Brown & Watson International P/L v The NOCO Company
[2022] APO 45
•4 July 2022
IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Brown & Watson International P/L v The NOCO Company [2022] APO 45
Patent Applications: 2019201559 & 2020201223
Title:Portable vehicle battery jump start apparatus with safety protection
Patent Applicant: The NOCO Company
Opponent: Brown & Watson International P/L
Delegate: S. E. Howard
Decision Date: 4 July 2022
Hearing Date: 21st-22nd April 2022, video conference
Catchwords: PATENTS – opposition to the grant of patent – s 59 – utility – clear enough and complete enough disclosure – clarity – clear claims – lack of support – priority date of the claims – novelty – implicit disclosure – inventive step – opposition unsuccessful on all grounds
Representation: Counsel for the applicant: Ian Horak
Patent attorney for the applicant: Ray Tettman from Griffith Hack
Counsel for the opponent: Sam Hallahan
Patent attorney for the opponent: Adrian Crooks from Phillips Ormonde Fitzpatrick
IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Patent Applications: 2019201559 & 2020201223
Title:Portable vehicle battery jump start apparatus with safety protection
Patent Applicant: The NOCO Company
Date of Decision: 4 July 2022
DECISION
Under regulation 5.23, for the purposes of deciding the opposition, I will consult the declaration by Cheng (Claire) Wang dated the 17th of August 2021.
The oppositions against applications 2019201559 and 2020201223 are unsuccessful. Subject to appeal, I direct these applications proceed to grant.
In respect of each of the oppositions against applications 2019201559 and 2020201223, costs in accordance with Schedule 8 are awarded against the opponent Brown & Watson International P/L.
REASONS FOR DECISION
BACKGROUND
This matter relates to patent application 2019201559 (AU559) and its divisional application 2020201223 (AU223), filed in the name of The NOCO Company (the Applicant) on the 6th of March 2019 and the 20th of February 2020 respectively. AU559 is a divisional application from 2016269555 (parent application) which is in turn a divisional from 2015258229 (grandparent application) which further claims priority from PCT/US2014/045434 with a priority date of 3rd of July 2014.
Application AU559
Application AU559 was accepted on the 1st of November 2019. On the 21st of February 2020, Brown & Watson International Pty Ltd (the Opponent) filed a notice of opposition to the grant of application AU559 under s59 of the Act (the AU559 opposition).
A Statement of Grounds and Particular was filed on the 21st of May 2020 (AU559 SGP). On the 28th of July 2020, the Opponent filed a request to extend the time to file the Evidence in Support (AU559 EIS) until the 21st of November 2020 under Regulation 5.9(2), the request was allowed on the 30th of July 2020. The Opponent filed the AU559 EIS on the 25th of November. The Applicant filed the Evidence in Answer (AU559 EIA) on the 25th of February 2021. Evidence in Reply (AU559 EIR) was filed on the 29th of April 2021.
The Applicant filed further evidence under Regulation 5.23 on the 27th of May 2021 directed to contradictions in the English translations of CN202696190 filed with the AU559 EIS and the AU559 EIR. This evidence included a declaration from Cheng (Claire) Wang (Wang) dated the 21st of May 2021 with supporting annexure WC-1, a verified English translation prepared by Ms Wang and the original version of CN 202696190 U. On the 30th of June 2021, the parties were advised that the Commissioner would consult these documents under Regulation 5.23.
The Opponent filed further evidence, pursuant to Regulation 5.23(2), on the 30th of July 2021 in response to the evidence filed by the Applicant. This included a declaration from Guangming Lui (Lui) with supporting annexures GL-1 to GL-2 and a declaration from Cory Seligman (Seligman4) dated 25th of June 2021 as filed in the AU223 opposition. The Commissioner wrote to the Opponent on the 4th of August 2021 stating that the Seligman declaration does not fall within Regulation 5.23(2) and that the Commissioner should not have regard to it in deciding the opposition.
On the 18th of August 2021, the Applicant provided a second declaration by Ms Wang (Wang2) dated the 17th of August 2021. The Commissioner responded on the 30th of August 2021, saying there was insufficient reasoning to invoke Regulation 5.23 in relation to Wang2.
Application AU223
Application AU223 was accepted on the 17th of April 2020 after one examination report that outlined a postponement of acceptance as the only outstanding issue. On the 7th of August 2020, the Opponent filed a notice of opposition to the grant of application AU223. A Statement of Grounds and Particular was filed on the 17th of November 2020 (AU223 SGP). Evidence in Support (AU223 EIS) was filed on the 9th of February 2021. Evidence in Answer (AU223 EIA) was filed on the 11th of May 2021. Evidence in Reply (AU223 EIR) was filed on the 13th of July 2021, completing the evidence for the AU223 opposition.
I also note the Applicant filed a s104 voluntary amendment for application AU223 on the 3rd and the 21st of August 2020. An examiner considered the amendments allowable and granted leave to amend, which was advertised on the 8th of October 2020. Additional s104 amendments were filed on the 10th of August 2021, which were considered allowable and advertised as allowable on the 9th of December 2021. These amendments were not opposed and subsequently incorporated into the specification.
Applications AU559 & AU223
The Opponent’s written submissions for AU559 (Opponent’s AU559 written submissions) and AU223 (Opponent’s AU223 written submissions) were filed on the 7th April 2022. The Applicant’s written submissions for AU559 (Applicant’s AU559 written submissions) and AU223 (Applicant’s AU559 written submissions) being filed on the 12th of April 2022 and the 13th of April 2022 respectively. The hearings were via video conference held on the 21st and the 22nd of April 2022.
APPLICABLE LAW
The present applications are governed by the Patents Act 1990 (the Act) as amended by the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 (RTB Act) as the applications were filed after 15 April 2013.
The Opponent has the onus to satisfy me, on a balance of probabilities, that a ground of opposition to the grant exists. Then, once satisfied, I may refuse the application or, where appropriate, give the Applicant a reasonable opportunity to amend the relevant specification to remove any ground of opposition, as per Section 60(3A) & (3B) of the Act.
GROUNDS OF OPPOSITION
For each of the oppositions, the Opponent listed lack of novelty, lack of inventive step, not a manner of manufacture, lack of utility, that the specifications do not comply with s40(2)(a) or s40(2)(aa), lack of clarity and lack of support under s40(3). The Opponent provided particulars against each of these grounds in the respective Statement of Grounds and Particulars.
Notably, the Opponent did not pursue all the grounds set out in the Statement of Grounds and Particulars. In written submissions and at the hearing, the Opponent only pressed the following grounds:
Clarity (s59(c)-s40(3))
Utility (s59(b) – s18(1)(c))
Clear enough and complete enough disclosure (s59(c)-s40(2)(a))
Support for the claims (s59(c)-s40(3))Novelty (s59(b) – s18(1)(b)(i))
Inventive step (s59(b) – s18(1)(b)(ii))
Accordingly, this decision is restricted to the grounds above.
THE EVIDENCE
Application AU559
Evidence in Support
Declaration by Cory Seligman (Seligman1) dated 23rd of November 2020 and annexures CS-1 to CS-6.
Evidence in Answer
Declaration by Jonathan R. Wood (Wood) dated 22nd of February 2021 and annexures JRW-1 to JRW-8.
Declaration by Raymond L.J. Tettman (Tettman) dated 25th of February 2021 and Annexures RLT-1 to RLT-5.
Evidence in Reply
Declaration of Cory Seligman (Seligman2) dated the 27th of April 2021 and annexures CS-7 to CS-8.
Application AU223
Evidence in Support
Declaration by Cory Seligman (Seligman3) dated 9th of February 2021 and Annexures CS-1 to CS-2 (referred to as CS-1b and CS-2b throughout this decision). Seligman3 also refers to Seligman1 and its supporting annexes.
Evidence in Answer
Declaration by Jonathan R. Wood (Wood2) dated 6th of May 2021 and annexures JRW-1 to JRW-7 (referred to as JRW-1b and JRW-7b throughout this decision). Wood2 refers to Wood and its annexures.
Evidence in Reply
Declaration of Cory Seligman (Seligman4) dated the 25th of June 2021 and annexures. Seligman4 refers to Seligman2 and its annexures.
Regulation 5.23
Declaration from Cheng (Claire) Wang (Wang) dated the 21st of May 2021 with supporting annexure WC-1.
Declaration by Guangming Lui (Lui) with supporting annexures GL-1 to GL-2.
SPECIFICATIONS
THE BODY OF THE SPECIFICATION OF AU559
The alleged invention relates to an apparatus for jump-starting a vehicle having a depleted or discharged battery.[1] The specification described various problems with the prior art at [0003]:
“Problems with the prior art arose when either the jumper terminals or clamps of the cables were inadvertently brought into contact with each other while the other ends were connected to a charged battery, or when the positive and negative terminals were connected to the opposite polarity terminals in the vehicle to be jumped, thereby causing a short circuit resulting in sparking and potential damage to batteries and/or bodily injury.”
[1] AU559 at [0001]-[0003] & [0013]-[0014].
The invention seeks to create an apparatus that is cost effective, less complex than prior devices and that will minimise potential for malfunction.[2]
[2] Ibid.
The specification follows with a summary of the invention. This section largely mirrors features of the independent claims and some dependent claims, as will be provided below.
The specification then describes the preferred embodiments with reference to a number of figures. Figure 1, reproduced below, is a functional block diagram of a handheld battery booster according to one aspect of the invention. The booster device includes a lithium polymer battery pack (32) which stores sufficient energy to jump start a vehicle engine served by a conventional 12-volt lead-acid or valve regulated lead-acid battery. The booster device further includes a programmable microcontroller unit (MCU) (1), a car battery reverse sensor (10) that monitors the polarity of a vehicle battery (72) connected to the device and a battery isolation sensor (12) that detects whether or not the vehicle battery (72) is connected to the device. A smart switch FET circuit (15) electrically switches on power supply from the lithium ion battery pack only when the vehicle battery is determined to be present and connected with correct polarity.[3]
[3] AU559 at [0022]-[0025].
