Britax Childcare Pty Ltd v Infa-Secure Pty Ltd
[2012] FCA 467
FEDERAL COURT OF AUSTRALIA
Britax Childcare Pty Ltd v Infa-Secure Pty Ltd [2012] FCA 467
Citation: Britax Childcare Pty Ltd v Infa-Secure Pty Ltd [2012] FCA 467 Parties: BRITAX CHILDCARE PTY LTD v INFA-SECURE PTY LTD File number: VID 109 of 2009 Judge: MIDDLETON J Date of judgment: 9 May 2012 Catchwords: PATENTS – construction – claim construction – whether the words in a claim have an ordinary or technical meaning – whether the words in a claim are defined in the specification – role of expert evidence in construing claims – when expert evidence is admissible to construe claims – inadmissible expert evidence otherwise received as a submission under the Federal Court Rules 2011 (Cth).
PATENTS – construction – claim construction – expert evidence from a person skilled in the relevant art – whether person skilled in the art is a non-inventive worker in the relevant field – whether person skilled in the art for novelty and inventive step is the same person skilled in the art for purposes of determining construction.
PATENTS – construction – claim construction generally – purposive approach to construction – construction of patents when multiple patents in suit – each patent to be read separately.
Legislation: Evidence Act 1995 (Cth)
Federal Court of Australia Act 1976 (Cth)
Federal Court Rules 2011 (Cth)
Patents Act 1990 (Cth)
Patents Amendment (Innovation Patents) Act 2000 (Cth)
Patents Regulations 1991 (Cth)Cases cited: Abbott Laboratories v Corbridge Group Pty Ltd(No 2) [2001] FCA 810
Alphapharm Pty Ltd v Wyeth (2009) 82 IPR 71; [2009] FCA 945
Australian Mud Company Pty Ltd v Coretell Pty Ltd (2010) 88 IPR 270; [2010] FCA 1169
Australian Mud Company Pty Ltd v Coretell Pty Ltd (2011) 93 IPR 188; [2011] FCAFC 121Browne v Dunn (1893) 6 R 67
Catnic Components Ltd v Hill & Smith Ltd [1982] RPC 183
Décor Corporation Pty Ltd v Dart Industries Inc (1988) 13 IPR 385
Doric Products Pty Ltd v Lockwood Security Products Pty Ltd (2001) 53 IPR 270; [2001] FCA 1877
Elconnex Pty Ltd v Gerard Industries Pty Ltd (1991) 32 FCR 491
Esco Corporation v PAC Mining Pty Ltd (2008) 76 IPR 191; [2008] FCA 640
Gambro Pty Ltd v Fresenius Medical Care South East Asia Pty Ltd (2004) 61 IPR 442; [2004] FCA 323
H Lundbeck A/S v Alphapharm Pty Ltd (2009) 177 FCR 151
Inverness Medical Switzerland GmbH v MDS Diagnostics Pty Ltd (2010) 85 IPR 525; [2010] FCA 108
JMVB Enterprises Pty Ltd v Camoflag Pty Ltd (2005) 67 IPR 68; [2005] FCA 1474
Kimberly-Clark Australia Pty Ltd v Arico Trading International Pty Ltd (2001) 207 CLR 1
Kimberly-Clark Australia Pty Ltd v Multigate Medical Products Pty Ltd (2011) 92 IPR 21; [2011] FCAFC 86
Kinabalu Investments Pty Ltd v Barron & Rawson Pty Ltd [2008] FCAFC 178
Kirin-Amgen Inc v Hoechst Marion Roussel Ltd (2004) 64 IPR 444; [2004] UKHL 46
Leonardis v Sartas No 1 Pty Ltd (1996) 67 FCR 126
Minnesota Mining and Manufacturing Co v Beiersdorf (Australia) Ltd (1980) 144 CLR 253
Norton & Gregory Ltd v Jacobs (1937) 54 RPC 271
PAC Mining Pty Ltd v Esco Corporation (2009) 80 IPR 1; [2009] FCAFC 18
Ranbaxy Australia Pty Ltd v Warner-Lambert Company LLC(No 2)(2006) 71 IPR 46; [2006] FCA 1787
Ranbaxy Australia Pty Ltd v Warner-Lambert Company LLC (2008) 77 IPR 449; [2008] FCAFC 82
Root Quality Pty Ltd v Root Control Technologies Pty Ltd (2000) 177 ALR 231; [2000] FCA 980
Sachtler GmbH & Co KG v RE Miller Pty Ltd (2005) 65 IPR 605; [2005] FCA 788
Stanway Oyster Cylinders Pty Ltd v Marks (1996) 66 FCR 577
Sunbeam Corporation v Morphy-Richards (Aust) Pty Ltd (1961) 180 CLR 98
Uniline Australia Ltd v SBriggs Pty Ltd (2009) 81 IPR 42; [2009] FCA 222
Welch Perrin & Co Pty Ltd v Worrel (1961) 106 CLR 588
Welcome Real-Time SA v Catuity Inc (2001) 113 FCR 110Date of hearing: 2, 3, 4, 7, 9, 10, 11, 14, 15, 16 and 17 February 2011 Date of last submissions: 14 April 2011 Place: Sydney (heard in Melbourne) Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 413 Counsel for the Applicant: Mr BJ Hess SC with Dr LJ Duncan Solicitor for the Applicant: Norman Waterhouse Lawyers Counsel for the Respondent/Cross-Claimant: Ms J Baird SC with Mr RJL McCormack Solicitor for the Respondent/Cross-Claimant: Chrysiliou Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 109 of 2009
BETWEEN: BRITAX CHILDCARE PTY LTD
ApplicantAND: INFA-SECURE PTY LTD
Respondent/Cross-Claimant
JUDGE:
MIDDLETON J
DATE OF ORDER:
9 MAY 2012
WHERE MADE:
SYDNEY (HEARD IN MELBOURNE)
THE COURT ORDERS THAT:
1.The proceeding be adjourned for directions on 12 June 2012 at 9.30am.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 109 of 2009
BETWEEN: BRITAX CHILDCARE PTY LTD
ApplicantAND: INFA-SECURE PTY LTD
Respondent/Cross-claimant
JUDGE:
MIDDLETON J
DATE:
9 MAY 2012
PLACE:
SYDNEY (HEARD IN MELBOURNE)
REASONS FOR JUDGMENT
(CONSTRUCTION)
INTRODUCTION
In this proceeding the applicant, Britax Childcare Pty Ltd (‘Britax’) seeks relief from the respondent and cross-claimant, Infa-Secure Pty Ltd (‘Infa’), for infringement of nine innovation patents and one Australian standard patent owned by Britax concerning child safety seats, including the tethering and connection means for such seats.
The subject matter of the proceeding entails the following 10 patents owned by Britax and the following claims alleged to be infringed:
Patent Claims alleged to be infringed Innovation Patent No. 2007100856 (‘First Patent’) 1, 2 and 5
Innovation Patent No. 2007100854 (‘Second Patent’) 1, 2, 3 and 4
Innovation Patent No. 2008100763 (‘Third Patent’) 1, 2, 3, 4 and 5
Innovation Patent No. 2008100764 (‘Fourth Patent’) 1, 2, 3 and 4
Innovation Patent No. 2008100765 (‘Fifth Patent’) 1, 2 and 3 Innovation Patent No. 2009100835 (‘Sixth Patent’) 1, 2, 3, 4 and 5 Innovation Patent No. 2009100836 (‘Seventh Patent’) 1, 2, 3, 4 and 5
Innovation Patent No. 2009100837 (‘Eighth Patent’) 1, 2, 3, 4 and 5
Innovation Patent No. 2009100445 (‘Ninth Patent’) 1, 2 and 5 Standard Patent No. 680150 (‘Tenth Patent’) 1, 19 and 20
The particular wording of the claims, and the integers which inform them, are set out further below in these reasons. These reasons only deal with issues of the construction of these claims.
The products which Britax allege infringe the patents in suit include a range of child safety seats manufactured and previously sold by Infa at various times since at least September 2006 and are designated by model numbers CS53, CS54, CS55, CS56 and CS57. Due to the various versions of these products there are 16 different products in issue in this proceeding.
Infa denies infringement of the patents based on its contentions as to the construction of the claims in each of the patents in suit. Infa’s particular construction of the claims is pressed via the opinion of its expert witness, Mr Newman, who provided affidavit and oral evidence, including a joint expert report written in conjunction with Britax’s expert, Mr Hunter, as to the proper way of construing the claims in suit, among other things. The evidence of Mr Newman and Mr Hunter as to the proper construction of the relevant claims is dealt with later in these reasons. I should say at the outset, however, that whilst expert evidence can aid the construction of claims, and the integers which form each claim, claim construction is, in the end, a matter for the Court.
Further to denying Britax’s case on infringement, Infa filed a cross-claim alleging invalidity of the patents in suit and sought revocation of the claims in suit within them.
At the commencement of the trial, Infa’s claims of invalidity were based, generally, on the following grounds:
·the claims of the First to Eighth Patents and Tenth Patent were not fairly based and did not, therefore, comply with s 40(3) of the Patents Act 1990 (Cth) (‘the Act’) and could be revoked pursuant to s 138(3)(f) of the Act;
·the inventions so “claimed” in the First to Ninth Patents lacked novelty under s 18(1A)(b)(i) of the Act and could be revoked pursuant to s 138(3)(b) of the Act;
·the invention so “claimed” in the Tenth Patent lacked novelty and was therefore not patentable under s 18(1)(b)(i) of the Act and could be revoked pursuant to s 138(3)(b) of the Act;
·the alleged inventions in the First to Ninth Patents did not involve an innovative step as required under s 18(1A)(b)(ii) of the Act and could be revoked pursuant to s 138(3)(b) of the Act;
·the alleged invention claimed in the Tenth Patent did not involve an inventive step and therefore did not comply with s 18(1)(b)(ii) of the Act and could be revoked pursuant to s 138(3)(b) of the Act;
·none of the claims in suit in the First to Ninth Patents and claim 19 of the Tenth Patent were clear and succinct and therefore they did not comply with s 40(3) of the Act and could be revoked pursuant to s 138(3)(f) of the Act;
·Britax was not entitled to the patents pursuant to ss 15 and 138(3)(a) of the Act. This was raised against each of the First to Ninth Patents; and
·the First Patent (claims 1 and 2), the Third Patent, and the Fifth Patent were not patentable inventions because they were not useful and therefore lacked the required utility to comply with s 18(1A)(c) of the Act. As a result they could be revoked pursuant to s 138(3)(b) of the Act.
During the course of the trial, amendment to the pleadings by Infa was sought.
Infa sought to raise a new ground of invalidity in relation to the Tenth Patent, namely that the invention was not useful and therefore lacked the required utility. This application for leave to amend arose after evidence was given by certain witnesses relevant to this issue, Mr Bowtell and Mr Hunter. As it eventuated, neither party wanted to lead any further evidence if the amendment were to be allowed, and the issue became one of whether, on the basis of the evidence already led, the ground of invalidity had been made out by Infa. The application to amend was able to be left (as it was) to the giving of reasons as to revocation.
Infa also sought to expand its allegations of external fair basis, because of the evidence of Mr Hunter. Again, this was ultimately to be a matter of legal argument, based upon the evidence of Mr Hunter (which evidence was accepted by Britax). There has been an exchange of written submissions between the parties that has enabled the parties ample opportunity to deal with these matters. I will address this matter in later reasons dealing with revocation.
