
the device requires only three seal arrangements thereby to seal the sealed container whilst allowing: (i) an openable container; (ii) egress of a user’s outlet lead which is coupled to a socket provided by the component set inside the container; and (iii) egress of an inlet lead which is coupled to the component set;
In claim 3 it is explicit that the device only has a singular output aperture. The specification makes no disclosure of the power safety component being between the socket and both the input and output apertures, only between the socket and multiple output apertures. The person skilled in the art would consider the only reasonable construction of claim 3 to be the power safety component is located in between the electrical socket and one of the apertures.
The specification must be read as a whole, and where a feature has been drafted as a particular combination of words, it is reasonable that elsewhere that same exact combination refers to the same feature unless context or some other consideration would provide otherwise. The claimed feature in question of claim 3 uses the same words as that used in claims 1 and 5. This construction is consistent with the context in the claimed invention and in the body of the specification. I consider, albeit with some deeper consideration, the claims to be clear.
The power safety component (Claim 4)
The patentee submits that there is an error in the last paragraph of claim 4 and that the claim should read “the ~~power safety~~ DIN rail component”. The person skilled in the art reading claim 4 as written would not, however, consider there to be an obvious error and would construe the monopoly to be directed to “the power safety component” rather than the specific embodiment of a DIN rail component being located in between the electrical socket and the inlet lead. Further the claim as amended provides the antecedent “wherein the DIN rail component is a power safety component” (though this is provided later in the claim where traditionally this is provided before the first mention of “the power safety component” the antecedent is still provided). Stating “wherein the DIN rail component is a power safety component”, it does not necessarily follow that the scope of the feature of a power safety component is precisely the same as that of the DIN rail component. While these may be similar, the specification is a unilateral document in words of the patentee’s own choosing[19]. This feature as written is clear and the person skilled in the art would not seek further clarification. They would construe the words of the claim concerned as “the power safety component”.
[19] GlaxoSmithKline Consumer Healthcare Investments (Ireland) (No 2) Limited v Generic Partners Pty Limited [2018] FCAFC 71 at [108]
I do not consider the amendment to give rise to ambiguity.
CONSIDERATION – DOES MATTER EXTEND BEYOND THAT AT FILING? (Claims 1 -5)
The opponent submits that there is no literal basis for the expression “single sealable cavity region” in the specification as filed, as published, or as certified. Nor they submit is there any reference whatsoever in the description of any advantage that having a “single sealable cavity region” might provide. The opponent submits that the subject matter is not clearly and unambiguously disclosed in the application. It is submitted that the disclosure may imply two regions in total which would both be capable of being separately sealed rather than unambiguously disclosing a single sealable cavity. They submit that this feature constitutes added subject matter.

As above I have construed the feature in question, and it now must be asked as to whether the amended feature discloses matter that extends beyond that disclosed in the complete specification as filed. In other words, I must look to whether the specification as filed contains clear and unambiguous disclosure of a single sealable cavity region. I note here that the figures filed comprise part of the complete specification. I agree with the submissions of the opponent that this feature is not explicitly written in the description. However, it does not necessarily follow that it is not clearly and unambiguously disclosed.
Looking to FIG 1, the opponent submits that “Figure 1 is described as showing a sealed container, it is, in fact an exploded view, and the container is not shown sealed.” Therefore, the opponent claims that the figures do not disclose the feature of a single sealable cavity. This line of reasoning is considered wholly unpersuasive. The person skilled in the art is well aware of technical drawings and the functions and purposes of an exploded view drawing. They are aware that the exploded view is not representative of the completed finished product (however this is seen in FIG. 4) but describes the essential parts of the invention and how they interact.
The opponent submits that the figures only disclose two cavities arranged side by side. The opponent submits that “There is nothing in the specification to indicate that the combination of the upper portion and the lower portion of the container create a single cavity region.” To understand the figures the skilled addressee would be assisted by the corresponding description of Fig. 1[20] (emphasis added):
Device 100 includes a sealed container 101 having an upper portion 102 and a lower portion 103. It will be appreciated that portions 102 and 103 may be formed via a plastic injection moulding process, or vis other processes.
In the illustrated embodiment, portion 102 and 103 are coupled via an external hinge 104, which has interlocking hinge components defined via each of portion 102 and 103. Hinge 104 allows for container 101 to be positioned in an open configuration (illustrated) and a closed configuration. In the closed configuration the portions are snap lockingly engaged to one another, for example via formations 105 and 106 which are respectively integrally formed with portions 102 and 103.