Further features of the booster device include a lithium battery voltage measurement circuit (24), back-charge protection diodes (28), flashlight LED circuit (36), voltage regulator (42), on/off manual mode and flashlight switches (46) and operation indicator LEDs (60) which provide visual indication of lithium battery capacity status as well as smart switch activation status. The booster device further comprises a USB charge circuit (52) for charging the lithium battery pack (32) and a USB output (56) which provides portable charging for rechargeable electronic devices.[4]
[4] AU559 at [0025]-[0027].
A detailed operation of the handheld booster device is then described with reference to figures 2A-2C. In essence, the MCU (1) receives inputs from the reverse polarity sensor (10) and the isolation sensor (12) to determine when it is safe to turn on the smart switch FET (15), thereby connecting the lithium battery pack (32) to the jumper terminals of the booster device.[5]
[5] AU559 at [0028]-[0030].
An advantage of the booster device was described at [0029] of the AU559 specification:
“…Consequently, if the car battery 72 is either not connected to the booster device at all, or is connected with reverse polarity, the MCU can keep the smart switch FET 15 from being turned on, thus prevent sparking/short circuiting of the lithium battery pack.”
Features and advantages of the voltage measurement circuitry (24) were discussed at [0031] of AU559 with reference to Figures 2A-1 to 2A-4 as provided in Annexure C:
“Referring back to Fig. 2A, the internal lithium battery pack voltage can be accurately measured using circuit 24 and one of the analog-to-digital inputs of the microcontroller 1. Circuit 24 is designed to sense when the main 3.3V regulator 42 voltage is on, and to turn on transistor 23 when the voltage of regulator 42 is on. When transistor 23 is conducting, it turns on FET 22, thereby providing positive contact (LB+) of the internal lithium battery a conductive path to voltage divider 21 allowing a lower voltage range to be brought to the microcontroller to be read. Using this input, the microcontroller software can determine if the lithium battery voltage is too low during discharge operation or too high during charge operation, and take appropriate action to prevent damage to electronic components.”
Further features and advantages of the alleged invention are described in [0032]-[0035] and [0038] of AU559. In particular, the temperature of the internal lithium battery pack is measured by two negative temperature coefficient devices which allow the MCU to determine when it is too hot to allow jumpstarting, three lithium battery back charge protection diodes are used to allow current to flow only from the internal lithium battery pack to the car battery thereby preventing back-charging, the main power switch allows the booster device to be turned on or off, the microcontroller includes a timer that turns the power off after a predefined period of time if not used, an LED can be controlled for SOS patterns, LED indicators may be provided to indicate remaining capacity of the internal lithium battery or to provide visual warnings to the user when vehicle battery has been connected in reverse polarity, a “Boost” LED provides a visual indication of when the booster device is providing jump-start power and the on/off LEDs indicate whether the booster device is turned on or off. Overcharge or discharge of the internal lithium battery is prevented via use of a lithium battery charge controller that provides charge balance.
The USB output (56) and charge circuit (52) are described at [0036]-[0037] of AU559. The USB output circuit (56) is provided for charging portable electronic devices and the microcontroller (1) is configured to prevent the internal lithium battery (28) from getting too low during use. Additionally, the USB charge circuit (52) allows the internal lithium battery pack (28) to be charged using a standard USB charger. The 5V potential from standard USB chargers is up-converted to the 12.4VDC voltage required using a DC-DC converter (not shown on figure 1). The DC-DC converter can be turned on and off by an output from the microcontroller (1).[6]
[6] See also AU223 [0036]-[0037].
The specification lastly describes the physical features of a handheld device and a jumper cable device of the preferred embodiment at [0039]-[0040] of AU559. The handheld device comprising a power switch, LED indicators, volt output port, USB input port and USB output port. The jumper cable device, designed for use with the handheld device, having a plug configured to plug into the volt output port of the handheld device, a pair of cables integrated with said plugs which are connected to the battery terminal clamps of the car battery (72) via ring terminals. The port and plug may be dimensioned to permit only a specific orientation, thereby ensuring the clamps will correspond to either negative or positive polarity. Lastly, the ring terminals may be disconnected from the clamps and connected directly to the car battery (72) in the event there is a need to permanently attach the cables to the battery of the vehicle.[7]
[7] See also AU223 [0039]-[0040].
THE BODY OF THE SPECIFICATION OF AU223
The AU223 specification, including the description and the figures, is largely the same as the body of the AU559 specification. The ‘SUMMARY OF THE INVENTION’ section in the AU223 specification differs from AU559. This section reflects the independent claims of AU223 as provided below.
CLAIMS OF AU559
There are 30 claims, of which claims 1, 2 and 3 are independent. The claims are directed to an apparatus for jump starting a vehicle having a depleted or discharged vehicle battery and are provided in Annexure A. Independent claims 1, 2 and 3 are reproduced here, including reference numerals for each claimed feature:
Claim 1:
An apparatus for jump starting a vehicle having a depleted or discharged vehicle battery with positive and negative polarity terminals, the device having the following features:
1.1 a power supply;
1.2. a positive polarity vehicle battery terminal connector;
1.3. a negative polarity vehicle battery terminal connector;
1.4. a vehicle battery isolation sensor connected in circuit with the positive and negative polarity vehicle battery terminal connectors, the vehicle battery isolation sensor configured to detect a presence of the vehicle battery when connected between the positive and negative polarity vehicle battery terminal connectors;
1.5. a reverse polarity sensor connected in circuit with the positive and negative polarity vehicle battery terminal connectors, the reverse polarity sensor configured to detect a polarity of the vehicle battery connected between the positive and negative polarity vehicle battery terminal connectors and to provide an output signal indicating that the positive and negative polarity terminals of the vehicle battery are properly connected to the positive and negative polarity vehicle battery connectors;
1.6. a power switch connected between the power supply and the positive and negative polarity vehicle battery terminal connectors; and
1.7. a microcontroller;
1.7.1. configured to receive input signals from the vehicle isolation sensor and the reverse polarity sensor,
1.7.2. the microcontroller is configured to provide an activating output signal to turn on the power switch to cause the power supply to be connected to the positive and negative polarity vehicle battery connectors in response to the microcontroller receiving input signals simultaneously from the sensors indicating both the presence and connection of the vehicle battery to the positive and negative polarity vehicle battery connectors and proper polarity connection of the positive and negative polarity terminals of the vehicle battery with the positive and negative polarity battery terminal connectors, and
1.7.3. the microcontroller is configured to provide a deactivating output signal to turn off the power switch to cause the power supply to be disconnected from the positive and negative polarity vehicle battery connectors in response to the microcontroller receiving input signals from the sensors indicating the absence of the vehicle battery connected to the positive and negative polarity vehicle battery connectors and/or improper polarity connection of the positive and negative polarity terminals of the vehicle battery to the positive and negative polarity vehicle battery connectors.
Claim 2:
An apparatus for jump starting a vehicle having a depleted or discharged vehicle battery with positive and negative polarity terminals, the device having the following features:
2.1 a power supply;
2.2 a positive polarity vehicle battery terminal connector;
2.3 a negative polarity vehicle battery terminal connector;
2.4 a vehicle battery isolation sensor connected in circuit with the positive and negative polarity vehicle battery terminal connectors, the vehicle battery isolation sensor configured to detect a presence of the vehicle battery when connected between the positive and negative polarity vehicle battery terminal connectors;
2.5 a reverse polarity sensor connected in circuit with the positive and negative polarity vehicle battery terminal connectors, the reverse polarity sensor configured to detect a polarity of the vehicle battery connected between the positive and negative polarity vehicle battery terminal connectors and to provide an output signal indicating that the positive and negative polarity terminals of the vehicle battery are properly connected to the positive and negative polarity vehicle battery connectors;
2.6 a power switch connected between the power supply and the positive and negative polarity vehicle battery terminal connectors; and
2.7 a microcontroller;
2.7.1 configured to receive input signals from the vehicle isolation sensor and said reverse polarity sensor,
2.7.2 the microcontroller configured to control operation of the power switch,
2.7.3 wherein the microcontroller is configured to turn on the power switch when receiving input signals from the vehicle isolation sensor and reverse polarity sensor indicating both the presence and connection of the vehicle battery to the positive and negative polarity vehicle battery connectors and proper polarity connection of the positive and negative polarity terminals of the vehicle battery with the positive and negative polarity battery terminal connectors, and
2.7.4 wherein the microcontroller is configured to turn off the power switch when receiving input signals from the sensors indicating the absence of the vehicle battery connected to the positive and negative polarity vehicle battery connectors and/or improper polarity connection of the positive and negative polarity terminals of the vehicle battery to the positive and negative polarity vehicle battery connectors.
Claim 3:
An apparatus for jump starting a vehicle having a depleted or discharged vehicle battery with positive and negative polarity terminals, the device having the following features:
3.1 a power supply;
3.2 a positive polarity vehicle battery terminal connector;
3.3 a negative polarity vehicle battery terminal connector;
3.4 a vehicle battery isolation sensor connected in circuit with the positive and negative polarity vehicle battery terminal connectors, the vehicle battery isolation sensor configured to detect a presence of the vehicle battery when connected between the positive and negative polarity vehicle battery terminal connectors;
3.5 a reverse polarity sensor connected in circuit with the positive and negative polarity vehicle battery terminal connectors, the reverse polarity sensor configured to detect a polarity of the vehicle battery connected between the positive and negative polarity vehicle battery terminal connectors and to provide an output signal indicating that the positive and negative polarity terminals of the vehicle battery are properly connected to the positive and negative polarity vehicle battery connectors;
3.6 a power switch connected between the power supply and the positive and negative polarity vehicle battery terminal connectors; and
3.7 a microcontroller;
3.7.1 configured to receive input signals from the vehicle isolation sensor and the reverse polarity sensor,
3.7.2 the microcontroller is configured to turn on the power switch to cause the power supply to be connected to the positive and negative polarity vehicle battery connectors in response to the microcontroller receiving input signals simultaneously from the sensors indicating both the presence and connection of the vehicle battery to the positive and negative polarity vehicle battery connectors and proper polarity connection of the positive and negative polarity terminals of the vehicle battery with the positive and negative polarity battery terminal connectors, and
3.7.3 the microcontroller is configured to turn off the power switch to cause the power supply to be disconnected from the positive and negative polarity vehicle battery connectors in response to the microcontroller receiving input signals from the sensors indicating the absence of the vehicle battery connected to the positive and negative polarity vehicle battery connectors and/or improper polarity connection of the positive and negative polarity terminals of the vehicle battery to the positive and negative polarity vehicle battery connectors.