Infa also contended that in the course of, and prior to, this proceeding, Britax made unjustified threats of patent infringement proceedings. To the extent that this Court finds that the Infa products do not infringe any of the Britax patents, or that any of the claims of those patents are invalid, Infa contended that such threats of infringement made by Britax were unjustifiable. Whether there have been unjustified threats will follow from the findings made in relation to the other allegations made in this proceeding. I observe that the unjustified threats do not relate to all the patents, and much will depend on whether there has been infringement, and the extent of any infringement.
The Court originally ordered that only the question of liability be determined as this stage, although it became apparent during the course of the trial, and has become apparent in the course of preparing these reasons, that the complete disposal of these proceedings will involve a number of staged enquiries and determinations even as to liability.
For instance, one issue that the parties agreed should remain for later determination (if necessary) was when various sales of infringing products occurred, and the relevant date from which infringement could occur.
Further, the parties had approached infringement and revocation on the basis that one or other of the expert witnesses as to construction would be accepted by the Court. From that approach, certain consequences as to infringement and revocation followed. However, as I have not accepted completely either expert witness on construction, the approach adopted by the parties causes it own difficulties in the circumstances of this proceeding, having regard to the different combinations and permutations that may result from findings on construction.
As the High Court of Australia said in Kimberly-Clark Australia Pty Ltd v Arico Trading International Pty Ltd (2001) 207 CLR 1 at [34]:
… [t]he issues in revocation actions, particularly those which turn upon construction, notoriously intersect and overlap.
In the circumstances of this proceeding, with the number of patents and issues in dispute as to construction alone, the intersection and overlap is extensive.
Claim construction is central to this proceeding. The following was observed in the text Patent Law in Australia by Bodkin C, (Thomson Lawbook Co, 2008) at p 220:
…the novelty and inventiveness of a claim cannot be assessed until its precise scope has been determined; neither can it be decided whether a claim has utility or is fairly based on the disclosure of the specification without a determination of its meaning and scope; and the infringement or otherwise of a claim may depend on a careful analysis of what it encompasses.
As I have already noted, Messrs Hunter and Newman prepared and provided to the Court a joint expert report in which they identified points of agreement and difference as to the meaning and interpretation of terms within the patents in suit. The joint expert report also identified points of agreement and difference between the experts as to the presence of integers within the claims in suit in various models and versions of the Infa products. The experts agreed that a large proportion of the points of difference of opinion between them as to the presence of integers in Infa products were directly or indirectly a consequence of differences of opinion between them as to the meaning of terms within and the interpretation and understanding of the patents in suit.
The parties themselves have already reached some consensus on infringement on the basis of a particular construction of the patent. However, as noted, this was on the premise that I adopt the views of one or other of the expert witnesses. I have good reason to believe that once the construction issues are decided, similar consensus could be reached on the basis of the findings of the Court. In addition, the issues concerning revocation will become crystallised once the proper construction of each patent is finalised, and the task of determining Infa’s cross-claim can then proceed on the basis of the correct construction of each patent.
Therefore, in accordance with the approach dictated by s 37M of the Federal Court of Australia Act 1976 (Cth), the Court will first deal with the construction issues as presented by the parties.
INNOVATION PATENTS
Before turning to construction, it is useful to make some brief observations on innovation patents.
Each of the nine innovation patents in suit claims a priority date of 9 June 2004 through PCT application PCT/AU 2005/000820 (Australian No. 2005251826) (the ‘Parent Application’) from Australian provisional patent application 2004903092, filed 9 June 2004. The Parent Application being for a standard patent, is entitled “Child Safety Seat, Shell and Harness”, was filed on 9 June 2005 and published by the World Intellectual Property Organisation on 22 December 2005 under international publication number WO 2005/120910.
Pursuant to regs 3.12(1)(b) and 3.12(2) of the Patents Regulations 1991 (Cth) (‘the Regulations’), in order to maintain the priority date of 9 June 2004, the claims of the Parent Application must be fairly based on provisional patent application 2004903092. Infa challenged the entitlement of each innovation patent to claim priority from the Parent Application and, therefore, the right to claim the priority date of 9 June 2004. Infa contended that the alleged invention claimed by each of the innovation patents is not fairly based on the matter disclosed in the specification filed in respect of the Parent Application and, therefore, the earliest priority date to which the claims of each innovation patent may be entitled is the date of its own filing.
Infa has not challenged the Parent Application’s entitlement to claim priority from provisional patent application 2004903092. Infa does not challenge the Tenth Patent’s claim to a priority date of 1 August 1994, based on an Australian provisional application No. PM7154.
The innovation patent system is intended to fill the “gap” that existed with regard to minor and incremental innovations. It offers a quick, less expensive and simple form of protection.
The innovation patent system was introduced in mid-2001 as a result of the Advisory Council on Intellectual Property (‘ACIP’) Review of the Petty Patent System. The Patents Amendment (Innovation Patents) Act 2000 (Cth) amended the existing Act to accommodate the innovation patent system. The majority of features of the innovation patent were adopted from ACIP’s recommendations. Accordingly, innovation patents have a maximum eight year term, cover no more than five claims, are not subject to opposition proceedings prior to grant, and are only subject to substantive examination at the direction of the Commissioner, or after grant at the request of the patentee or a third party. The threshold level of inventiveness is lower.
Each of the nine innovation patents in this proceeding was “divided” out of the Parent Application: see s 79B of the Act. Britax has submitted that Infa has made various modifications to its products in an endeavour to escape from the monopoly permitted to Britax based on the Parent Application. Some of the innovation patents and claims within those innovation patents were specifically drafted to catch within their scope the alleged infringing Infa products, and to bring those products before the Court.
OUTLINE OF THE PATENTS
I now turn to outline the specification of the patents in suit. As fair basis is in issue, it is useful to turn to the Parent Application first.
The Parent Application
The field of the invention applied for is stated to be “child safety seats”.
The Parent Application then gives a brief outline of the prior art and the impetus for the proposed invention:
In current child safety seats, the child is restrained in the safety seat by a child harness, which is connected at the top and bottom to the shell of the safety seat. The seat shell itself is connected to the vehicle by means of the vehicle seat belt, for example a lap/sash belt. In addition, it is usual to have a tether strap connected to the shell and to a vehicle anchorage point. Typically, an upper tether strap is connected to a vehicle anchorage point on a shelf behind the rear seat using a latching hook connector.
However, the shell of a child safety seat can have imperfections and weak points, which may give way in the event of a collision, thereby compromising the safety of the infant. Furthermore, children of different sizes are not always sufficiently restrained in the safety seat.
It is an object of the present invention to reduce or eliminate some or all of the disadvantages of conventional child safety seat arrangements.
The specification to the Parent Application then moves to a summary of the invention. Four aspects of the invention are given.
The first aspect is that there is a child safety seat arrangement including a harness to hold a child in a safety seat; a “first mounting arrangement” to secure the harness to the vehicle, where the first mounting arrangement is independent of the safety seat. Preferably, the child safety seat arrangement includes a seat shell to seat the child, and further, a “second mounting arrangement” to secure the seat shell with respect to the vehicle.
From this, it appears that the “first mounting arrangement” allows the harness to be connected to the vehicle (and hold the child) independently of there being any seat shell. The “second mounting arrangement” is attached to the seat shell, so the seat shell is also secured to the vehicle.
The specification describes these arrangements by reference to deficiencies that were then apparent in relation to child safety seats:
Current arrangements rely on the mechanical integrity of the seat shell to secure the child with respect to the vehicle. In the event of a collision, the collision loads are applied to the seat shell. Therefore, the safety of the infant is dependent on the integrity of the seat shell. However, this disadvantage is alleviated with the present invention, wherein the harness is secured independently of the seat shell.
Given that the harness is independent of the seat shell, the specification describes how it is attached to the vehicle. Usually, both the upper and lower parts of the harness will be “secured” to the vehicle. The upper part is generally secured to an “upper vehicle anchorage point”, and the lower part is generally secured to the vehicle via the vehicle seat belt. It is contemplated that the first mounting arrangement may include “one or more loops to accommodate a vehicle seat belt”, so the lower part of the harness can be secured to the vehicle.
The first mounting arrangement, which connects the harness to the vehicle, may also be connected to one or more vehicle anchorage points, as may the second mounting arrangement. Both the first and second mounting arrangements may therefore include a connecting component, such as a latching hook connector. So, although the first and second mounting arrangements may be independent of one another, they may include shared components, and it may be preferable for them to do so. Often, the specification notes, anchorage points often provide only one aperture or fitting to receive a latching hook connector.
Accordingly, in some embodiments of the proposed invention, one of the mounting arrangements may include a connecting component to connect to the vehicle anchorage point, which also features an aperture to receive a connecting component of the second mounting arrangement.
As noted, the first aspect of the invention also contemplates a harness to hold the child in a safety seat. The harness may include two shoulder straps to extend over the child’s shoulders and along their chest. The shoulder straps may be “provided” by looping a main harness strap behind the seat shell and through apertures in the seat shell. At the bottom end of the harness, it is preferable that the straps have a loop through which the vehicle seat belt can be placed.
The length of the harness is preferably adjustable by a buckle. The buckle may be covered when in use by padding. In some embodiments of the proposed invention, the harness may also be adjusted by passing it through higher or lower apertures in the seat shell.
It is preferable that the harness includes a cross strap connecting the two shoulder straps below the child’s shoulders. This may be “strongly fixed” to one strap (for example, by stitching) and is attached to the other strap, but removable (for example, by a loop through which the other shoulder strap can be passed.
In addition, a crutch strap, which is attached to the seat shell, may be secured to the harness or the vehicle seat belt to keep the vehicle seat belt as low as possible.
The first mounting arrangement may also include extension straps which are adjustable via buckles to allow adjustment of the distance between the harness and the point or points at which it is secured to the vehicle.
The specification then turns to the second aspect of the proposed invention. That is, a child safety seat arrangement including a seat shell to seat a child. This seat will have at least one aperture, and a harness to hold the child in the seat shell. The harness includes two shoulder straps to pass over the child’s shoulders, wherein the harness passes through at least one aperture in the seat shell.
According to the specification, this second aspect allows the shoulder straps to be closer to the child’s shoulders than in the then current child safety seat arrangements, thus retaining the child more securely.
It is preferable that there are one or more pairs of apertures through which shoulder straps can be passed. The shoulders straps are provided by looping a main harness strap through a pair of apertures behind the seat shell. Ideally, the pairs of apertures are “vertically spaced” allowing the height of the shoulder straps to be adjusted. It is also preferable that the shoulder straps each include a loop to receive a vehicle seat belt.
As already mentioned in relation to the first aspect of the invention, the specification repeats that the harness may feature a cross strap connecting the two shoulder straps which is removable from one strap. This may be accomplished by a loop of the cross strap that can be slipped on or off the bottom of the shoulder strap.
In a third aspect of the proposed invention, there is a seat shell for a child safety seat having apertures through which one or more parts of a harness can be passed. Preferably, there are two or more pairs of apertures, thereby allowing the height of the harness to be adjusted.
In a fourth aspect of the proposed invention, there is a harness for a child safety seat arrangement, including a main shoulder strap which can be looped behind a seat shell to provide two shoulder straps to extend over a child’s shoulders.
The harness may also be suitable for use simply with the vehicle seat, without any seat shell.
The specification filed with the Parent Application gives a “brief description of the drawings” annexed to the specification. The 11 drawings annexed are stated to be an illustrative embodiment of the invention. These Figures have been annexed to this judgment as Annexure ‘A’. These Figures also feature in the nine innovation patents which derive from the Parent Application, though there are some changes (for example, additional numbers feature) or the number given to the particular figure is different. For simplicity, I will refer to figures substantially reproduced in the innovation patents by their number reference given in the Parent Application. Figure 1 is a view of the harness for use according to the present invention. Figure 2 is a view of a harness according to another embodiment of the present invention. Figure 3 is a view of a child safety seat arrangement according to a preferred embodiment of the present invention, in operation. Figure 4 shows a rear view of a child safety seat arrangement according to a preferred embodiment of the present invention. Figure 5 is a top rear view of a child safety seat arrangement according to a preferred embodiment of the present invention, attached to a vehicle anchorage point. Figures 6 to 11 show detailed views of the mounting arrangements as used in various embodiments of the present invention.