[20] [0045]-[0046]
As the patentee submits, this makes clear that Fig. 1 is in an open configuration and the upper and lower portions seal together to form the closed configuration. This closed configuration would result in a cavity in a region defined by the upper and lower portions. The cavity would be sealable[21] and would form a single cavity region. There is no mention as the opponent submits of separately sealing the upper and lower portion, indeed this is a direct contradiction to the specification as cited above. Not only does the specification clearly disclose a single sealable cavity region, but it also leaves no room for confusion as to the teaching and intended result. Therefore, this feature is clearly and unambiguously disclosed in the complete specification and does not constitute added subject matter.
[21] Specification as certified at [0049]
I find the amendment satisfies s102(1)(a).
CONSIDERATION – SUPPORT
Support – single sealable cavity region (Claims 1-5)
The opponent submits that the feature of a “single sealable cavity region” is not supported under s40(3) of the Act. The opponent and patentee provide submissions similar to that discussed above in relation to whether added subject matter extends beyond the specification as filed. My reasoning is also similar to that above as the clear and unambiguous disclosure of the feature in the specification as filed provides basis for the claimed feature.
Thus, the person skilled in the art is directed in the specification as to the construction of the device, where at [0045] the upper and lower portions are described, and at [0046]-[0047] the means of achieving the closed configuration is discussed. At [0049] the sealing arrangement is described, and in Figures 1-4 the shape of the portions which when placed in the closed configuration as set out in the specification form a single enclosed space.
The amended claim is supported by an enabling disclosure in the description and drawings. These disclosures were present in the specification before the amendment in question. A s40(3) issue of support does not arise as a result of the amendment.
Support – power safety component (Claim 5)
Claim 5, unlike claims 1-4, does not specify the power safety component being a DIN rail component. The opponent submits that the broad feature of a power safety component does not comply with s40(3) of the Act as the only power safety component described and enabled in the specification is a DIN rail component. The patentee submits that the feature is supported and the possibility of the power safety component being a DIN rail component is a non-limiting option. I note that the scope of the claim wherein a power safety component is not a DIN rail component does not appear as a result of the amendment, and so it cannot offend s102(2)(b). I will still however consider the feature for completeness.
The person skilled in the art would have knowledge regarding electrical safety and would be aware of power safety considerations and standard implementations to address those considerations in the art. The person skilled in the art would be aware that a DIN rail component is a specific mounting method (that of a DIN rail) for a power safety device rather than a specific power safety component (for example a fuse). The specification discloses:
A component capture array 115 is integrally formed from portion 103. This is configured to adjacently capture and locate: (i) a power safety component 116 and (ii) electrical socket 112. In the illustrated embodiment this is achieved via formations which define vertical sleeves into which component 116 and 112 are vertically inserted thereby to restrict lateral movement. In the illustrated embodiment component 116 is a DIN rail device, and array 115 is configured to receive the DIN rail device vertically.
A component capture securing member 118 is mounted with respect to the component capture array 115, thereby to securely hold the power safety component 116 and the electrical socket 112 (this restricts vertical movement, and further inhibits horizontal movement). In the illustrated embodiment member 118 includes vertical sleeves corresponding to those in array 115, and is held in place via screws 119 which thread into formations defined on array 115 (or elsewhere on portion 103).[22]
[22] Specification as certified at [0053]-[0054]
This is a disclosure that the power safety component can be held in place by the component capture member 118, i.e. the power safety component (which may as in this embodiment of Fig. 1 be a DIN rail component) can be mounted not on a DIN rail (however this possibility is seen in Fig. 2) but in vertical sleeves configured to receive the device vertically and a capture array. This is a disclosure that standard DIN rail components are compatible with the disclosed device. The configuration described does not rely on the component being designed to be mounted on a DIN rail. A power safety component without the DIN rail can be mounted in precisely the same manner as that disclosed. The opponent has not provided any evidence that alternative power safety components would not be enabled, beyond that a DIN rail component is the only explicit embodiment. As the patentee has submitted, I consider the disclosure of [0053] of a power safety component not to be limited to a DIN rail component.
The amended claim is supported by an enabling disclosure in the description and drawings that was present prior to the amendment. Therefore, a s40(3) issue of support does not arise as a result of the amendment.
I find the amendment satisfies s102(2)(b).
CONCLUSION
The amendment is allowable. While obvious errors exist in the claims, their correction is readily resolved via the usual rules of construction, and they give no rise to ambiguity as to the scope of the claimed monopoly. Further, the features claimed fall within the disclosure of the specification prior to amendment.
I allow the amendment.
COSTS
The opposition to the s104 amendments is unsuccessful. I award costs in the normal manner against the opponent.
Dr N. R. Madsen
Deputy Commissioner of Patents