CLAIMS OF AU223
There are 21 claims, of which claim 1 and 21 are independent. The claims are directed to a jump starter apparatus for boosting or charging a depleted or discharged battery and are provided in Annexure B. Independent claims 1 and 21 are reproduced here, including reference numerals for each claimed feature:
Claim 1:
1. A jump starter apparatus for boosting or charging a depleted or discharged battery having a positive battery terminal and a negative battery terminal, the apparatus comprising:
1.1a power supply;
1.2a positive battery connector for connecting the jump starter apparatus to the positive battery terminal of the depleted or discharged battery;
1.3a negative battery connector for connecting the jump starter apparatus to the negative battery terminal of the depleted or discharged battery;
1.4a power switch connected in circuit with the power supply and the positive and negative battery connectors, the power switch configured to turn power on or off from the power supply to the positive and negative battery connectors;
1.5a control system or circuit connected to and controlling the power switch, the control system or circuit configured to detect presence of the depleted or discharged battery when connected between the positive and negative battery connectors and to detect polarity of the depleted or discharged battery when connected between the positive and negative battery connectors;
1.6wherein the control system or circuit switches on the power switch to connect the power supply to the depleted or discharged battery only when the depleted or discharged battery is present and properly connected between the positive and negative battery connectors and the depleted or discharged battery is properly connected with a correct polarity between the positive and negative battery terminals.
Claim 21:
21. A jump starter apparatus for boosting or charging a depleted or discharged battery having a positive battery terminal and a negative battery terminal, the apparatus comprising:
2.1 a power supply;
2.2 a positive battery connector for connecting the jump starter apparatus to the positive battery terminal of the depleted or discharged battery;
2.3 a negative battery connector for connecting the jump starter apparatus to the negative battery terminal of the depleted or discharged battery;
2.4 a power switch connected in circuit with the power supply and the positive and negative battery connectors, the power switch configured to turn power on or off from the power supply to the positive and negative battery connectors;
2.5 a control system or circuit connected to and controlling the power switch, the control system or circuit configured to detect presence of the depleted or discharged battery when connected between the positive and negative battery connectors and to detect polarity of the depleted or discharged battery when connected between the positive and negative battery connectors;
2.6 wherein the control system or circuit switches on the power switch to cause the power supply to be connected to the depleted or discharged battery when, and only when, the depleted or discharged battery is present and properly connected between the positive and negative battery connectors and the depleted or discharged battery is properly connected with a correct polarity between the positive and negative battery terminals.
PERSON SKILLED IN THE ART
Finkelstein J considered person skilled in the art (PSA) in Root Quality Pty Ltd v Root Control Technologies Pty Ltd [2000] FCA 980; 49 IPR 225 at [70]:
“He is the person to whom the patent is addressed and who must construe it. He is the person whose knowledge will determine whether a patent is novel. He is the person who will judge whether a patent is obvious.”
The High Court in AstraZeneca AB v Apotex Pty Ltd [2015] HCA 30 at [23], further clarified that a PSA is not a real person, but an artificial construct used as a tool for analysis:
“The notional person is not an avatar for expert witnesses whose testimony is accepted by the Court. It is a pale shadow of a real person – a tool of analysis which guides the Court in determining, by reference to expert and other evidence, whether an invention as claimed does not involve an inventive step.”
The PSA is a person or team of people versed in the relevant subject matter and possesses the relevant common general knowledge. It is emphasised that a person skilled in the art is not a person of exceptional skill and knowledge.[8]
[8] Root Quality Control Pty.Ltd. V Root Control Technologies Pty.Ltd. [2000] FCA 980 at [70]-[71]; see also Catnic Components Limited and Another v Hill & Smith Limited (1982) RPC 183 at 242-243.
Both the Opponent and the Applicant agreed that the hypothetical person skilled in the art for both AU559 and AU223 ‘would be a person with practical interest in the design and manufacture of battery powered consumer devices such as portable vehicle battery jump start apparatus’.[9] I agree with this assessment given the technical field of the invention is related to power electronics and circuits, in particular battery systems.
[9] Opponent’s AU559 written submissions at [11]; see also Applicants AU559 written submissions at [14], Opponent’s AU223 written submissions at [10].
I have considered the relevant background and experience of the declarants from the relevant evidence, and I am satisfied that they can provide relevant evidence as to what a person skilled in the art would know or do. Dr Wood has extensive experience in power electronics and battery systems as evident from his Curriculum Vitae provided in Annexure JRW-5. While Mr Seligman’s experience is more broadly directed to engineering and design, it is clear that he has relevant experience with motorised vehicles and consumer protection features of electronic circuits.[10] Therefore both Dr Wood and Mr Seligman are well placed to provide evidence in this opposition. To the extent that it is necessary, where there is conflicting evidence, I will provide reasoning for which is preferred.
[10] Seligman1 at [10]-[15].
CLAIM CONSTRUCTION AND CLARITY
As provided for in s40(3) of the Act, the claims must be clear and succinct. The requirement for the claims to be clear does not mean that terms used in claims must be precise or absolute, as noted in Flexible Steel Lacing Company v Beltreco Ltd [2000] FCA 890 at [81]; [2000] FCA 890; (2001) 49 IPR 331 at 349 (and cited with approval in Austal Ships Sales Pty Ltd v Stena Rederi Aktiebolag [2008] FCAFC 121; (2008) 77 IPR 229) (Austal Ships):
“Lack of precise definition in claims is not fatal to their validity, so long as they provide a workable standard suitable to the intended use...The consideration is whether, on any reasonable view, the claim has meaning...In determining this, the expressions in question must be understood in a practical, common sense manner... Absurd constructions should be avoided...and mere technicalities should not defeat the grant of protection...”
In particular, one can consider that the claims provide a workable standard if a third party could, without difficulty, determine whether an act falls within the scope for the claim; see Monsanto Company v commissioner of Patents (1974) 48 ALJR 59 (Monsanto) at 60-61:
“There will, I think, in the present case be no difficulty in a third party ascertaining whether or not what he proposes to do falls within the ambit of the claim… For these reasons I do not regard the use of the adjective “substantial” as giving rise to any uncertainty.”
Claim construction was discussed by Bennett J in H Lundbeck A/S v Alphapharm Pty Ltd [2009] FCAFC 70 (Lundbeck) at [118]-[120]:
“…the words in a claim should be read through the eyes of the skilled addressee in the context in which they appear. Words used in a specification, including the claims, are to be given the meaning which the person skilled in the art would attach to them, having regard to his or her own general knowledge and to what is disclosed in the body of the specification… construction of a specification, including the claims, is ultimately a question of law for the Court… While the claims define the monopoly claimed in the words of the patentee's choosing, the specification should be read as a whole… It is not permissible to read into a claim an additional integer or limitation to vary or qualify the claim by reference to the body of the specification… However, terms in the claim which are unclear may be defined or clarified by reference to the body of the specification...”
Claim construction of AU559
Scope of the reverse polarity sensor output signal
The parties addressed the construction of claims 1, 2 and 3 of AU559; in particular, the scope of the output of the reverse polarity sensor (feature 1.5, 2.5 and 3.5).
The Opponent construed the claims to include a reverse polarity sensor that must be able to provide a signal which indicates a proper polarity connection. Further suggesting that the sensor may also be capable of providing a signal indicating an improper polarity connection, however this is not required by the claim.[11]
[11] Opponent’s AU559 written submissions at [40].
Alternatively, the Applicant argued that the claims should be construed to include a reverse polarity sensor with an output signal that indicates, even indirectly, that there is a proper connection. In other words, they suggest that since there are binary outputs from the sensor, both outputs will give an indication as to whether there is a proper connection of a connected vehicle battery.[12]
[12] Applicant’s AU559 written submissions at [31]-[35].
Dr Wood observed that the reverse polarity sensor must be configured to detect polarity of a connected vehicle battery and to provide an indicative signal to the microcontroller that the battery is properly connected with correct polarity.[13] Dr Wood further notes that there is no requirement in any of claims 1 to 3 that the signal be of a specific nature.[14] Mr Seligman appears to agree with Dr Wood. Mr Seligman argues that, while he agrees with Dr Wood’s construction of the claims, he does not believe the invention described could function as claimed. He argued, this was because the reverse polarity sensor described in the specification would return the same ‘high’ output signal when the battery is connected with proper polarity as it would when there is a depleted or no battery present.[15]
[13] Wood at [47].
[14] Ibid.
[15] Seligman2 at [7]-[8].
I agree with the experts that there is no requirement in the claims for the output signal to be of a particular nature. As Dr Wood mentioned, there is no explicit mention of the output signal needing to be true/false or 1/0. I further note, Mr Seligman’s evidence does not contradict the Applicant’s construction of the claims. Rather than providing an alternative interpretation, Mr Seligman appears to take issue with the disclosure in the specification when compared with the claims. Given the reverse polarity sensor is configured only to detect polarity of a connected vehicle battery, it logically follows that the output signals are binary, either proper polarity or improper polarity.
In light of the above, the reverse polarity sensor of claims 1 to 3 must be configured to detect polarity of a connected vehicle battery and the output signal of said reverse polarity sensor must be able to provide an indication of a vehicle battery connected with proper or improper polarity.
Scope of the microcontroller activating output signal
Although at the hearing the Opponent and Applicant agreed on the scope of the microcontroller and its functionality in claims 1 to 3 (feature 1.7.2, 2.7.3 and 3.7.2), given the emphasis the Applicant placed on this feature, I found it important to briefly address.