The specification filed with the Parent Application then gives a description of the preferred embodiment of the proposed invention, by reference to Figures 1 to 11.
Figure 1 shows a child harness (indicated by the number 20), consisting of two shoulder straps (21) and a cross strap (22). The shoulder straps have padding (23) and the lower end of each shoulder strap has a loop (24) to receive a vehicle seat belt. The length of the harness is adjustable in length by an adjustable buckle (21) covered by the padding (24). There is also a latching hook connector (26) on the upper end of the harness.
Figure 2, being another embodiment of the present invention, shows the same harness with an additional extension strap (27) which is adjustable by means of another adjustable buckle (29). The extension strap has a connection buckle (35) that enables attachment to the latching hook connector (26). A second latching hook connector (29) is attached to the other end of the extension strap (27).
Figure 3 gives a front view of the operation of the proposed invention. The harness is shown holding the child in a seat shell (30), by means of shoulder straps. The harness is passed through a pair of apertures (32) in the seat back of the seat shell. The shoulder straps extend over the child’s shoulders and chest. The vehicle lap belt (33) is passed through loops at the lower end of the shoulder straps. The lap belt can then optionally be connected to the seat shell by means of a crutch strap (34), which helps keep the lap belt as low as possible.
The mounting arrangements for securing the harness (20) and the shell (30) to the vehicle are shown in Figures 4 and 5. A tether strap (40) is connected at one end to the seat shell at connection points (41 and 42), and at the other end to a vehicle anchorage point (50) through a latching hook connector (43). The length of the tether strap is adjustable through the buckle (46) allowing the mounting arrangement to suit different vehicles.
In Figures 3 and 5, the seat shell is shown to include multiple pairs of apertures (32, 32a and 32b). The harness can be looped through any of these pairs to adjust the height of the shoulder straps. It is preferable that the straps are located close to the child’s shoulders as this gives greater retention of the child in the safety seat. Multiple pairs of apertures are preferable; but the invention works if there is only one aperture through which to pass the harness. The shoulder straps could be joined before they are passed through a single aperture.
The specification states that the mounting arrangements for securing the harness and the seat shell to the vehicle may take other forms. Figures 6 to 11 show a variety of mounting arrangements for the harness and seat shell.
The mounting arrangement in Figure 6 does not require the connection strap (44), the harness is secured to the vehicle anchorage point (50) simply by means of the two latching hook connectors (26) and (43). The latching hook connector (43) in Figures 6 and 7 includes two apertures to receive both the tether strap (40) and hook connector (26). Typically, latching hook connectors only include one aperture to receive the strap they are intended to secure. However, in the proposed invention, a single latching hook may be common to both of the mounting arrangements for the harness and for the seat shell. Therefore, the latching hook may need to be attached to one or more components from both mounting arrangements. The additional aperture in latching hook connector (43) in Figure 6 increases flexibility in attaching multiple other components to a single latching hook connector.
Figure 8 shows in more detail the mounting arrangement shown in Figures 4 and 5. A tether strap (40) is connected to a vehicle anchorage point (50) through latching hook connector (43). The harness is secured with respect to the vehicle through the latching hook connector (26), connection strap (44), buckle (45) and latching hook connector (43). In this instance, the latching hook connector (43) is common to both the mounting arrangement for the harness and the mounting arrangement for the seat shell.
Figures 7 and 9 show other options for securing a tether strap (40) to the latching hook connector (43).
Figures 10 and 11 show arrangements which can be used when there are two vehicle anchorage fittings (51 and 52). Here, the mounting arrangements for the seat shell (30) and the harness (20) are independent. The seat shell (through the tether strap (40)) is secured to the vehicle by connecting the latching hook connector (43) to one of the vehicle anchorage fittings (51). The harness is connected to a separate vehicle anchorage fitting (52). Figure 11 shows a connection directly by means of latching hook connector (26), whereas in Figure 10 the connection strap (44) and buckle (45) are also used to secure the child harness to vehicle anchor fitting (52).
The specification filed with the Parent Application then notes that although a number of embodiments of the present invention have been described, the invention is not limited to the embodiments disclosed. It is capable of numerous rearrangements, modifications and substitutions without departing from the scope of the invention. Modifications and variations such as would be apparent to a skilled addressed “are deemed within the scope of the present invention”.
The specification then ends in 32 claims. Claims 1, 21, 29 and 30 can be considered the “main claims”. Claims 2 to 20 relate to claim 1. Claims 22 to 28 relate to claim 21. Claims 31 and 32 are omnibus claims.
The Parent Application was not granted. However, from its complete specification for a standard patent, nine innovation patents were filed as divisional applications.
The First Patent – “Improved tether strap for a child safety seat”
The first patent states the field of its invention to relate to a “tether strap for a child safety seat”. The background to the invention is described in the same terms as the background in the Parent Application.
The summary of the invention gives only one aspect to the invention, which is to provide a tether strap for a child safety seat for connection to an anchorage point on a motor vehicle comprising: a tether strap having both ends secured with respect to the child safety seat and the tether strap secured with respect to the anchorage point intermediate its ends; and a connection strap carried by the tether strap and secured at a first end with respect to the anchorage point and having a connection means at the other end.
It is preferable that the connection strap provides a means of attaching the harness used in the safety seat while also securing the tether strap to the same anchorage point. The upper end of the shoulder straps is able to be secured directly with respect to the anchorage point rather than to the shell of the safety seat.
As in the specification filed with the Parent Application, the specification to the First Patent then goes onto describe the problem with “current arrangements” for child safety seats. Namely, the mechanical integrity of the seat shell can be compromised in the event of a collision so the safety of the infant is dependent on the integrity of the seat shell. The specification then goes on to describe how the present invention alleviates this problem. This feature of the specification recurs throughout all nine innovation patent specifications, with some minor differences.
In this instance, the specification specifies that the upper securement point of the harness is able to be secured independently of the seat shell (as opposed to the harness generally being secured independently).
The specification filed with the Parent Application goes on to describe the way in which “both an upper part and a lower part of the harness will be secured to the vehicle”. The specification for the First Patent does not detail the ways in which the harness can be secured to the vehicle. It goes on to describe the harness arrangement in largely the same terms as the specification to the Parent Application. That the connecting strap is adjustable in length is a feature added to the first patent. The First Patent also contemplates that a separate extension strap can be used which is ideally adjustable in length by adjustable buckles. The Parent Application specification only considered that the first mounting arrangement may include extension straps (plural) which are ideally adjustable by buckles.
The First Patent specification also clarifies that the apertures are in the “backrest portion”, as opposed to the “seat shell” or “seat back”. “Seat shell” is also described in the First Patent as “safety seat”.
The specification then lists a brief description of the drawings. It features Figures 1 to 5 from the Parent Application, and lists Figure 8 (re-labelled as Figure 6 in the First Patent) as showing a view of a mounting arrangement as used in various embodiments of the present invention. Figure 1, referring to the same figure as in the Parent Application, is said to be a view of a harness “incorporating an extension strap”. This feature was not emphasised in the Parent Application specification.
A description of the preferred embodiment of the First Patent is then given by reference to the Figures. Figures 1 to 5 are described in substantially the same terms as in the Parent Application specification. In relation to Figures 3 to 5, it is noted that it is possible to have the harness passed through a single aperture in the “head end of the backrest portion or around grooves in the perimeter of the backrest portion”. There is no mention of such grooves in the Parent Application specification. It is also specifically stated that there is an aperture in the buckle (45) which forms part of the various components forming the arrangement by which the harness is connected to the vehicle.
Again, the First Patent notes that the mounting arrangements for securing the harness and safety seat can take other forms. Figure 8 is said to show in more detail the mounting arrangement in Figures 4 and 5. It is described in the same terms as in the Parent Application specification.
The First Patent specification then notes, in the same way as the Parent Application, that the invention is not limited to the embodiments disclosed, but capable of numerous rearrangements, modifications and substitutions.
The First Patent specification then ends in five claims, the first being the same as the consistory clause in the summary of the invention. The three claims in issue are outlined below.
The Second Patent – “Child safety seat, shell and harness”
The field of the Second Patent is said generally to relate to child safety seats. Again, the background of the invention is materially the same as in the Parent Application specification.
The summary of the invention states that the invention provides a child safety seat for a motor vehicle including: a seat for seating a child therein comprising a seat portion and a backrest portion wherein the motor vehicle seat belt extends across the waist of the child; a tether strap, secured with respect to a head end of the backrest portion and adapted to be secured to an anchorage point on the motor vehicle; and a harness to secure the child with respect to the safety seat comprising a pair of shoulder straps that are each connected at their lower end to the vehicle seat belt adjacent to the child’s waist and wherein the harness extends behind the backrest portion to be secured at its upper-end with respect to the anchorage point.
The specification then describes problems with current child safety seat arrangements and how the present invention alleviates this in the same terms as the Parent Application specification.
The Second Patent specification then describes the way in which the harness is secured with respect to the vehicle in similar terms to the Parent Application. The patentee has also added that the upper part of the harness will generally be secured to a vehicle anchorage point “such as on a rear parcel shelf or on the floor behind the seat”.
When describing the way in which the lower part of the harness is secured with respect to the vehicle by a vehicle seat belt, the Second Patent adds more detail than in the Parent Application specification. The sash and lap portion (or just the lap portion if it is a lap only seat belt) of the seat belt may be brought together over the waist of the child “and therefore act to restrain the child and safety seat”. The lower part of the harness may include one or more loops through which the vehicle seat belt locates, allowing the lower part of the harness to be secured with respect to the vehicle. Another difference is that the Parent Application specification referred to the loops in the lower end of the harness as being part of the “first mounting arrangement”, rather than the harness specifically.
The Second Patent specification states that the tether strap may comprise a connection strap attached to and extending from the tether strap latching hook to which the harness is attached. As such, the tether strap and harness may be independent of each other, but they may also include shared components. This part of the specification differs from the Parent Application specification in that the latter referred more generally to the “first and second mounting arrangements” being independent, but also including shared components. It would seem that the patentee has refined this aspect of the specification by the time they turned their mind to this innovation patent.
Accordingly, in some embodiments, the tether strap may include a connecting component to connect to the vehicle anchorage, which is further provided with an aperture to receive the harness latching hook connector. The connecting component which is connected to the vehicle anchorage could then be shared by both the tether strap and harness. The specification further contemplates that “there are, of course, other ways in which a component may be shared”.
The harness is described largely in the same terms as the First Patent. In saying this I am aware that two separate patents cannot be construed together; I wish to highlight that the Second Patent specification has adopted similar changes in wording as the First (for example from referring to a “seat shell” to a “safety seat”). In the Second Patent, the connecting component (for the harness) “may” include extension straps ideally adjustable by buckles.
The Second Patent adds that the connection of the harness to an upper vehicle anchorage point allows the shoulder straps to be located closer to the child’s shoulders than in current child safety seat arrangements, allowing the child to be more securely retained.
Again, preferably there are one or more pairs of apertures in the backrest portion, or grooves in the perimeter of the head end of the backrest portion, through which the shoulder straps can be passed to retain the shoulder straps in position. Again, the “grooves” in the backrest are a new feature in the Second Patent as compared to the Parent Application specification.