In their written submissions the Opponent considered the claims to include a microcontroller that provides an activating output signal in response to receiving certain signals from a reverse polarity sensor and a battery isolation sensor simultaneously.[16] This is largely consistent with the Applicant’s construction of this feature. The Applicant submitted the claims require the microcontroller to turn on the power in response to both the input from the reverse polarity sensor and the vehicle battery isolation sensor. This function providing the desired benefit. The microcontroller operates to allow the circuit to close and for the connection of power only when the appropriate signal is received from both sensors; in the event one sensor fails the connection will not close.[17]
[16] Opponent’s AU559 written submissions at [41].
[17] Applicant’s AU559 written submissions at [37]-[41].
To summarise, the microcontroller is configured to turn on the power switch in response to receiving input signals from both the isolation sensor and reverse polarity sensor. The microcontroller will turn on the power when the battery isolation sensor indicates the presence of the vehicle battery and the reverse polarity sensor indicates the battery is connected with proper polarity.
Clarity Regarding Claims of AU559
Claims 1 to 3
The Opponent considers claims 1 to 3 to be unclear as the microcontroller cannot receive input signals from the sensors indicating both the absence of a vehicle battery and an improper polarity connection. This is because the isolation sensor only provides a signal indicating an absence of a vehicle battery when the battery is not connected, and the reverse polarity sensor can only provide a signal indicating an improper polarity connection if the apparatus is connected to a vehicle battery. The Opponent submitted ‘to the extent that claim 1 defines that the microcontroller is configured to provide a deactivating output signal in response to input signals indicating both conditions, it is unclear’.[18]
[18] Opponent’s AU559 written submissions at [108].
The Applicant disagreed, asserting there was no clarity issue in respect of claims 1 to 3. They alleged that the specification makes it clear that a proper or improper connection is only required to be detected where the vehicle battery is connected to the jump-starting apparatus. In particular, they submit that the microcontroller is not required to receive input signals from the reverse polarity sensor in the absence of a vehicle battery as the vehicle battery is assumed to be present based on the wording of the claim.[19]
[19] Applicant’s Au559 written submissions at [106].
The relevant passage of claim 1 is as follows (my emphasis added):
“…the microcontroller is configured to provide a deactivating output signal to turn off the power switch to cause the power supply to be disconnected from the positive and negative polarity vehicle battery connectors in response to the microcontroller receiving input signals from the sensors indicating the absence of the vehicle battery connected to the positive and negative polarity vehicle battery connectors and/or improper polarity connection of the positive and negative polarity terminals of the vehicle battery to the positive and negative polarity vehicle battery connectors…”
Similar language is used in claims 2 and 3 to describe this feature, therefore the following comments on clarity apply to each.
I have construed the above feature to include a microcontroller configured to turn off the power switch in response to input signals from the sensors. The microcontroller provides the deactivating output signal when the input signals indicate either a) the absence of the vehicle battery, b) an improper polarity connection or c) an absence of the vehicle battery and an improper polarity connection. These three alternatives are introduced via the use of ‘and/or’ in the claim. As the Opponent pointed out, the reverse polarity sensor can only detect polarity of a connected vehicle battery, therefore the microcontroller can only receive an input indicating improper connection when the battery is also determined to be present. It follows that, with regards to option c), it would not be possible for the microcontroller to receive input signals indicating both the absence of a vehicle battery and an improperly connected vehicle battery.
With that said, as discussed above in Austal Ships, the expressions must be understood in a practical, common-sense manner, absurd constructions should be avoided, and mere technicalities should not defeat the grant of protection. I acknowledge that, in the context of the claim, it would be absurd to construe the microcontroller as receiving inputs about the polarity of a vehicle battery if it were not connected. To the extent it would be possible to receive polarity inputs where a battery is not connected, a signal indicating absence of a battery would still lead to deactivation. It is quite clear that the feature would be understood as simply leading to deactivation where there is either one of the relevant improper conditions present. The apparent impossibility of both improper conditions being present has no bearing on how the claim is to be understood. Therefore, in accordance with Monsanto, I do not think it would be likely that a third party would have difficulty determining whether an act falls within the scope of the claims since an input indicating either an absence of a vehicle battery or a vehicle battery connected in reverse polarity would trigger the deactivating output signal.
Consequently, I do not consider claim 1 and, for similar reasoning, claims 2 to 3 to lack clarity.
Claim 5
Claim 5 of AU559 is as follows:
5. The apparatus according to claim 1, 2 or 3, wherein the vehicle battery isolation sensor detects presence or absence of the vehicle battery prior to any initial connection and is not reliant upon any pre-established connection or operation of the circuit with the positive and negative polarity battery terminal connectors.
The Opponent argued that claim 5 was unclear. They construed claim 5 to include an isolation sensor which detects presence or absence of the vehicle battery prior to any connection. Since the isolation sensor cannot detect the presence of a vehicle battery that is not connected, they argued this renders claim 5 unclear.[20]
[20] Opponent’s AU559 written submissions at [109].
The Applicant considered there to be no ambiguity in claim 5. They highlighted that the experts agree that the ‘initial connection’ in that claim refers to a connection between the power supply and the vehicle battery via the power switch.[21]
[21] Applicant’s AU559 written submissions at [107].
With regards to claim 5, Mr Seligman states the following:
“To the extent that claims 1 to 3 refer to a ‘connection’ it is between the apparatus and the vehicle battery. It does not make sense that the isolation sensor could detect the presence of a vehicle battery before the apparatus is connected to such a battery. It is possible that claim 5 is referring to a connection between the power supply of the apparatus and the vehicle battery via the power switch.”[22]
[22] Seligman1 at [112].
Dr Wood agreed that the initial connection is referring to connection between the power supply of the apparatus and the vehicle battery via the power switch.[23]
[23] Wood at [102].
I agree with the experts in this instance. It would be absurd to conclude that claim 5 should be read to require that the isolation sensor detects presence of a vehicle battery prior to any initial connection with the apparatus. Any ambiguity within claim 5 is easily resolved by reading the claims within the context of the specification. In particular, it is an object of the invention to prevent power supply if there is no battery connected. This is to reduce potential damage and risk to safety in the event the clamps of the cables come into contact while connected to a charged battery.[24] Therefore, consistent with the findings of both Dr Wood and Mr Seligman, initial connection should be taken to refer to a connection between the power supply and the battery.
[24] AU559 at [0003]
Therefore, I do not consider claim 5 to lack clarity.
Claim 8
Claim 8 is reproduced below:
8. The apparatus according to claim 1, 2, or 3, further comprising an output port having positive and negative polarity outputs, the output port being configured to connect with a single removable plug, the single plug being connected to the positive and negative polarity cables.
With regards to claims 8 or claims 1 to 3, the Opponent considers it unclear what the positive and negative polarity cables are as the specification only describes the use of cables integrated with the plug at one end and configured to be separately connected to the terminals of the battery at the other end.[25] Alternatively, the Applicant submits that the claims are clear as Mr Seligman can understand what is required by the claims.[26]
[25] Opponent’s AU559 written submissions at [110].
[26] Applicant’s AU559 written submissions at [108].
I consider claim 8 to be clear. While ‘the positive and negative polarity cables’ may lack antecedent, using a purposive construction it is apparent that the cables further define ‘the positive and negative battery connectors’ of claims 1 to 3.
Therefore, claim 8 complies with the requirements of clarity.
Clarity Regarding Claims of AU223
At the hearing, the Opponent argued that the difference in scope between claims 1 and 21 was not readily apparent, therefore this rendered them unclear. In their written submissions, for similar reasoning, the Opponent argued claims 2 to 3, 7 to 8 and 10 were unclear as the functionality or features of these claims cannot be meaningfully differentiated from the functionality of prior claims.[27] They further clarified at the hearing that, since the claims are dependent there is an assumption that there is a difference in scope, as this is not the case the claims are rendered unclear.
[27] Opponent’s AU223 written submissions at [89]-[93].
In contrast, the Applicant does not consider the claims to be unclear. They assert that the evidence does not show the experts are unable to ascertain the scope of the claims. In support, they point out that Mr Seligman is able to determine the scope of the claims as he is able to discuss these features with regards to the prior art documents.[28]
[28] Applicant’s AU223 written submissions at [58].
Starting with the differences between the independent claims 1 and 21. The independent claims are largely similar, differing only in the final paragraph. In claim 1 the “control system or circuit switches on the power switch to connect the power supply…” while in claim 21 the “control system or circuit switches on the power switch to cause the power supply to be connected…”. It is apparent to me that the power switch in claim 1 directly connects the power supply whereas the power switch of claim 21 may do so indirectly. While the differences in scope are small this does not automatically give rise to a lack of clarity.
Turning to the dependent claims, claim 2 adds that the power is not turned on in response to signals indicating either that there is no battery present, or it is connected with incorrect polarity. Claim 3 ensures, prior to turning the power switch on, the control system or circuit detects the presence or polarity of a vehicle battery. Claim 7 further defines the sensors as comprising sensing circuits. Claim 8 and 10 describes the control system or circuit as comprising a microcontroller wherein the microcontroller performs the relevant functions.
Firstly, I do not consider that the mere presence of redundant claims (which may or may not be the case here) is sufficient to result in a finding against clarity unless there is also difficulty in ascertaining the scope according to the principles of Monsanto and Austal Ships discussed above. Claims are drafted using wording chosen by the Applicant and it is not unusual for similar features to be defined using different wording. Secondly, while a presumption against redundancy may assist in construing the claims, it does not, without more, result in a lack of clarity in this particular case. In light of this, I do not consider there to be any ambiguity in the claims that would result in a lack of clarity.
Therefore, I do not consider that the claims lack clarity.
Clarity Conclusion
I conclude that the claims of both the AU559 and AU223 applications are clear in accordance with s40(3) of the Act. This ground of opposition has been unsuccessful.