The specification then gives a brief description of Figures 1 to 6. The description of Figures 1 to 5 are largely the same as in the Parent Application specification, though Figure 1 is, again, said to “incorporate an extension strap”. Figure 8 from the Parent Application specification is re-labelled as Figure 6, said to show a view of a mounting arrangement as used in various embodiments of the present invention.
Turning to a description of the preferred embodiment with reference to the figures, the preferred embodiment is described much the same way as the First Patent. Figure 1, notably, is said to have a child harness (20) consisting of two shoulder straps (21) “formed from a length of strap” and a cross strap (22). There are no other material differences between the First and Second Patents. It is not necessary to repeat the preferred embodiment again, though I reiterate that in doing so, patent documents are self-contained, independent documents, and must be construed as such.
The specification ends in five claims, the first being the same as the consistory clause in the summary of the invention. The four claims which are in issue are outlined below.
The Third Patent – “Improved tether strap for a child safety seat incorporating a connection means”
The field of the invention of the Third Patent is said to relate to a “tether strap for a child safety seat”.
The background of the invention is the same as that in the Parent Application specification.
The first (and only) aspect of the invention is for a tether strap for a child safety seat to an anchorage point on a motor vehicle, wherein a harness is used with the child safety seat to restrain a child in the child safety seat, the tether strap comprising: a strap having ends secured with respect to the child safety seat and secured with respect to the anchorage point at a point intermediate its ends; and a connection means carried by or with respect to the tether strap, the connection means extending away from the tether strap towards the child safety seat and having an aperture at an end spaced from the tether strap for attachment of the harness.
It is preferable that the connection means allows attachment of the harness used in the safety seat while also securing the tether strap to the same anchorage point. The upper end of the shoulder straps are able to be secured directly with respect to the anchorage point rather than to the shell of the safety seat.
The Third Patent repeats the “current arrangements” for child safety seats and problems therein. It then continues that the disadvantage stated is alleviated with the present invention, where the upper securement point of the harness can be secured independently of the seat shell and with respect to the anchorage point to which the tether strap is connected.
The description of securing the mounting arrangements to the vehicle is not repeated in the Third Patent. It does, however reiterate the description of the harness and the crutch strap in substantially the same terms as in the Parent Application. The connecting means for the harness may comprise a strap that is adjustable in length or a separate extension strap which is adjustable by buckles.
A brief description of the drawings is given. Again, Figures 1 to 5 are annexed to the Third Patent. Figure 8 is also annexed, but re-labelled as Figure 6. These descriptions are, on the whole, in the same terms as in the First and Second Patents.
A description of the preferred embodiment of the invention with reference to the figures is then given. Again, it is in similar terms to that given in the First and Second Patents. Figures 4 and 5 are particularly helpful describing the invention. They show clearly the tether strap (40) is connected to the backrest portion of the safety seat shell (30) at connection points (41 and 42), and at the other to a vehicle anchorage point (50) through latching hook connector (43). The length of the tether strap (40) can be adjusted through the adjustable buckle (46) to allow the mounting arrangement to suit different vehicles.
The specification ends in five claims, the first being the same as that in the consistory clause in the summary of the invention. All claims are in issue. They are outlined below.
The Fourth Patent – “A child safety seat having a harness secured with respect to a tether strap”
The field of the Fourth Patent relates to “child safety seats”.
The background of the invention is largely the same as in the Parent Application. It should be noted, however, that the tether strap is not described in this Patent as being “connected to the shell and to a vehicle anchorage point” but as being “connected between the shell and a vehicle anchorage point”.
The summary of the invention states that the invention provides a child safety seat for a motor vehicle including: a seat for seating a child therein comprising a seat portion and a backrest portion wherein the motor vehicle seat belt extends across the waist of the child; a tether strap secured with respect to a head end of the backrest portion and adapted to be secured to an anchorage point on the motor vehicle; and a harness to secure the child with respect to the safety seat comprising a pair of shoulder straps that are each connected at their lower end to the vehicle seat belt adjacent the child’s waist and wherein said harness extends behind the backrest portion to be secured at its upper-end with respect to said tether strap anchorage point.
The specification then reproduces what was said in the Parent Application about problems with “current arrangements” for child safety seats and the way in which the invention alleviates these problems.
In giving a summary of the invention, the Fourth Patent specification reproduces much of the text used in the Parent Application specification in relation to the first aspect of the invention described in that Application. Some amendments have been made. Notably, the terms “first mounting arrangement” and “second mounting arrangement” have been replaced with a more precise description of those arrangements, being the harness and the tether strap and related components.
For example, rather than saying that the “first and second mounting arrangements may be independent of each other, [although] they may include shared components”, the patentee has chosen to say that the tether strap may comprise a connection means carried by the tether strap to which the harness is attached.
Rather than the “first mounting arrangement” being adjustable, the Fourth Patent states that it is the connecting component that may include extension straps which are ideally adjustable in length by buckles.
The harness is connected with respect to an upper vehicle anchorage point allowing the shoulder straps to be located closer to the child’s shoulders than in current child safety arrangements.
Figures 1 to 5 are annexed to the Fourth Patent. Figure 8 is likewise annexed, though again, re-labelled as Figure 6 for the purposes of the Fourth Patent.
A description of the preferred embodiment of the invention is given with reference to the figures. It is similar to the other patents already mentioned.
The invention ends in five claims. The first claim corresponds with the consistory clause given in the summary of the invention. The four claims in issue are outlined below.
The Fifth Patent – “A child safety seat having a tether strap with connection means”
The field of the Fifth Patent is stated to be “child safety seats”. The background of the invention is largely the same as that in the Parent Application, and has the same amendments as the Fourth Patent.
The summary of the invention begins with a consistory clause corresponding with claim 1 of the invention, stating that the present invention provides a child safety seat for a motor vehicle including: a seat for seating a child therein comprising a seat portion and a backrest portion; a tether strap, secured with respect to a head end of the backrest portion and adapted to be secured to an anchorage point on the motor vehicle; and a connection means carried by the tether strap by a first aperture securable at a first end to the anchorage point and including at an opposed second end a second aperture.
The specification then outlines the problems with “current arrangements” for child safety seats and how the present invention alleviates these problems. This is in the same terms as in the Parent Application specification.
The remainder of the summary and the specification is materially the same as the Fourth Patent.
The invention ends in five claims. Three of those are in issue, and are outlined below.
The Sixth Patent – “A tethering means for a child safety seat arrangement”
The field of the Sixth Patent is stated to relate to a “tethering means for a child safety seat”.
The background of the invention is, for the most part, the same as that described in the Parent Application specification. The application for the Sixth Patent was filed on 21 August 2009. The patentee begins by acknowledging that “in some child safety seats, the child is restrained in the safety seat by a child safety harness which is connected… to the shell of the safety seat”. In previous divisional patents, it was said that this arrangement was “current”. It is also added (as compared to the Parent Application specification) that “children of different sizes are not always sufficiently restrained in the safety seat of this type”.
It is then noted that it is an object of the invention to eliminate some or all of the disadvantages of “the above described” child safety seat arrangements. In the First to Fifth Patents, the child safety seat arrangements are described as “conventional”.
The Sixth Patent is a departure from the first five. It describes four aspects to the invention.
In the first aspect, the invention provides a tethering means for a child safety seat in a motor vehicle wherein the child safety seat has seat and backrest portions, the tethering means comprising: a first strap for tethering the backrest portion of the child safety seat with respect to an anchorage point in the motor vehicle, and a second strap carried by or with respect to the first strap and having a connection means at its free end to which a child safety harness is adapted to be connected.
In a second aspect, the invention provides a tethering means for a child safety seat for connection to an anchorage point in a motor vehicle wherein a child safety harness is used to restrain a child in the child safety seat, the tethering means comprising: means for tethering the child safety seat and securable with respect to the anchorage point; and a connection means carried by or with respect to the tethering means, the connection means extending towards the child safety seat and having an aperture adapted for attachment of the child safety harness.
In a third aspect, the invention provides a tether strap for tethering a child safety seat to a vehicle, wherein the tether strap incorporates means for connecting both the tether strap and a child safety harness used with the safety seat to an anchorage point of the vehicle.
In a fourth aspect, the invention provides a tethering means in the form of a strap for tethering a child safety seat to an anchorage point in a motor vehicle, wherein a child safety harness is used to restrain a child in the safety seat, the tethering means including: a connection means carried by the strap by locating the strap through a first aperture in the connection means, the connection means securable at a first end to the anchorage point and including at an opposed end a second aperture for an attachment of a child safety harness.
It is preferable that the second strap or connection means allows attachment of the child safety harness used with the child safety seat while also being able to separately secure the tethering means to a single anchorage point. The upper end of the shoulder straps is then also able to be secured with respect to the same anchorage point rather than to the shell of the safety seat.
The Sixth Patent then goes onto note the problems associated with “child safety seats where the child safety harness attaches to the shell”. This is largely the same as the problems described with “current arrangements” in the First to Fifth Patents. That is, such seats rely on the mechanical integrity of the seal shell to secure the child with respect to the vehicle. In the event of a collision, the safety of the infant is dependent on the integrity of the seat shell. This disadvantage is alleviated in the Sixth Patent, where the upper securement point of the child safety harness is able to be secured independently of the seat shell and with respect to the same anchorage point to which the tether strap is connected.
The specification goes on to describe the harness in similar terms to the Parent Application specification. The way in which the shoulder straps are formed and passed through the apertures is described slightly differently. Relevantly, a child safety harness includes two shoulder straps that extend over the child’s shoulders and chest. These shoulder straps may be provided by a length of strap with ends locating through respective pairs of apertures in the backrest portion of the safety seat. Further, the shoulder straps preferably each include a loop at their ends to receive a vehicle seat belt.
As in the Parent Application specification, the harness is preferably adjustable by a buckle which may be covered by padding. Higher or lower apertures in the seat shell may also permit adjustment. The cross strap and crutch strap is likewise described in similar terms to the Parent Application.
The specification then turns to a brief description of the drawings annexed. Figures 1 to 9 from the Parent Application are annexed.
Some figures are, however, given a different and more detailed description in the Parent Application. All the figures in the Sixth Patent have been annexed to this judgment as Annexure ‘B’. I will outline those which are relevantly different to those in the Parent Application. Figure 2 is said to be a view of a child safety harness incorporating an adjustable extension means. Figure 4 is a rear view of a child safety seat arrangement according to a preferred embodiment of the present invention showing the child safety seat harness attached to a connection means on the tether strap. Figure 5 is a top rear view of a child safety seat arrangement as shown in Figure 4 with the tether strap attached to a vehicle anchorage point. Figure 6 shows a detailed view of a latching hook connector and connection means with a tether strap and child safety harness attached. Figure 7 shows a detailed view of a latching hook connector similar to that shown in Figure 6, but with a single tether strap attached. Figure 8 shows a latching hook connector with a connection means carrying a buckle for connection of the child safety harness. Figure 9 shows a latching hook connector having a single tether strap attached with a connection means and buckle attached to the tether strap.
The specification then turns to a description of the preferred embodiment of the invention, with reference to Figures 1 to 9. Figures 1 to 9 annexed to the specification contain various additional number references not previously used in the Parent Application specification. Figures 6 to 9 in particular detail additional features. I will describe these in turn.
Figure 6 shows a variation to the connection of a tether strap (40) and child safety harness (20) to an anchor bracket (50). The latching hook connector (43) comprises a body having a flat plate portion (48) with a hook (39) at one end that attaches to the aperture (51) of the anchor bracket (50). The latching hook connector (43) has an aperture (49) through which the tether strap locates which enables the tether strap (40) to extend between the connection points (41 and 42). The connection means comprises the portion of the plate (48) that extends between the aperture (49) and the aperture (47) with the latching hook (26) of the child safety harness attaching to the aperture (47). This thereby secures the child safety harness with respect to the anchorage bracket.