PRIORITY DATE
The Opponent argued that the claims 1-3 of AU559 and each of the claims of AU223 were not entitled to a priority date earlier than 6th of March 2019 due to the breadth of the ‘power supply’ feature present in the claims.[29] They also argued that claim 1 of AU223 is not entitled to a priority date earlier than 20th of February 2020 as it does not define any particular means by which the control system or circuit detects the presence or polarity of a connected vehicle battery.[30]
[29] Opponent’s AU559 written submissions at [42]-[47]; See also Opponent’s AU223 written submissions at [42]-[49].
[30] Opponent’s AU559 written submissions at [42]-[47].
Although the Opponent provided submissions, I have reserved opinion on the priority date eligibility of the claims as it is not a grounds of opposition under s59 nor does it impact any of the grounds raised during the respective oppositions.
UTILITY
It is a requirement of subsection 18(1)(c) of the Act that the invention, so far as claimed in any claim, must be useful. Section 7A was introduced in the RTB Act and is intended to co-exist with existing case law on utility.[31]
[31] Explanatory Memorandum, Intellectual Property Laws Amendment (Raising the Bar) Bill 2011 [2012] 44.
Section 7A is as follows:
“Meaning of useful
(1) For the purposes of this Act, an invention is taken not to be useful unless a specific, substantial and credible use for the invention (so far as claimed) is disclosed in the complete specification.
(2) The disclosure in the complete specification must be sufficient for that specific, substantial and credible use to be appreciated by a person skilled in the art.
Subsection (1) does not otherwise affect the meaning of the work useful in this Act.”
Therefore, an invention must have a specific, substantial and credible use that is disclosed in the patent specification and meet the requirements of the existing case law.
Existing case law on utility required that the invention must achieve the promised benefit. To assist in determining whether the invention achieves the promised benefit, the Court in Artcraft Urban Group Pty Ltd v Streetworx Pty Ltd [2016] FCAFC 29 at [121] proposed two questions:
“Put another way, the two questions are: first, what is the promise of the invention derived from the whole of the specification?; second, by following the teaching of the specification, does the invention, as claimed in the patent, attain the result promised for it by the patentee?...Further, ‘everything’ that is within the scope of a claim must be useful, that is, attain the result promised for the invention by the patentee: Lundbeck at 172 [81], Emmett J.[32]”
[32] H Lundbeck A/S v Alphapharm Pty Ltd [2009] FCAFC 70; (2009) 177 FCR 151 at 198 [217] (“Lundbeck”)
As was noted in Apotex Pty Ltd v AstraZeneca AB (No 4) [2013] FCA 162 (see [352]):
“Ultimately, an asserted lack of utility must be established by appropriate evidence, not by mere speculation that the invention will not work or meet the promise set out in the specification.”
The Opponent argued that there is nothing about the apparatus’ described in AU559 or AU223 which achieve the promised benefit of lowering costs or reducing complexity. They further submitted that, while the device does include features that reduce potential for malfunction, these are not different to features already included in other known devices.[33]
[33] Opponent’s AU559 written submissions at [120]-[122]; See also Opponent’s AU223 written submissions at [109]-[111].
The Applicant argued the Opponent has not established the contention that what is claimed is not an improvement to a vehicle jump start device. Additionally, they point out that the Opponent appears to agree that there are features which reduce the potential for malfunction, therefore the claims cannot lack utility.[34]
[34] Applicant’s AU559 written submissions at [114]-[119].
In relation to claim 13 of AU559 the Opponent submitted:
“In paragraph [0033] of AU559 there is reference to diodes 28 which are shown in figure 2B-1. As shown in that figure, the diode module is connected between the positive terminal of the lithium battery and the terminal connector which connects to the positive terminal of the vehicle battery. In such a configuration, the diodes can prevent back charging. However, in claim 13, it is said that the diodes are coupled between, on the one hand the positive and negative polarity vehicle battery terminal connectors and on the other hand, the power supply. Such a configuration would not work as defined.”[35]
[35] Opponent’s AU559 written submissions at [124].
In response, the Applicant submitted that claim 13 is to be construed to mean that the power diodes are electrically connected in circuit between the power supply and the connectors. They argued that a person skilled in the art would understand the claim to mean that the power diodes are electrically connected in series so as to prevent current flow from an external electrical system back into the power supply of the apparatus via its connectors.[36]
[36] Applicant’s AU559 written submissions at [120].
Claim 13 is provided below:
13. The apparatus of claim 1, 2 or 3, further comprising a plurality of power diodes coupled between the positive and negative polarity vehicle battery terminal connectors and the power supply to prevent back-charging of the power supply from an electrical system connected to the positive and negative polarity vehicle battery terminal connectors.
With regards to the Opponent’s first point, the claimed invention is not only addressing the cost and complexity of the prior art arrangements, it also aims to reduce potential for malfunction.[37] Referring to paragraph [0013] of AU559, the promised benefit is not in the combination of all these factors, but in ‘further improvements to vehicle jump starter devices’. Given the promised benefit is described broadly, it is hard to argue that the desired result could not be achieved according to the claimed invention which requires two specific inputs to confirm when it is, or is not, safe to close the power switch that connects the internal power supply of the jump starter to the vehicle battery. In using two signals, one indicating the presence and the other indicating the polarity of a vehicle battery, there is a reduced risk to safety and potential for malfunction in the form of redundancy.[38] This also provides specific, substantial and credible use for the claimed invention.
[37] AU559 at [0013]; see also AU223 at [0013].
[38] See for example AU559 at [0029]; see also AU223 at [0029].
The Opponent appears to acknowledge that the invention described does reduce potential for malfunction.[39] Furthermore, the evidence of Mr Seligman does not support a lack of utility. In Seligman1 at [94], he states “While the devices described do include features directed to reducing potential for malfunction, these are not different to the features already included in other known devices”. In this respect, no evidence has been provided by the Opponent that substantiates their assertion that the claimed invention is incapable of achieving the promises of the invention.
[39] See Opponent’s AU559 written submissions at [120]-[122]; See also Opponent’s AU223 written submissions at [109]-[111].
With regards to claim 13, I agree with the Applicant. The Opponent’s construction of the claim is absurd. Using a purposive construction, I do not consider that the claim would be read in such a way that it would not prevent back-charging. Furthermore, any ambiguity in claim 13 can easily be resolved by reference to the specification where it is clear that the power diodes are electrically connected in circuit between the power supply and the connectors.[40]
[40] See AU559 [0033].
It is clear in the absence of evidence regarding the Opponent’s assertion that the invention would not work or meet the promise set out in the specification, I cannot conclude that the claims lack utility according to the relevant provisions of the Act. Therefore, the Opponent’s case on this ground fails.
CLEAR ENOUGH AND COMPLETE ENOUGH DISCLOSURE
The requirement for clear enough and complete enough disclosure was introduced into the Act as part of the RTB Act. Specifically, s40(2)(a) reads as follows:
“(2) A complete specification must:
(a) Disclose the invention in a manner which is clear enough and complete enough for the invention to be performed by a person skilled in the relevant art.”
As explained in the Explanatory Memorandum (‘EM’) to the RTB legislation at Schedule 1, item 2, enablement amounts to a requirement that “...sufficient information must be provided to enable the whole width of the claimed invention to be performed by the skilled person without undue burden, or the need for further invention”. As per Schedule 1, item 8, of the EM, the intention is for s40(2)(a) be given the same effect as corresponding provisions of UK legislation and the European Patent Convention.
In CSR Building Products Limited v United States Gypsum Company [2015] APO 72 (‘CSR’) a Delegate of the Commissioner considered a number of relevant UK and EPO decisions and used the following approach s40(2)(a) at [95]:
“In order to decide whether a specification provides a disclosure as required by section 40(2), it is necessary to:
i.construe the claims to determine the scope of invention as claimed,
ii.construe the description to determine what it discloses to the person skilled in the art, and
iii.decide whether the specification provides an enabling disclosure of all the things that fall within the scope of the claims.”
Upon further analysis of relevant UK and EPO decisions on s40(2)(a), a Deputy Commissioner expanded on the third point from the approach used in CSR in Evolva SA [2017] APO 57 (‘Evolva’) at [45]:
“Does the specification provide an enabling disclosure of all the things that fall within the scope of the claims, and in particular:
a.Is it plausible that the invention can be worked across the full scope of the claim?
b.Can the invention be performed across the full scope of the claim without undue burden?”
To expand on the principles presented in Evolva, the Deputy Commissioner considered (at [43]-[44]):
“…the assertion that the invention works across the full scope of the claim be plausible or credible, appears to me to be consistent with, or an alternative means of articulating, the concept of a principle of general application… An assertion in a patent specification could hardly be considered a principle with broader applicability if the skilled reader would not consider it plausible from a technical viewpoint.”
The Opponent raised several arguments against s 40(2)(a) of the Act with regards to the claims of both AU559 and AU223. I have summarised the arguments below:
a)External power supply: The Opponent argued that the claims of AU223 includes within the scope an apparatus having an external power supply wherein there is only enabling disclosure for an internal power supply.[41] At the hearing, the Opponent provided similar reasoning for why there wasn’t clear enough and complete enough disclosure of claims 1 to 3 of AU559.
b)Reverse polarity sensor indicating proper connection: With regards to the claims of AU559 and claim 5 of AU223, the Opponent argued that there is not clear enough and complete enough disclosure of a reverse polarity sensor that provides an output signal indicating a properly connected vehicle battery. The specification defines a reverse polarity sensor that provides an output signal when the vehicle battery is improperly connected, however there is no enabling disclosure of an output signal indicating a proper connection since this signal is indistinguishable from an output signal produced when the vehicle battery is depleted or not connected at all.[42]
c)Means for connecting: The Opponent argued that the claims, other than claims 6 and 8 of AU559 and claim 11 of AU223, encompass any means for connecting the apparatus to a vehicle battery when there is only enabling disclosure for a jumper cable device having a plug at one end for connecting to the output port and a pair of clamps at the opposite end.[43]
d)Control system or circuit: The Opponent submitted claim 1 of AU223 offends against s40(2)(a) as there is not clear enough and complete enough disclosure of a control system or circuit configured to detect the polarity and presence of a depleted battery. They argued that there is only enabling disclosure for two discrete sensors each detecting either the presence or polarity of a battery.[44]
[41] Opponent’s AU223 written submissions at [79]-[80].
[42] Opponent’s AU559 written submissions at [100]-[104]; Opponent’s AU223 written submissions at [85].
[43] Opponent’s AU559 written submissions at [105]-[107]; Opponent’s AU223 written submissions at [86]-[88].
[44] Opponent’s AU223 written submissions at [81]-[83].
The Applicant’s responses to each of these points were similar. More specifically, the Applicant argued that the Opponent had not provided evidence to establish that there is insufficient disclosure for a person skilled in the art to perform the invention across the scope of the claims.[45] At the hearing, the Applicant also pointed out that Dr Wood said that there was sufficient disclosure to perform the invention across the breadth of the claims.[46]
[45] Applicant’s AU559 written submissions at [102]-[104].
[46] See Wood at [34].
In light of the evidence before me I am not convinced that there is insufficient disclosure of everything that falls within the features concerned nor that there would be undue burden placed on the technical experts. S40 (2)(a) is a question of fact that is best established through evidence from people skilled in the art. Dr Wood is the only expert that provided evidence in relation to this issue and his statements are in support of the Applicant. Regardless I will briefly address each of the Opponent’s points below:
a) External power supply: When properly construing the claims it is clear that they require that the apparatus comprises the power supply, therefore implying that the power supply is an internal power supply. It may be the case that the Opponent is, instead, referring to whether or not an external power source is enabled by the specification. Regardless, there is insufficient evidence to suggest that there would be undue burden on a person skilled in the art in using an external power source with the claimed apparatus. It follows that there is clear enough and complete enough disclosure of this feature.
b) Reverse polarity sensor indicating proper connection: A reverse polarity sensor that provides an output signal indicating a properly connected vehicle battery would also indicate an improperly connected vehicle battery. As discussed previously, the reverse polarity sensor, as claimed, can only detect polarity of a connected vehicle battery, therefore, the signal it produces when there is no battery present is not indicative of a proper or improper polarity connection. Therefore, this feature is disclosed and sufficiently enabled by the specification.
c) Means for connecting: I consider a person skilled in the art would possess the relevant knowledge to create any suitable means for connecting the vehicle battery with the jump starter apparatus. There is no evidence that would suggest this would not form part of the common general knowledge in the art.
d) Control system or circuit: I consider it would be known to a person skilled in the art which means are available to detect the polarity and presence of a depleted vehicle battery. This broad term would include, within the scope, the use of sensors.
I am therefore not satisfied on a balance of probabilities, that the specification does not disclose the invention in a manner which is clear enough and complete enough for the invention to be performed by a person skilled in the art. This ground of opposition has not been made out.
SUPPORT FOR THE CLAIMS
Sub-section 40(3) as amended by the RTB Act requires that the claims must be supported by matter disclosed in the specification. As explained in the Explanatory Memorandum (‘EM’) to the RTB legislation at Schedule 1, item 9, the amendment aims to align the requirements with those in other jurisdictions. Therefore, guidance regarding the requirements for ‘support’ can be sought from European patent decisions such as Fuel Oils/EXXON (T409/91) [1994] OJ EPO 653 (‘Exxon’) at 659:
"the claims must be supported by the description, in other words it is the description of the invention in the claims that needs support. In the Board's judgment, this requirement reflects the general legal principle that the extent of the patent monopoly, as defined by the claims, should correspond to the technical contribution to the art in order for it to be supported, or justified (see T 133/85, OJ EPO 1988, 441). This means that the definitions in the claims should essentially correspond to the scope of the invention as disclosed in the description. In other words, as was stated in decision T 26/81 (OJ EPO 1982, 211, point 4 of the reasons), the claims should not extend to subject-matter which, after reading the description, would still not be at the disposal of the person skilled in the art. Consequently, a technical feature which is described and highlighted in the description as being an essential feature of the invention, must also be a part of the independent claim or claims defining this invention" (emphasis in the original).
To summarise, support requires “the description to be the base which can fairly entitle the patentee to a monopoly of the width claimed.”[47] This means that, as quoted above, “the claims should not extend to subject-matter which, after reading the description, would still not be at the disposal of the person skilled in the art.”[48]
[47] Schering Biotech Corp.’s Application [1993] RPC 249
[48] Fuel Oils/EXXON (T409/91) [1994] OJ EPO 653 (‘Exxon’) at 659.
More recently, Burley J explored the concept of support in Merck Sharp & Dohme Corporation v Wyeth LLC (Merck Sharp) (No 3) [2020] FCA 1477 at [546]-[547]:
“In CSR Building Products Ltd v United States Gypsum Company [2015] APO 72, Dr S D Barker adopted the summary provided by Aldous J in Schering Biotech at 252 – 253, which has been often followed in the United Kingdom (emphasis added):
...to decide whether the claims are supported by the description it is necessary to ascertain what is the invention which is specified in the claims and then compare that with the invention which has been described in the specification. Thereafter the court’s task is to decide whether the invention in the claims is supported by the description. I do not believe that the mere mention in the specification of features appearing in the claim will necessarily be a sufficient support. The word “support” means more than that and requires the description to be the base which can fairly entitle the patentee to a monopoly of the width claimed.
That approach encapsulates broadly the claim support obligation under s 40(3). To it may be added the requirement that the technical contribution to the art must be ascertained. Where it is a product, it is that which must be supported in the sense that the technical contribution to the art disclosed by the specification must justify the breath of the monopoly claimed”.
Technical contribution
The Applicant argued that the technical contribution in the art is the functional feature where the control system or circuit switches on the power switch to connect the power supply to the depleted or discharged battery only when said battery is present and connected to the apparatus with proper polarity. They further submit that it is this feature which prevents malfunction and confers a real-life technical advantage.[49] It is apparent that the Applicant considers the technical contribution to be a principle of general application; namely, the operation of the control system or circuit to turn on the power switch when, and only when, it receives a signal indicating the battery is present and connected with proper polarity.
[49] Applicant’s AU223 written submissions at [61]-[62].
The Opponent however contends that the technical contribution to the art additionally comprises the following features:
i.A reverse polarity sensor indicating improper polarity connection of a connected vehicle battery;
ii.Two discrete sensors detecting either the presence or polarity of a vehicle battery;
iii.An internal power supply; and
iv.Means for connecting the apparatus to a vehicle battery comprising a jumper cable having a plug at one end for connecting to the output port and a pair of clamps at the opposite end.[50]
[50] Opponent’s AU559 written submissions at [111]-[117]; Opponent’s AU223 written submissions at [94]-[106].
While as noted by the authorities, where the technical contribution to the art is a principle of general application, the claims may be drafted more broadly, it is also necessary to look at the specification to see what it asserts to be the invention and then decide whether it can justify the breadth of the monopoly claimed.
As discussed earlier, the specification notes the problems of known vehicle battery jump starter devices including the risk to safety or product damage when either the jumper terminals or clamps of the cables are inadvertently brought into contact with each other while the other ends are connected to a charged battery, or when the positive and negative terminals were connected to the opposite polarity terminals in the vehicle to be jumped. The object of the invention is to reduce potential for malfunction, cost and complexity of jump starter apparatus or to provide further improvements to vehicle jump starter apparatus.[51] The specifications also discuss prior art attempts to solve these problems, which include various methods of detecting proper/improper polarity connections or presence of a battery and controlling the electrical connection accordingly.[52]
[51] AU559 at [0003] & [0013].
[52] AU559 at [0004]-[0012].
Relevant to solving the specified problems, I also note the following passage in the specifications (my emphasis added):
“…Using these specific inputs [indicating reverse polarity and absence of a battery], the microcontroller software of MCU 1 can determine when it is safe to turn on the smart switch FET 15, thereby connecting the lithium battery pack to the terminals of the booster device. Consequently, if the car battery 72 either is not connected to the booster device at all, or is connected with reverse polarity, the MCU 1 can keep the smart switch FET 15 from being turned on, thus preventing sparking/short circuiting of the lithium battery pack.”[53]
[53] AU559 at [0029]; see also AU223 at [0029].
Consistent with the Applicant’s summary of the technical contribution, Dr Wood makes the following observations with regards to the AU559 specification:
“In light of the safety concerns associated with jump starters, and especially with lithium-ion batteries, the invention claimed in AU559 provides a solution with two important safety functions. The starter should confirm that a vehicle battery is connected to the jump starter, and also should confirm that the vehicle battery is not connected with reverse polarity. By confirming both of these conditions, the jump starter can determine when, and importantly when not, to close the power switch that connects the internal power supply of the jump starter to the vehicle battery.”[54]
Dr Wood made similar comments with regards to AU223.[55]
[54] Wood at [30]; see also Wood2 at [25].
[55] Wood2 at [25].
In addition to the above, I acknowledge that the specification only discusses the use of at least two sensors, which Dr Wood describes as providing the following benefits:
“These safety checks can be performed efficiently and effectively using two sensors as recited in each of Claims 1 to 3 of AU559…
The use of two separate sensors provides an extra benefit to the claimed invention in the form of redundancy. By requiring input signals from two separate sensors, if either of the two sensors fails the microprocessor will not close the power switch, thereby protecting the user, the jump starter, and the vehicle battery from the problems discussed above. In this manner, the claimed invention is fault tolerant and provides a greater margin of safety for the use. While it may be possible to detect fault conditions with more complex designs, the two-sensor design claimed in AU559 achieves these safety benefits without adding significant complexity.[56]
[56] Wood at [31]-[32].
On a balance, I am inclined to agree with the Applicant. I consider the technical contribution can be described more broadly as the functional feature of controlling power supply in response to signals indicating whether a vehicle battery is present and connected with proper polarity. While Dr Wood described the benefits of having two discrete sensors, it is evident from the specification passage provided above, that the emphasis is placed on the specific inputs rather than the means used to achieve this. There is also no evidence before me that would indicate that the principle applied more broadly would not be at the disposal of a person skilled in the art after reading the description.