Figure 7 shows a similar arrangement, but the tether strap (40) is a single strap having one connection point to the safety seat (30). The apertures (49 and 47) are more closely spaced than in Figure 6, with a loop (53) on the end of the tether strap (40) passing through both apertures. The latching hook connector (26) connects to the aperture (47) and locates in a recess (54) on one edge of the aperture (47).
Figures 8 and 9 show a variation on the arrangement shown in Figures 4 and 5. In Figure 8, the bracket (45) has two apertures (56 and 57) with a connection strap attached through and extending between the aperture (49) in the latching hook connector (43) and the aperture (56) in the bracket (45). The latching hook connector (26) then attaches to the aperture (57) in the bracket (45). The tether strap (40) also passes through aperture (49).
In Figure 9, a single tether strap (40) is used as in the version shown in Figure 7. However, the connection strap (44) is stitched to the tether strap (40) at one end and connected to aperture (56) of bracket (45) at the other end. The latching hook connector (26) then attaches to aperture (57).
Again, the specification states that it should be understood that the invention is not limited to the embodiments disclosed.
The specification then ends in five claims, all of which are in issue. They are outlined below.
The Seventh Patent – “A child safety seat and tethering means and child safety harness for the child safety seat”
The field of the Seventh Patent is stated to relate to child safety seats.
The background of the invention is stated as in the Sixth Patent.
The summary of the invention gives four aspects to the invention. In a first aspect, the invention provides a child safety seat for a motor vehicle including: a seat for seating a child therein comprising a seat portion and a backrest portion wherein the motor vehicle seat belt extends across the waist of the child; a tethering means for tethering the backrest portion and adapted to be secured to an anchorage point on the motor vehicle; and a child safety harness to secure the child with respect to the safety seat comprising a pair of shoulder straps that are each connected at their lower end to the vehicle seat belt adjacent the child’s waist and wherein the child safety harness extends from the backrest portion to be secured with respect to the anchorage point by a connection means carried by or with respect to the tethering means.
In a second aspect, the invention provides a child safety seat for a motor vehicle including: a seat for seating a child therein comprising a seat portion and a backrest portion; a tethering means for tethering the backrest portion of the child safety seat and adapted to be secured to an anchorage point on the motor vehicle; and a connection means which is adapted to be secured at one end to the anchorage point having a first aperture adapted to have connected thereto a child safety harness and having a second aperture through which the tethering means locates.
In a third aspect, the invention provides a child safety seat arrangement for anchoring a child safety seat, and a child safety harness used with the child safety seat, to an anchorage point of a motor vehicle including: connection means attachable to the anchorage point and including a first aperture for facilitating location of a tethering means of the child safety seat including a second aperture for facilitating connection with the child safety harness such that the child safety seat and the child safety harness are anchored to the anchorage point of the motor vehicle.
In a fourth aspect, the invention provides means for securing a child safety harness and child safety seat to an anchorage point in a motor vehicle including: a child safety seat having seat and backrest portions; a child safety harness for a child seated in the safety seat; means for tethering the safety seat to an anchorage point in the motor vehicle by a tethering means which is adapted to tether the safety seat to the anchorage point by a connection means, the connection means also adapted to have the child safety harness connected thereto.
It is preferable that the tethering means is in the form of a tether strap which is secured to the backrest portion of the safety seat but may also be secured towards the upper end of the backrest portion adjacent or at the head end of the safety seat.
The specification then repeats the problem outlined in the Sixth Patent about child safety seats which have the harness attached to the seat shell. In the same way, the specification outlines how the present invention seeks to alleviate this problem.
The specification then outlines the way in which the child safety harness can be secured with respect to a vehicle. This is in similar terms to those used in the Fourth and Fifth Patent specifications.
In some embodiments, the tethering means may include a connecting component to connect to the vehicle anchorage point, which is further provided with an aperture to receive the child safety harness latching hook connector. The connecting component which is connected to the vehicle anchorage point could then be shared by both the tether strap and child safety harness. The specification considers that there are, of course, other ways in which a component may be shared.
The harness is then described in similar terms as in the Fourth and Fifth Patents, with some changes in wording. The harness is said to include two shoulder straps to extend over the child’s shoulders and chest. These may be provided by a length of strap positioned behind the safety seat and extending through a pair of apertures in the backrest portion. Further, each end of the shoulder straps preferably includes a loop to receive a vehicle seat belt.
The harness is again stated to be preferably adjustable by way of a buckle. It also preferably includes a cross strap and a crutch strap as described in the Fourth and Fifth Patents. The connecting component is likewise adjustable as described in the latter patent specifications.
Preferably, there are one or more pairs of apertures in the backrest portion or grooves in the perimeter of the head end of the backrest portion through which, or around which, the shoulder straps can be passed to retain the shoulder straps in position.
The specification then gives a brief description of the drawings, which is the same as that in the Sixth Patent. Figures 1 to 9 feature the same changes as the figures annexed to the Sixth Patent. Similarly, the description of the preferred embodiment of the invention with reference to the figures is the same as that in the Sixth Patent.
The invention ends in five claims. Claims 1, 2, 4 and 5 correspond with the consistory clauses (aspects) of the invention in the specification. All claims are in issue and are outlined below.
The Eighth Patent – “Means of tethering a child safety seat and child safety harness to a single anchor point in a motor vehicle”
The field of the Eighth Patent is stated to relate to child safety seats, and child safety harnesses adapted to be secured to a single anchorage point of a motor vehicle.
The background of the invention is the same as given in the Sixth and Seventh Patents.
The summary of the invention states it to enable both the tethering means of a child safety seat and a child safety harness to be secured with respect to a single anchorage point in a motor vehicle.
The specification states that in one aspect, the invention provides apparatus to secure a child safety seat and a child safety harness to a single anchorage point in a motor vehicle comprising a connection means arrangement adapted to cooperate with a tether strap adapted to tether the child safety seat, wherein the connection means arrangement secures both the tether strap and the child safety harness to the single anchorage point.
The specification then outlines problems associated with child safety seats where the harness attaches to the seat shell, and how the present invention alleviates this.
The specification then repeats the same material as used in the Seventh Patent. Again, in referring back to the Seventh Patent in this way, I do not read or construe the Patents together.
Figures 1 to 9 from the Parent Application specification are annexed to the Eighth Patent. The numbering of the Figures is the same as that given in Annexure ‘B’ to these reasons. The brief description of these Figures is in the same terms as in the Sixth and Seventh Patent. The description of the preferred embodiment of the invention with reference to the Figures is materially the same as that in the Sixth and Seventh Patents.
The invention ends in five claims. All five are in issue and are outlined below. Claim 1 corresponds with the consistory clause in the summary of the invention. Claims 2, 3, 4 and 5 all make specific reference to the drawings in the annexed figures.
The Ninth Patent – “A connector for securing a tether strap of a child safety seat”
The field of the invention is stated to relate to child safety seats and in particular to connectors to secure tether straps and harnesses used with child safety seats.
The background of the invention is substantially the same as that in the Parent Application specification.
The summary of the invention states that the invention provides a connector to secure a tether strap of a child safety seat to an anchor point of a motor vehicle and to attach to the connector a child safety harness adapted to be used with the child safety seat, the connector comprising: a body; a connection means at one end of the body to attach the connector to said anchorage point of the motor vehicle; a first aperture in the body through which said tether strap locates; and a second aperture in the body to receive an attachment means of the child safety harness.
The specification outlines the problems with “current arrangements” for child safety seats. Namely, they rely on the mechanical integrity of the seat shell in the event of a collision. This disadvantage is alleviated when the harness can be secured independently of the seat shell via the connector.
The Ninth Patent describes the invention in considerably different terms to the Parent Application specification.
The tether strap for the child safety seat is secured to the seat shell and preferably comprises a strap connected at each side of the backrest of the child safety seat. The tether strap locates through the first aperture of the connector and the connector is then attached to the vehicle anchorage point via the connection means which preferably comprises a hook with a latch member.
The harness for securing an infant is described in similar terms to the Parent Application: it comprises a pair of shoulder straps which can be secured at the lower end by the motor vehicle seat belt. The lower end of the harness may have loops through which the vehicle seat belt locates.
The part of the harness which extends over the infant’s shoulders and behind the child safety seat is preferably provided with a hook means attached to the harness which itself then attaches to the second aperture of the connector. This thereby secures the harness independently of the child safety seat and instead secures it at either end with respect to the motor vehicle.
It is preferable that the harness comprises a single length of strap which loops behind the safety seat through a pair of apertures in the backrest portion of the seat and each end has loops through which the vehicle seat belt locates.
The connector is then described in more detail. The specification states that the edge of the second aperture in the connector may have an indentation within which the hook means of the tether strap is received. It is preferable that the indentation is located over the longitudinal centre line of the connector so that, when the harness is placed in tension, the hook means of the harness is retained in a centrally located position within the second aperture. This ensures that the hook means of the harness is therefore aligned with the longitudinal centre line of the connector. This, in turn, prevents the hook means of the harness locating in one side of the second aperture therefore applying an asymmetric load to the connection means of the connector.
It is preferable that the body of the connector comprises a plate of metal with the first aperture being located between the connection means and the second aperture. Preferably, the second aperture comprises an aperture having a rectilinear out line, with the indentation located in the edge of the aperture furthest from the connection means.
Five figures are annexed to the Ninth Patent. The specification gives a brief description of the annexed figures. Figures 1, 3, 5, 6 and 7 from the Parent Application are annexed. They are, however, labelled according to different numbers. Figures 3, 5, 6 and 7 (re-labelled as Figures 2, 3, 4 and 5 respectively in the Ninth Patent) contain some new numbers and features. Figure 4 (Figure 6 in the Parent Application) is a view of the connector attached to a vehicle anchorage bracket and having attached thereto a tether strap and a harness. Figure 5 (Figure 7 in the Parent Application) is said to be a second preferred embodiment of a connector having a single tether strap attached thereto. It is convenient to annex to this judgment as Annexure ‘C’ all the figures in the Ninth Patent.
The specification then gives a description of the preferred embodiment of the invention with reference to the annexed figures. The description of Figure 1 is largely the same as that in the Parent Application. The only difference is that the harness is described as having two shoulder straps “fanned from a length of strap”.
Figure 2 (Figure 3 in the Parent Application) is described in similar terms to those used in relation to Figure 3 in the First through to the Fifth Patents. It is not substantially different from the description in the Parent Application. Figure 3 (Figure 5 in the Parent Application) is likewise described in similar terms.
Figure 4 (Figure 6 in the Parent Application) shows in greater detail the connector (43) which comprises a pressed metal plate. Formed at one end of the connector is the connection means which comprises a hook (50). The hook locates in the aperture or a vehicle anchorage bracket (51) and has a sprung latching member (52) that closes the hook so as to prevent accidental unhooking from the vehicle anchorage bracket.
The connector (43) has a first aperture (54) which comprises an elongate slot. The tether strap (40) locates through the first aperture. The connector also has a second aperture which comprises the rectangular opening (56). The latching hook connector (26) of the harness (20) is attached to the connector plate (43) by locating in the rectangular opening (56).
The edge of the rectangular opening (56) furthest from the hook (50) has an indentation (57) within which the latching hook connector (26) locates. The indentation is placed generally over the longitudinal centre line of the connector (43) and has a width which is equal to the width of the latching hook connector which locates therein so as to prevent lateral movement of the latching hook connector within the opening (56). This ensures that the latching hook connector (26) is held on the longitudinal centre line of the connector (43) to prevent asymmetric loads being applied to the connector (43) as might be the case if the latching hook connector were to lodge in one or other of the ends of the opening (56). If this were to occur, then the hook (50) would not remain square to the aperture within which it locates in the vehicle anchorage bracket. Accordingly, when tension is applied to the harness (20), the latching hook connector (26) and connector (44) are thereby kept inline.
Figure 5 (Figure 7 in the Parent Application) shows a second embodiment in the arrangement shown in Figure 4 (Figure 6 in the Parent Application) and incorporates all of the features shown in Figure 4 except that the tether strap (40) is a single length of strap which is attached to the connector (43) by a loop (59) which locates through both the first and second apertures (54 and 56).
The specification then ends in five claims. Claims 1, 2 and 5 are in issue and are outlined below. Claim 1 corresponds with the consistory clause given in the summary of the invention.
The Tenth Patent – “Safety seat tether strap”
The Tenth Patent does not have its genesis in the Parent Application. As stated, a provisional application no. PM7154 was filed on 1 August 1994. A complete specification was filed on 28 July 1995.
The invention is stated to relate to a safety seat tether strap, and in particular to a tether strap suitable for use with a safety seat that can be used in either a forward or rearward facing position in a vehicle.
The specification describes then common child safety seats. Two types were common: a rear facing seat in which the infant’s back faces the direction of travel; or a forward facing seat. Both arrangements make use of a tether strap extending from the head end of the seat to an attachment point that is fixed with respect to the vehicle. In rear facing seats, it is normal for a pair of straps to extend from either side of the head end to the rear connection point. In a front facing seat, it is normal for a single strap to be used, extending from the head end of the seat.
The specification then describes difficulties with single straps. A number of components comprise a single strap, which often means the length of the strap is too long for use with the most convenient attachment point in the vehicle.
The specification notes that “dual purpose” seats were then becoming common. In these arrangements, it was common for a single support seat to be adapted for use in both rear and forward facing modes. Most such seats make use of two tether straps, one for when the seat is in a rear facing mode, and one for when the seat is in a forward facing mode. The specification states that this adds “unnecessary added cost” and means there is the possibility of incorrect installation if the wrong tether is used.
The specification states that it is an object of the invention to overcome these problems. The invention provides for a single tether strap which can be used with seats either in rear or forward facing mode. The invention also allows for minimum distance between the rear of the seat and the attachment point on the vehicle.
The specification gives the invention in its broadest form. This corresponds with Claim 1. It is a safety seat, for use in a vehicle, comprising a seat portion, having a head end remote from the seat portion, first and second mutually spaced anchorage locations on the head end of said backrest, a connector for engagement with a securement point on the vehicle, the connector having a strap opening, a tether strap extending in a loop from the first anchorage location, through the said strap opening, to the said second anchorage location, and adjustment means for adjusting the length of the said loop.
The tether strap can either extend away from the rear portion of the backrest of the seat, or may extend away from the forward surface of the rear portion of the seat as would be the case in a rear facing seat.
The adjustment means may comprise either a cam-type strap clamp, or may comprise a three bar slide. The length adjuster may also comprise an in-line length adjuster located on a portion of the tether strap. The use of such adjustment means will allow the length of the tether strap to be reduced so that there is a very short distance between the hook and the rear of the safety seat.
The tether strap may be attached to side walls of the safety seat, or the tether strap may extend across the backrest through apertures in the side walls of the safety seat. In addition, metal brackets may be attached to the backrest or the side walls of the safety seat with the tether strap being attached to the brackets. The metal brackets may have slots or apertures through which the tether strap may locate.
The invention then gives the preferred embodiment of the invention by reference to 11 figures. These figures have been annexed to this judgment as Annexure ‘D’. Figure 1 shows a side view of a safety seat on a vehicle seat in a forward facing position. Figure 2 shows a side view of a safety seat on a vehicle seat in a rearward facing position. Figure 3 shows a cross-section of a safety seat as shown in Figure 1. Figure 4 shows a part perspective view of the head end of a safety seat with attached tether strap. Figure 5 shows a cross-sectional view of a safety seat as shown in Figure 4. Figures 6 to 11 show a cross-sectional view of a safety seat with alternative configurations for the tether strap and adjustment means. The figures display numbers which are used in the specification to assist with the description of the various integers of the invention.
The specification then outlines the key features of various embodiments. All comprise a tether strap (11), a connector (12) and an adjustment means (13 or 13a). Apertures (15 and 15a) are formed in the side walls (16 and 16a) of a safety seat (10). The safety seat (10) is held to the vehicle seat (8) by the vehicle seat belts (9).
The term “waist” is then to be construed in the context of the invention as described. The ordinary meaning of the word “waist” does not equate to a “lap”. However, in the context of the claim, I consider that the term “waist” is to be understood to mean, and would be understood to mean by the skilled addressee, the area generally around the waist (as strictly defined) and the lap.
Issue 10: head end of the back rest portion
There is no special industry or technical meaning for the term “head end of the back rest portion”. Both parties sought to proffer different meanings. Infa, through Mr Newman, contended that “head end of the back rest” suggests that it is the upper end of the most vertical part of the back rest portion of the child restraint. Mr Newman would not define this feature by reference to a child. For instance, where a car seat has an adjustable head rest, the head end of the back rest was the upper part of the back rest which is situated immediately underneath the adjustable head rest. Whilst not explicitly mentioned by Mr Newman, it seemed that he, and Infa, sought to distinguish between a back rest portion and a head rest. Mr Hunter, on the other hand, viewed the head end of the back rest by reference to the child sitting in the seat. Mr Hunter believed the head end of the back rest portion to encompass the back part of the seat (that is, the part which makes contact with the vehicle seat itself) where the child’s head would be. This could be the area from the bottom of the chin of the smallest child to the top of the head of the tallest child that might sit in the seat.
I do not accept Mr Hunter’s approach. I consider that one should consider the term “head end” by reference to the seat construction, not the child. Common sense indicates that a back rest and a head rest form two distinct parts of the child restraint. The words “head rest” are not used by the patentee in this context. However, there is no doubt that a head rest portion would refer to the upper portion of the child restraint and would generally include the vertical zone of height from the bottom of the chin of the smallest child to the top of the head of the tallest. The question is whether the head rest, and what is referred to as the upper end of the back rest, are indeed one and the same thing. The answer, I believe, depends on whether the child restraint has an adjustable head rest section. Where it does, the head end of the back rest portion will be, as Mr Newman contended, the upper part of the back rest underneath the head rest. Where there is no adjustable head rest section, I consider that the term “head end of the back rest portion” simply refers to the upper part of the back rest.
Issues 11 and 12: harness and pair of shoulder straps
It became apparent that there was no dispute between the experts as to the construction of the term “harness” – namely a device comprised primarily of flexible webbing used to restrain a child with respect to the seat. A harness may be integral with, or independent of (as in the case of an external harness), the seat shell. Similarly there was no dispute as to construction of the term “pair of shoulder straps” when a harness is in place for the occupant of a child safety seat. Both experts agree, as do I, that a “pair” is two of the same thing, here being two shoulder straps. Further, it seemed to be accepted by Infa that there was infringement as regards the term “harness”.
The Second Patent
The construction issues in the Second Patent relate to the meaning of the following terms within the patent’s claims in suit:
·Issue 1: tether strap;
·Issue 3: secured;
·Issue 5b: connection strap;
·Issue 10: head end of the back rest portion; and
·Issue 11: harness.
I deal with the construction of each Issue in turn below.
Issue 1: tether strap
For the Second Patent I adopt the same construction of the term “tether strap” as I have for the First Patent – tether strap does not include the latching hook or any other connector. It could be argued that in the Second Patent the term “tether strap” is more likely to include the latching hook. The phrase “…attached to and extending from the tether strap latching hook” appears in claim 3 at integer 2.3.4 and is also adopted in the patent specification at page 3, line 29. I do not accept, however, that the use of this terminology creates a construction which sees the latching hook and the tether strap as one and the same item. This language merely refers to the latching hook as being attached to the tether strap, which exists as a separate item and does not include the latching hook. In the Second Patent, as with the First Patent, the tether strap is the material of the strap and nothing more.
Issue 3: secured
The term “secured” is used in both the claims and the specification of the Second Patent in much the same way as it is in the First Patent. I adopt the meaning given to the term therein as applying to the Second Patent.
Issue 5b: connection strap
The term “connection strap” is used in both the claims and the specification of the Second Patent in much the same way as it is in the First Patent. As such, I see no reason to move from the construction of the term as set out above in the First Patent and I adopt the meaning given to the term therein as applying to the Second Patent. I add, as I have done above in relation to the term “tether strap”, that the use of the phrase “…a connection strap attached to and extending from the tether strap latching hook” at page 3, line 29 of the Second Patent specification does not alter my view that the connection strap does not include the connecting item (such as a buckle or latching hook).
Issue 10: head end of the back rest portion
The term “head end of the back rest portion” is used in the same manner in the specification and claims of the Second Patent as it is in the First Patent. Accordingly, I adopt the construction of the term set out above in the First Patent. To reiterate, the meaning of the term “head end of the back rest portion” depends on whether the child restraint has an adjustable head restraint section. Where it does, the head end of the back rest portion will be, as Mr Newman contended, the upper part of the back rest underneath the head rest. Where there is no adjustable head rest section, I consider that the term “head end of the back rest portion” to refer to the upper part of the back rest which inevitably includes the back of the head rest.
Issue 11: harness
There was, in the end, across all patents, no dispute between the parties as to the construction of the term “harness” – namely a device comprised primarily of flexible webbing used to restrain a child with respect to the seat. A harness may be integral with, or independent of (as in the case of an external harness), the safety seat shell.
The Third Patent
The construction issues in the Third Patent relate to the meaning of the following terms within the patent’s claims in suit:
·Issue 1: tether strap;
·Issue 2: ends secured;
·Issue 3: secured;
·Issue 4b: point intermediate its ends;
·Issue 7: connection means;
·Issue 9: waist; and
·Issue 10: head end of the back rest portion.
I deal with the construction of each Issue in turn below.
Issue 1: tether strap
I adopt the construction of the term “tether strap” preferred in the previous patents as applying to the Third Patent. I do so having considered the use of the phrase “a tether strap… further comprising a latching hook connector” in integers 3.3.1 and 3.3.2 and having considered Figure 1 annexed to the Third Patent (reproduced in annexure ‘A’ to these reasons), which illustrates, at 26, a latching hook connector slideably located on the tether strap. It is my view that despite these subtle departures from the First Patent, as a matter of common sense, a tether strap does not include the means by which it connects to the other apparatus (that is, the latching hook). I am also comforted by the use of the term “strap” in claim 3 of the Third Patent, which undoubtedly refers to the tether strap (and the strap only) and in so doing suggests that the latching hook and the tether strap are mutually exclusive components. In my view, the words “further comprising” in claim 3 can be readily interpreted to mean “in addition, involving…”. This also suggests that the latching hook is something which is in addition to, and, therefore, separate to, the tether strap. I have reproduced claim 3 below to highlight the precise use of the words.
A tether strap according to claim 1 further comprising a latching hook connector that is attached with respect to the strap by a strap opening in the latching hook connector that allows the latching hook connector to slidably locate on the strap, the connection means being attached to the latching hook connector.
Issue 2: ends secured; and Issue 3: secured
I adopt the construction of the terms “ends secured” and “secured” preferred in the previous patents as applying to the Third Patent. To reiterate, I understand “ends” to mean the physical end or termination points of the tether strap, rather than the load bearing points of the tether strap. As for the term “secured”, this refers to the ends of the tether strap being firmly fastened with respect to the child safety seat (at the head end of the back rest portion) and with respect to the vehicle anchorage point. How that fastening is achieved, or whether that fastening is slideable, is of no consequence to construction of the term as long as the fastening is firm, that is, it will not tear or break when used for the purpose for which it was developed. Having said that, I do accept that as a matter of practicality, it is unlikely that a slideable connection would be used to secure the tether strap to the vehicle anchorage point.