I also note, Mr Seligman states (my emphasis added):
“The apparatus described in each of paragraphs [0014]. [0014a] and [0014b] appear to me to be typical jump starters controlled by a microprocessor and having well known safety features including the ability to detect the presence of a battery and the polarity of the device’s connection to that battery. This information is then used by the microprocessor to determine whether it is safe to commence a jumpstarting operation… While the devices described do include features directed to reducing potential for malfunction, these are not different to the features already included in other known devices.”[57]
[57] Seligman1 at [94].
To my mind, this further indicates that the technical contribution is not in the specific means of detecting the presence or polarity of a connected vehicle battery, but rather the principle of using these signals, in combination, to control connection to the power supply of a jump starter apparatus.
Therefore, I consider the technical contribution to be a jump starter apparatus configured to turn on connection to the power supply only in response to signals indicating both the presence and proper polarity connection of a vehicle battery.
I will now consider each of the Opponent’s arguments against support.
Reverse polarity sensor
The Opponent argued that claims 1 to 3 of AU559 are not supported by matter disclosed in the specification. They submitted that there is no support for a reverse polarity sensor which provides an output signal indicating that the positive and negative polarity terminals of the vehicle battery are properly connected as required in claims 1 to 3. In particular, they claim the description only discloses a reverse polarity sensor which provides a signal indicating that the positive and negative polarity terminals of the vehicle battery are improperly connected. They argue that the reverse polarity sensor signal indicating a proper connection is indistinguishable from the signal it provides when there is no battery connected.[58]
[58] Opponent’s AU559 written submissions at [115].
The Applicant considered the Opponent’s arguments against support for the claims were based on an incorrect construction of the claims. They argued that the preferred embodiment in the specification provides a reverse polarity sensor that indicates a proper connection indirectly. Regardless, they argued there is sufficient disclosure of a proper connection in the specification and that the technical contribution is not limited to the output signal indicating either a proper or improper connection.[59]
[59] Applicant’s AU559 written submissions at [109]-[110].
As discussed previously, the wording of the claims dictate that the reverse polarity sensor is configured to detect polarity of a connected vehicle battery, it does not determine polarity when there is no vehicle battery connected. In light of this, the outputs from the reverse polarity sensor are binary, wherein one output indicates proper polarity, therefore the description provides support for this feature.
I conclude claims 1 to 3 of AU559 are supported.
Two discrete sensors
The Opponent submitted that claims 1 and 21 of AU223 define a control system or circuit configured to detect the presence and polarity of a depleted battery wherein there is only support for two discrete sensors which detect the polarity or presence of connected vehicle battery in the specification.[60] They provided similar reasoning for claim 5 of AU223, arguing there is no support for a single sensor configured to detect both the presence and polarity of a connected vehicle battery.[61] With regards to claims 1 to 3 of AU559, the Opponent argued that the description provides no support for an apparatus which does not have a separate isolation sensor, a construction taken due to the wording of claim 4.[62]
[60] Opponent’s AU223 written submissions at [101]-[102].
[61] Ibid at [103]-[104].
[62] Opponent’s AU559 written submissions at [117].
The Applicant submitted that the technical contribution resides in the way microcontroller or control system responds to signals indicating the presence or polarity of a connected vehicle battery, further asserting that the control circuit shown in the preferred embodiment and the specific sensor configuration is not the technical contribution. They argue that a person skilled in the art would appreciate that a single sensor or sensing circuit could be configured to detect both the presence and polarity of a vehicle and provide discrete outputs to the control system defined in the claims.[63]
[63] Applicant’s AU223 written submissions at [65]; Applicant’s AU559 written submissions at [113].
As discussed above in Exxon, a further requirement of s40(3) is that the claims should not extend to subject-matter which, after reading the description, would still not be at the disposal of the person skilled in the art. Notably, there is no material before me that would suggest that a control system or circuit claimed broadly would not be enabled by the description, or in other words, at the disposal of a person skilled in the art. Furthermore, as mentioned previously, the technical contribution is not directed to the use of two discrete sensors; rather, the essential features of the claims are the two input signals, one indicating the presence of a vehicle battery and the other indicating proper polarity connection of a vehicle battery.
For the reasons already discussed, I conclude claims 1, 5 and 21 of AU223 and claims 1 to 3 of AU559 are supported.
Internal power supply
The Opponent submitted that each of the claims of AU223 lacked support as the claims define an apparatus having a power supply, however there is only disclosure of an internal power supply in the specification.[64] At the hearing the Opponent provided similar reasoning for why claims 1 to 3 of AU559 were not supported.
[64] Opponent’s AU223 written submissions at [98]-[100].
In contrast the Applicant argued that the invention can operate with any suitable power source and the apparatus having an internal battery did not define the technical contribution to the art.[65]
[65] Applicants AU223 written submissions at [63].
I conclude claims 1 to 3 of AU559 and each of the claims of AU223 to be supported. As mentioned previously, it is clear that the claims require that the apparatus comprises the power supply, therefore implying that the power supply is an internal power supply. It follows that there is support for this feature.
Means for connecting the apparatus to a vehicle battery
The Opponent argued there is no support for claims 1 to 3 of AU559 and each claim in AU223, with the exclusion of claim 11, lacks support. The claims define any means for connecting the apparatus to a vehicle battery via positive and negative polarity battery connectors. They considered these claims to lack support in light of the description as there is only disclosure of a jumper cable having a plug at one end for connecting to the output port and a pair of clamps at the opposite end.[66]
[66] Applicant’s AU559 written submissions at [116]; Opponent’s AU223 written submissions at [105]-[106].
In response, the Applicant argued that the technical contribution is not limited to the specific connecting means therefore it is not necessary to specify the means in the claims.[67] They further argue that a person skilled in the art, armed with the relevant common general knowledge, would appreciate that any suitable electrical conductors could be provided to electrically connect the apparatus to the vehicle battery, therefore the claims are supported by the technical contribution in the art.[68]
[67] Applicant’s AU559 written submissions at [112].
[68] Applicant’s AU223 written submissions at [66].
“…It is clear to me that Zhang 2 discloses a jump stater device which includes a battery presence detection circuit and battery polarity detection circuit as identified in paragraph [91] of Wood. Having regard to the purpose of these protections and the overall disclosure of Zhang 2, I consider that an interpretation, which involves the CPU closing the main power switch prior to and without regard to a reading by the CPU of the state of the relevant two input signals External BAT-TEST and Reverse-Ctrl, to be untenable…”[82]
[82] Seligman2 at [22].
In the Opponent’s written submissions, they make reference to Apotex Pty Ltd v Sanofi-Aventis [2009] FCAFC 134 at [104] to suggest that “there is anticipation if the skilled addressee would add missing information to what is disclosed in the prior art as a matter of course and without the application of inventive ingenuity or undue experimentation”.[83] However, I would note, when this paragraph is read in context, reference to “missing information” that might be added by the skilled addressee refers to the implicit disclosure of the citation. An implicit disclosure is confined to what is in fact disclosed to the skilled addressee by the prior document (see AstraZeneca AB v Apotex Pty Ltd [2014] FCAFC 99 at [347]-[350]).
[83] Opponent’s AU559 written submissions at [74].
Mr Seligman’s statements do not provide sufficient basis for implicit disclosure of the CPU turning on the power switch in response to input signals from both the External BAT-TEST and Reverse-Ctrl. It is not clear why, having regard to the purpose of the various protections, Mr Seligman considers it unlikely that the CPU would close the main power switch prior to a reading of the input signals. Zhang2 is directed to providing an emergency power supply with automatic preheating and, as Dr Wood observed, there is only explicit mention of the CPU driving the relevant acoustic alarm and heater control circuits in response to detecting the state of all of the signal input ports.
Therefore, I conclude that Zhang2 does not provide clear and unmistakable direction of a control system that switches on the power supply to a vehicle battery in response to signals indicating both the vehicle battery is present and connected with correct polarity.
Zhang2: Novelty of AU559
Each of the independent claims 1 to 3 require the microcontroller to be configured to turn on the power switch when receiving input signals from the vehicle battery isolation sensor and the reverse polarity sensor indicating both the presence and proper polarity of a vehicle battery. For the reasons discussed above, there is not clear and unmistakable direction in Zhang2 of this feature.
Therefore, the claims 1-30 are novel in light of Zhang2.
Zhang2: Novelty of AU223
Each of the independent claims 1 and 21 require that the control system or circuit switches on the power supply to the vehicle battery when the vehicle battery is determined to be present and connected with correct polarity. For the reasons discussed above, there is not clear and unmistakable direction in Zhang2 of this feature.
Therefore, the claims 1-21 are novel in light of Zhang2.
Novelty conclusion
For the reasons outlined above, the claims of each of AU559 and AU223 are novel. The Opponent has failed to make a case against novelty.
INVENTIVE STEP
It is a requirement of subsection 18(1) of the Act that the invention, so far as claimed in any claims, involves an inventive step. Subsection 7(2)-(3) states:
“(2) For the purposes of this Act, an invention is taken to involve an inventive step when compared with the prior art base unless the invention would have been obvious to a person skilled in the art in light of the common general knowledge as it existed (whether in or out of the patent area) before the priority date of the relevant claim, whether that knowledge is considered separately or together with the information mentioned in subsection (3).
(3) The information for the purposes of subsection (2) is:
(a) any single piece of prior art information; or
(b) a combination of any 2 or more pieces of prior art information that the skilled person mentioned in subsection (2) could, before the priority date of the relevant claim, be reasonably expected to have combined.”
The test for obviousness was developed in Wellcome Foundation Ltd v VR Laboratories (Aust) Pty Ltd [1981] HCA 12; (1981) 148 CLR 262 (‘Wellcome Foundation’) at [45] (my emphasis added):
“The test is whether the hypothetical addressee faced with the same problem would have taken as a matter of routine whatever steps might have led from the prior art to the invention, whether they be the steps of the inventor or not.”