Issue 4b: point intermediate its ends
I accept and adopt the construction of the term “point intermediate its ends” preferred in the First Patent as applying to the Third Patent.
Issue 7: connection means
The term “connection means” led to some confusion as to how it is presented in the Third Patent. I have reproduced below the integers in which the term appears.
Integers 3.1.5, 3.1.6 and 3.1.7:
…a connection means carried by or with respect to the tether strap, the connection means extending away from the tether strap towards the child safety seat and having an aperture at an end spaced from the tether strap for attachment of the harness.
Integer 3.2.2:
…wherein the connection means is attached to the strap adjacent the intermediate point.
Integer 3.3.4:
… the connection means being attached to the latching hook connector.
Integer 3.4.2:
…wherein the connection means is attached at a first end of the connection means to the strap opening of the latching hook connector.
Integers 3.5.10 and 3.5.11:
… a connection means carried by or with respect to the tether strap, the connection means extending away from the tether strap towards the child safety seat and having an aperture at an end spaced from the tether strap for attachment of the harness.
Infa argued that Britax’s interpretation of “connection means” leads to inconsistencies across the patents — in the Third Patent Britax’s interpretation of “connection means” refers to a latching hook connector, a connection strap or plate, and/or a buckle, depending on which claim and which part of the specification one is reading. According to Infa, this is in contrast to the First Patent, for instance, where the connection means refers only to the buckle, or plate end. Britax, through Mr Hunter, accepted and endorsed that the term “connection means” should be broadly interpreted and applied, and that it can refer to any item or thing which will perform the function of connection. I agree with Britax’s contention.
Accordingly, for the Third Patent, I accept Mr Hunter’s conclusion that “connection means” should be construed to include, at various times, the latching hook, the connection strap or plate, and the buckle. This is so whether the connection means refers to that connecting the tether strap and harness to the anchorage point, or that connecting the tether strap to the child safety seat. This approach to the construction of this term is reflected across the other patents.
Issue 9: waist
I adopt the construction of the term “waist” preferred in the First Patent as applying to the Third Patent.
Issue 10: head end of the back rest portion
I adopt the construction of the term “head end of the back rest portion” preferred in the First and Second Patents as applying to the Third Patent.
The Fourth Patent
The construction issues in the Fourth Patent relate to the meaning of the following terms within the patent’s claims in suit:
·Issue 1: tether strap;
·Issue 3: secured;
·Issue 7: connection means;
·Issue 9: waist;
·Issue 10: head end of the back rest portion; and
·Issue 11: harness.
I deal with the construction of each Issue in turn below.
Issue 1: tether strap
I adopt the construction of the term “tether strap” preferred in the previous patents as applying to the Fourth Patent. I do so having considered the use of the phrase “… wherein the tether strap has connected to it a latching hook which attaches to the said anchorage point” in integer 4.3.2. I believe that this further suggests that the latching hook and the tether strap are two distinct items. I rehearse what I have outlined above, that a common sense construction of the term “tether strap” cannot include the latching hook and refers to the strap, or the woven flexible webbing material only. I refer to the specification to the Fourth Patent (see page 3, lines 26-30) in support of this:
… in some embodiments, the tether strap may include a connecting component to connect to the vehicle anchorage, which is further provided with an aperture to receive the harness latching hook connector. The connecting component which is connected to the vehicle anchorage could then be shared by both the tether strap and the harness.
I do not accept that the use of “include” in line 26 refers to the latching hook as being a necessary part of the tether strap, and therefore a part of the construction of that term. The “connecting component”, the latching hook, remains a separate component to the tether strap. It is my view that the latching hook is “included” “along with”, or “in addition to” the tether strap, and not “included” “within” or “as part of” the tether strap.
Issue 3: secured
I see nothing in the claims or the specification of the Fourth Patent which would lead me to form a different conclusion as to construction of the term “secured” to the conclusion reached with regard to the first three patents. As such, I refer to and repeat my findings on the construction of that term as set out above, referring also to the added fact that as a matter of practicality, it is unlikely that a slideable connection would be used to secure the tether strap to the vehicle anchorage point.
Issue 7: connection means
Mr Hunter and Mr Newman were in agreement as to construction of the term “connection means” as it appears in integer 4.3.4 of the Fourth Patent. Both experts understood “connection means” to be a means for the purpose of connecting the harness shoulder straps to the tether strap and ultimately to the anchorage point on the motor vehicle. I believe that the broad interpretation of “connection means” is to be preferred for the Fourth Patent, so as to include any item or thing which will perform the function of connection. Indeed, this interpretation supports the agreement reached between the parties for the term’s application in the Fourth Patent.
Issue 9: waist; Issue 10: head end of the back rest portion; and Issue 11: harness
I see nothing in the claims or the specification of the Fourth Patent which would lead me to form a different conclusion on the construction of these terms than as in the first three patents. Accordingly I adopt the construction of these terms preferred in the previous three patents and apply them to the Fourth Patent.
The Fifth Patent
The construction issues in the Fifth Patent relate to the meaning of the following terms within the patent’s claims in suit:
·Issue 1: tether strap;
·Issue 3: secured;
·Issue 7: connection means; and
·Issue 10: head end of the back rest portion.
I deal with the construction of each Issue in turn below.
Issue 1: tether strap; Issue 3: secured; Issue 10: head end of the back rest portion
I see nothing in the claims or the specification of the Fifth Patent which would lead me to form a different conclusion on the construction of these terms than as in the first four patents. Accordingly, I adopt the construction of these terms preferred in the previous four patents and apply them to the Fifth Patent.
Issue 7: connection means
As regards construction of the term “connection means” in the Fifth Patent, the term is mentioned in the following integers:
Integers 5.1.7, 5.1.8 and 5.1.9:
… a connection means carried by the tether strap by a first aperture securable at a first end to the anchorage point and including at an opposed end a second aperture.
Integer 5.2.2:
… wherein the connection means slidably locates on the tether strap.
Integer 5.3.2
… wherein the connection means further includes at the first end a latching hook connector for securing the tether strap to the anchorage point.
In analysing integer 5.1.7 and following, Mr Newman admitted to being confused as to whether the latching hook connector became part of the tether strap or whether it was part of the connection means. In Mr Newman’s estimation, judging from Figure 6 of the specification, and the specification itself, the tether strap includes a latching hook connector, and the connection means (which is essentially the connection strap) shares the latching hook with the tether strap. The connection means is, as a result, “securable at a first end”, via the latching hook, “to the anchorage point”. Whilst as a matter of practice the end result may be the same, the latching hook, by virtue of its role as a “connector”, is a component to the connection means and not a component to the tether strap. The latching hook is both securable to the anchorage point as part of the connection means and is also connected to the tether strap.
Mr Newman believed, in the alternative, that if the connection means is only the connection strap, and it is carried by the latching hook (as part of the tether strap), then the connection means is indirectly securable at a first end to the anchorage point via the loop made between the connection strap and the latching hook.
Mr Hunter’s interpretation, as read from the joint expert report, seemed to differ little from that of Mr Newman. Mr Hunter contended that in this patent the connection means (which could be a unitary component or a plurality of components) could be any item or thing which allows interconnection of the harness and the tether strap to the vehicle anchorage point.
Both interpretations accord with my broadly stated construction of “connection means” as set out above. This construction bears as much relevance to the Fifth Patent as to the previous four. Accordingly I adopt that construction for the Fifth Patent in relation to integer 5.1.7 and following. The connection means includes the latching hook, which is not a part of the tether strap. This analysis can then be applied to the experts’ arguments as regards integers 5.2.2 and 5.3.2. Mr Hunter agreed that “there is only one latching hook which is common to both the tether strap and the connection means”, whilst Mr Newman accepted that in these claims, the connection means includes the latching hook. Mr Newman struggled to reconcile this position with his interpretation of “tether strap” as including the latching hook. Such reconciliation is not required when one is of the view, as I am, that the tether strap does not include the latching hook. Again, “connection means” is to be construed as being any item or thing that will perform the function of connection.
The Sixth Patent
The construction issues in the Sixth Patent relate to the meaning of the following terms within the patent’s claims in suit:
·Issue 1: tether strap/strap for tethering;
·Issue 3: secured/securable;
·Issue 5a: strap;
·Issue 6: carried by;
·Issue 7: connection means; and
·Issue 13: means for tethering/tethering means.
I deal with the construction of each Issue in turn below.
Issue 1: tether strap/strap for tethering
Firstly, I proceed on the basis that the term “tether strap” and the term “strap for tethering”, as it appears in integer 6.1.3 (and presumably the term “tethering means in the form of a strap” – once the construction of the term “tethering means” is resolved) are substitutable terms. That is not to say that the term “tethering means”, in itself is substitutable with the term “tether strap”. I would conclude, in fact, that it is not. Having said that, it is my conclusion that there is nothing in the claims, or in the specification of the Sixth Patent, which would lead me to form a different conclusion as to construction of these terms to the conclusions reached with regard to the construction in the first five patents. To illustrate, I refer to page 3, line 6 of the specification:
… a tether strap for tethering a child safety seat to a vehicle, wherein the tether strap incorporates means for connecting both the tether strap and a child safety harness used with the safety seat to an anchorage point in the vehicle.
I reiterate then for the Sixth Patent, as I have done for the previous five patents, that the tether strap does not include the means for connection (for example, a latching hook).
Issue 3: secured/securable
I consider the term “securable” to mean “able to be secured”. In terms of the Sixth Patent, the claims and specification provide no context to depart from my earlier construction of the term “secured”. The term “secured” refers to the means for tethering (as described in claim 2 and page 3, line 15 of the specification) being firmly fastened both to the vehicle anchorage point at one end, and to the child safety harness at the other. How that fastening is achieved, or whether that fastening is slideable or fixed, is of no consequence to the construction of the term as long as the fastening is firm, so it will not tear or break when used for the purpose for which it was developed. The term “securable” merely refers to the particular items in the apparatus capable of achieving the result of fastening.
Issue 5a: strap
The term “strap” has been reviewed in the context of the First Patent, in the section relating to the term “connection strap”. I concluded that the terms were interrelated.
The meaning of words and phrases may subtly change depending on how they are used and how the words and phrases give practical operation to the invention.
I interpret “strap” to have the same meaning in the Sixth Patent as it did in the First Patent. A strap could be a strip of metal. Again, the context in which it is used will indicate whether the strap is metal or a piece of webbing. A connection strap could be made of metal, but a shoulder strap would be a reference to webbing material having regard to the intended use of a should strap.
Issue 6: carried by
Mr Hunter’s position was that “carried by” means any form of connection where moving or rearranging is possible. So, in the Sixth Patent, the first strap would result in the second strap being carried with the first strap. This does not necessarily require the second strap to be fixed to the first. Mr Newman originally contended that the term, in its ordinary meaning, suggests that the second strap rests on, or is transported by, the first strap and that the first strap, therefore, bears the load of the second. At the very least, Mr Newman would say, there must be an interaction between the two components. In respect of a load being carried, which Mr Newman posited is the intention of the invention, fixation is necessary.
As I mentioned earlier, Mr Newman’s position on the term “carried by” became more closely aligned with that of Mr Hunter during oral evidence. Mr Newman agreed that “carried by” did not mean that the straps (in this case the connection strap, as per the First Patent) had to be fixed to a location, but that the two straps had to be in a position so that they could not be separated. Mr Hunter agreed that “carried by” necessarily meant that the carrier bears the load of the thing being carried. In essence, as both experts agreed at the hearing, and I accept, the term “carried by” suggests in the Sixth Patent that the second strap is transported by the first and that the tether strap (the first strap) bears the load of the connection strap (the second strap). The experts also agreed, and I accept, that the term suggests an interaction between the two straps in respect of a load being carried, which is the intention of the tethering invention.
Infa submitted that the term “carried by” indicates that the load is carried directly so the first strap must carry the second strap directly and not in some indirect arrangement where the carrying can only be seen through intermediate components. I agree. Carried “by” is to be contrasted with carried “with”, and carried “with respect to”. The wording in integer 6.1.4 is “a second strap carried by or with respect to the first strap”. The use of the term “or with respect to” must have some work to do, and is not as simple and direct as the term “carried by” on its own. Therefore, “carried by” used on its own is referring to the direct carrying; carried “with respect to” may involve indirect action. As emphasised by the word “by”, the phrase “carried by” requires an active carrier and a passive thing carried.
It was agreed between the parties, and I accept, that “carried by” does not require fixation to a location but does require a level of connection so that the two components are not able to be separated from one another.
Issue 7: connection means
I refer to and adopt my approach to the interpretation of “connection means” as set out for the relevant patents above. In the Sixth Patent, the term “connection means” appears in integers 6.1.5, 6.2.4, 6.3.2 and 6.5.3. Mr Newman pleaded inconsistency between these integers. In 6.1.5, for instance, he considered that the term is being used to refer to a buckle, whereas in 6.2.4 the term could include and involve a second strap. In integer 6.5.3 the term “connection means” includes a latching hook. This is evident when one reviews the figures annexed to the Sixth Patent. Mr Hunter saw no inconsistency so long as the broad interpretation of “connection means” is employed. For reasons expressed above, I agree, and the broad approach is to be favoured.
Issue 13: means for tethering/tethering means.
There was no dispute between the parties as to the construction of this term for the Sixth Patent. The term “tethering means”, or “means for tethering”, suggests any means for tethering a child safety seat to a vehicle and, therefore, would include a tether strap but could also be more than the tether strap. It could, therefore, include the connection means, such as a latching hook. I agree with this construction and note that there was disagreement as to the construction of this term as it appears in the Seventh Patent. This is discussed later in these reasons.
The Seventh Patent
The construction issues in the Seventh Patent relate to the meaning of the following terms within the patent’s claims in suit:
·Issue 3: secured;
·Issue 7: connection means;
·Issue 9: waist;
·Issue 10: head end of the back rest portion;
·Issue 11: harness; and
·Issue 13: tethering means.
I deal with the construction of each Issue in turn below.
Issue 3: secured
I see nothing in the claims or the specification of the Seventh Patent which would lead me to form a conclusion as to the construction of the term “secured” which would be different to the conclusion reached with regard to the previous relevant patents. Accordingly, I adopt the construction of “secured” preferred in the previous relevant patents and apply that construction to the Seventh Patent.
Issue 7: connection means
Similarly, the construction of the term “connection means” in the Seventh Patent is the same as the construction preferred for that term in the Sixth Patent and earlier patents.
Issue 9: waist; Issue 10: head end of the back rest portion; and Issue 11: harness
There are no clear points of difference in the claims or the specification of the Seventh Patent which would lead me to form a different conclusion as to the construction of these terms than the conclusion I reached in relation to the earlier relevant patents. Accordingly, I adopt the construction of these terms earlier preferred.
Issue 13: tethering means
Whilst both experts agreed as to the construction of this term as it applied to the Sixth Patent (that is, it could include a latching hook with the tether strap), Mr Hunter and Mr Newman were in dispute as to the term’s construction in the Seventh Patent. Mr Newman read the term “tethering means” in a like manner for the Sixth and Seventh Patents and would include a tether strap and a latching hook in a tethering means. By contrast, Mr Hunter argued that the specification for the Seventh Patent defined the expression “tethering means” as not including a latching hook or similar because the definition of “tethering means” in this instance is the tether strap. The term is said to be defined in the specification at page 3, line 30:
Preferably, the tethering means is in the form of a tether strap…
However, this is only a preferred embodiment. Whilst in the Seventh Patent the specification specifically directs attention to the tethering means being the tether strap, it assumes there may be other means of tethering. I see no reason not to apply the same meaning to “tethering means” as I have done previously.
The Eighth Patent
The only construction issue arising out of the Eighth Patent was the construction of the term “tether strap”. The term appears twice in the claims in issue in the Eighth Patent, at integers 8.1.2 and 8.1.3. There are no clear points of difference in the claims or the specification of the Eighth Patent which would lead me to form a different conclusion on construction. Accordingly, I accept and adopt the construction of “tether strap” as preferred in the earlier relevant patents and apply it to the Eighth Patent.
The Ninth Patent
The construction issues in the Ninth Patent relate to the meaning of the following terms within the patent’s claims in suit:
·Issue 1: tether strap;
·Issue 7: connection means; and
·Issue 11: harness.
I deal with the construction of each Issue in turn below.
Issue 1: tether strap
I see nothing in the claims or the specification of the Ninth Patent which would lead me to form a conclusion as to construction of the term “tether strap” which would be different to the conclusion reached with regards to the previous relevant patents. Accordingly, I adopt the construction of “tether strap” preferred in the previous relevant patents and apply that construction to the Ninth Patent.
Issue 7: connection means
I adopt the construction of the term “connection means” as found in earlier relevant patents and apply it to the Ninth Patent. Given the breadth of the definition I have given to this term there is no requirement for altering my conclusion as regards the Ninth Patent merely because the context differs slightly from earlier patents. In the Ninth Patent, the “connection means” is referred to as the “connector”, being a pressed metal plate with two apertures (see page 6, line 22 of the specification).
Issue 11: harness
I adopt the construction of the term “harness” as found in earlier relevant patents and apply it to the Ninth Patent. To reiterate, a harness is a device comprised primarily of flexible webbing used to restrain a child with respect to the seat. A harness may be integral to, or independent of (as in the case of an external harness), the safety seat shell.
The Tenth Patent
The construction issues in the Tenth Patent relate to the meaning of the following terms within the patent’s claims in suit:
·Issue 1: tether strap;
·Issue 10: back rest having a head end; and
·Issue 14: first and second mutually spaced anchorage locations.
I deal with the construction of each Issue in turn below.
Issue 1: tether strap
I adopt my construction of the term “tether strap” as it applies to earlier relevant patents and apply it in the context of the Tenth Patent.
Issue 10: back rest having a head end
This term differs slightly from “head end of the back rest portion”, which was discussed in relation to the First Patent, along with others, earlier in these reasons. There is no special industry or technical meaning for either term. Both parties sought to proffer different meanings, which I have discussed in relation to the First Patent.
I adopt the same construction of the term as I have applied in respect of “head end of the back rest portion” in earlier relevant patents and apply it in the context of the Tenth Patent.
Integer 10.1.3 in the Tenth Patent refers to “a back rest having a head end remote from said seat portion”. It may be said that the reference to “back rest having a head end”, more clearly indicates the separation of a back rest and “head” rest. I do not believe that the “remoteness” referred to in the claim changes my construction of this term. The upper part of the back rest, whether it is the head end being a head rest (for a non-adjustable seat) or the head end of the back rest (in terms of an adjustable seat) will inevitably be a component of the child safety seat which is remote from the seat portion.
Issue 14: first and second mutually spaced anchorage locations
First, I accept that “anchorage”, in the sense of an “anchorage location”, is not dependent on the tether strap being under tension (in an accident). An anchorage location is a dedicated place. In this case it is a place on the head end of the back rest, where anchorage occurs or can occur. It is a point where the tether strap, which, via the connection strap and connection means (or whatever other apparatus), is anchored to the vehicle at the vehicle anchorage point.
As accepted by the parties, and as expressed by Mr Hunter, generally the term “anchorage location” is a location or position at which there is a contrivance (that is, a design feature) which holds fast, or gives security to, the seat and occupant in the event of sudden movement or deceleration. These locations remain anchorage locations even when not in use.
Looking at the constituent parts of the term, both experts agreed on the construction of the term “mutually spaced”. That is, the two locations being the “first and second locations”, are spaced apart from a vertical centre line on the back rest portion. I accept this meaning, adding only for clarity that the centre line will be equidistant the first and second anchorage locations. As to “first and second”, I agree with Britax that this construction of the term does not change when there are further anchorage locations (as argued by Infa). “First and second” merely describes what could be the first two anchorage locations.
FURTHER MATTER
Another matter is raised for consideration in relation to construction. This relates to other material sought to be relied upon by Britax in aid of its submissions on construction.
In written submissions dated 11 March 2011 entitled “Britax submissions relating to s 28 material by Infa in relation to patents in suit”, Britax sought to rely on material Infa had earlier provided to the examiner as delegate of the Commissioner of Patents during the examination prior to certification of the Third, Fourth and Fifth Patents. Britax’s submissions sought to rely on correspondence, passing between the examiner and Infa’s patent attorney, Mr Doherty, as well as supporting statutory declarations, which were copied to Britax’s patent attorney in 2008.
Infa submitted that all of Britax’s submissions, and the accompanying material attached to them, should not be entertained by the Court.
Britax’s submissions argued that Infa made submissions before the Patent Office which are different and inconsistent to those it makes before the Court. Therefore, Britax submitted that the Court should treat Infa’s position before the Court to the extent it is inconsistent with Infa’s communications to the examiner as of little weight.
Under s 28 of the Act, a person may notify the Commissioner of reasons why an invention described in an innovation patent lacks novelty or an innovative step within a limited time after grant and before certification. There is also a limit on the type of material that can be submitted under s 28. Further, notification of reasons for invalidity can only be in respect of novelty and inventive step, not s 40 issues such as clarity and fair basis. For this reason, the material provided to the Patent Office by Infa pursuant to s 28 (commonly referred to as a “s 28 notice”) in effect assumes that all other terms and issues in the claim are valid. Further, once a s 28 notice has been submitted, there is no further opportunity for the writer to correspond further with the examiner and Patent Office. The procedure involving a s 28 notice is not equivalent to opposition proceedings.
The patentee, however, is informed that a s 28 notice has been submitted to the Patent Office, and is able to correspond with the examiner and argue its case, and also to make amendments to the patent under examination. In the present case, Britax corresponded and made amendments seeking to overcome objection. Infa was not party to any of this correspondence and was not given any opportunity to make submissions. Further, the extent to which the examiner considered the material now sought to be relied upon by Britax must remain a matter of speculation.
The attached material to the submissions sought to be relied on by Britax is not evidence in this proceeding. The fact that such material was placed before the examiner does not confer on it the status of evidence in this proceeding. It must be relevant and then be admitted into evidence in this proceeding.
I do not propose to allow the submissions or attached material to be part of my consideration. It is not evidence in this proceeding, and there is no proper basis upon which it could become evidence introduced before me, as it was, after the hearing of Britax’s case.
In any event, I do not regard the s 28 material as either amounting to admissions against Infa (informal at best), as relevantly detracting from Infa’s arguments, or as demonstrating anything but the views of the Patent Office in the limited context in which these views may be discerned.
Relevantly to construction, the Court itself needs to decide the construction issues, and the parties have provided extensive evidence on these construction issues without recourse to the additional submissions and attached material sought to be relied upon by Britax.
CONCLUSION
I propose to allow the parties to consider these reasons, and then return to the Court for directions as to the further conduct of this proceeding.
I certify that the preceding four hundred and thirteen (413) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton. Associate:
Dated: 9 May 2012
ANNEXURE ‘A’
ANNEXURE ‘B’
ANNEXURE ‘C’
ANNEXURE ‘D’
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