In considering the question of what constitutes “a matter of routine”, in Aktiebolaget Hassle v Alphapharm Pty Ltd [2002] HCA 59; (2002) 212 CLR 411; (2002) 194 ALR 485; (2002) 77 ALJR 398, it was stated at [53]:
“That way of approaching the matter has an affinity with the reformulation of the ‘Cripps question’ by Graham J in Olin Mathieson Chemical Corporation v Biorex Laboratories Ltd. This Court had been referred to Olin in the argument in Wellcome Foundation. Graham J had posed the question:
‘Would the notional research group at the relevant date, in all the circumstances, which include a knowledge of all the relevant prior art and of the facts of the nature and success of chlorpromazine, directly be led as a matter of course to try the -CF3 substitution in the “2” position in place of the -Cl atom in chlorpromazine or in any other body which, apart from the -CF3 substitution, has the other characteristics of the formula of claim 1, in the expectation that it might well produce a useful alternative to or better drug than chlorpromazine or a body useful for any other purpose?’ (emphasis added)
That approach should be accepted.” (original emphasis, reference(s) omitted).
Importantly, inventive step is a question of fact that is best established by evidence.
Inventive step considerations
At the hearing and in their written submissions, the Opponent proceeded only with the following citations for each of AU559 and AU223:
· CN202696190 Shanghai Guangwei Electric & Tools Co., Ltd., 23rd of January 2013 (Zhang1)
· US20140077755, Zhang et al, 20th of March 2014 (Zhang2)
The Opponent relied primarily on a finding against novelty for each of the independent claims of AU559 and AU223. At the hearing the Opponent argued that, in the event the claims were found novel, they would not be inventive. However, they did not provide further explanation beyond an assertion that the necessary inferences could be drawn from Mr Seligman’s evidence. Regardless, for completeness, I have made the following considerations with regards to inventive step.
Mr Seligman observed that it was known in the art to have protections against short circuit and reverse polarity connection. He also listed other common protections including overcurrent protection, duty cycle protection, overtemperature protection, overvoltage protection and undervoltage protection.[84]
[84] Seligman1 at [26].
As discussed previously, neither Zhang1 nor Zhang2 disclose the feature of a control system that switches on the power supply to a vehicle battery in response to signals indicating both the vehicle battery is present and connected with correct polarity. This feature is required by each of the independent claims of both AU559 and AU223.
While Mr Seligman described known problems with jump-starter apparatus, there is no evidence before me that would indicate that the provided solution would be obvious nor is it apparent that a skilled addressee faced with the same problem would have taken as a matter of routine whatever steps might have led from the prior art to the claimed invention. The claimed invention requires that the power is only turned on in response to input signals indicating both the presence of a vehicle battery and a proper polarity connection. Functionally, this requires detection of these parameters prior to closing the circuit. As discussed previously, notwithstanding the ambiguity, parts of Zhang1 teach away from receiving both inputs prior to turning on the power, therefore, when faced with the same problem, it would not be obvious to arrive at the claimed invention. With regards to Zhang2, there is not sufficient evidence to establish that it would be common general knowledge or obvious to turn on the power of a jump-starter apparatus only after receiving input signals indicating both the presence and proper polarity connection of a vehicle battery.
For the reasons outlined above, the claims of each of AU559 and AU223 are inventive. The Opponent has failed to make a case against inventive step.
CONCLUSION AND COSTS
Opposition for both 2019201559 and 2020201223 has been unsuccessful.
The normal approach is that costs follow the event, I see no reason to depart from this. I will award costs, according to Schedule 8, against the Opponent, Brown & Watson International P/L for both 2019201559 and 2020201223.
S.E. Howard
Delegate of the Commissioner of Patents
ANNEXURE A: AU559 CLAIMS
1. An apparatus for jump starting a vehicle having a depleted or discharged vehicle battery with positive and negative polarity terminals, the apparatus comprising:
a power supply;
a positive polarity vehicle battery terminal connector;
a negative polarity vehicle battery terminal connector;
a vehicle battery isolation sensor connected in circuit with the positive and negative polarity vehicle battery terminal connectors, the vehicle battery isolation sensor configured to detect a presence of the vehicle battery when connected between the positive and negative polarity vehicle battery terminal connectors;
a reverse polarity sensor connected in circuit with the positive and negative polarity vehicle battery terminal connectors, the reverse polarity sensor configured to detect a polarity of the vehicle battery connected between the positive and negative polarity vehicle battery terminal connectors and to provide an output signal indicating that the positive and negative polarity terminals of the vehicle battery are properly connected to the positive and negative polarity vehicle battery connectors;
a power switch connected between the power supply and the positive and negative polarity vehicle battery terminal connectors; and
a microcontroller configured to receive input signals from the vehicle isolation sensor and the reverse polarity sensor, the microcontroller is configured to provide an activating output signal to turn on the power switch to cause the power supply to be connected to the positive and negative polarity vehicle battery connectors in response to the microcontroller receiving input signals simultaneously from the sensors indicating both the presence and connection of the vehicle battery to the positive and negative polarity vehicle battery connectors and proper polarity connection of the positive and negative polarity terminals of the vehicle battery with the positive and negative polarity battery terminal connectors, and the microcontroller is configured to provide a deactivating output signal to turn off the power switch to cause the power supply to be disconnected from the positive and negative polarity vehicle battery connectors in response to the microcontroller receiving input signals from the sensors indicating the absence of the vehicle battery connected to the positive and negative polarity vehicle battery connectors and/or improper polarity connection of the positive and negative polarity terminals of the vehicle battery to the positive and negative polarity vehicle battery connectors.
2. An apparatus for jump starting a vehicle having a depleted or discharged vehicle battery with positive and negative polarity terminals, the apparatus comprising:
a power supply;
a positive polarity vehicle battery terminal connector;
a negative polarity vehicle battery terminal connector;
a vehicle battery isolation sensor connected in circuit with the positive and negative polarity vehicle battery terminal connectors, the vehicle battery isolation sensor configured to detect a presence of the vehicle battery when connected between the positive and negative polarity vehicle battery terminal connectors;
a reverse polarity sensor connected in circuit with the positive and negative polarity vehicle battery terminal connectors, the reverse polarity sensor configured to detect a polarity of the vehicle battery connected between the positive and negative polarity vehicle battery terminal connectors and to provide an output signal indicating that the positive and negative polarity terminals of the vehicle battery are properly connected to the positive and negative polarity vehicle battery connectors;
a power switch connected between the power supply and the positive and negative polarity vehicle battery terminal connectors; and
a microcontroller configured to receive input signals from the vehicle isolation sensor and the reverse polarity sensor, the microcontroller configured to control operation of the power switch,
wherein the microcontroller is configured to turn on the power switch when receiving input signals from the vehicle isolation sensor and reverse polarity sensor indicating both the presence and connection of the vehicle battery to the positive and negative polarity vehicle battery connectors and proper polarity connection of the positive and negative polarity terminals of the vehicle battery with the positive and negative polarity battery terminal connectors, and
wherein the microcontroller is configured to turn off the power switch when receiving input signals from the sensors indicating the absence of the vehicle battery connected to the positive and negative polarity vehicle battery connectors and/or improper polarity connection of the positive and negative polarity terminals of the vehicle battery to the positive and negative polarity vehicle battery connectors.
3. An apparatus for jump starting a vehicle having a depleted or discharged vehicle battery with positive and negative polarity terminals, the apparatus comprising:
a power supply;
a positive polarity vehicle battery terminal connector;
a negative polarity vehicle battery terminal connector;
a vehicle battery isolation sensor connected in circuit with the positive and negative polarity vehicle battery terminal connectors, the vehicle battery isolation sensor configured to detect a presence of the vehicle battery when connected between the positive and negative polarity vehicle battery terminal connectors;
a reverse polarity sensor connected in circuit with the positive and negative polarity vehicle battery terminal connectors, the reverse polarity sensor configured to detect a polarity of the vehicle battery connected between the positive and negative polarity vehicle battery terminal connectors and to provide an output signal indicating that the positive and negative polarity terminals of the vehicle battery are properly connected to the positive and negative polarity vehicle battery connectors;
a power switch connected between the power supply and the positive and negative polarity vehicle battery terminal connectors; and
a microcontroller configured to receive input signals from the vehicle isolation sensor and the reverse polarity sensor, the microcontroller is configured to turn on the power switch to cause the power supply to be connected to the positive and negative polarity vehicle battery connectors in response to the microcontroller receiving input signals simultaneously from the sensors indicating both the presence and connection of the vehicle battery to the positive and negative polarity vehicle battery connectors and proper polarity connection of the positive and negative polarity terminals of the vehicle battery with the positive and negative polarity battery terminal connectors, and the microcontroller is configured to turn off the power switch to prevent the power supply from being connected to the positive and negative polarity vehicle battery connectors in response to the microcontroller not receiving the input signals simultaneously from the sensors indicating both the presence and connection of the vehicle battery to the positive and negative polarity vehicle battery connectors and proper polarity connection of the positive and negative polarity terminals of the vehicle battery with the positive and negative polarity battery terminal connectors.
4. The apparatus according to claim 1, 2 or 3, wherein the vehicle battery isolation sensor is a separate isolation sensor configured to detect the presence of the vehicle battery connected to the positive and negative polarity vehicle battery connectors.
5. The apparatus according to claim 1, 2 or 3, wherein the vehicle battery isolation sensor detects presence or absence of the vehicle battery prior to any initial connection and is not reliant upon any pre-established connection or operation of the circuit with the positive and negative polarity battery terminal connectors.
6. The apparatus according to claim 1, 2 or 3, wherein the positive and negative polarity vehicle battery terminal connectors comprise a positive polarity battery clamp and a negative polarity battery clamp.
7. The apparatus according to claim 1, 2 or 3, wherein the positive and negative polarity vehicle battery terminal connectors comprise a positive polarity battery clamp connected to a positive polarity battery cable and a negative polarity battery clamp connected to a negative polarity battery cable.
8. The apparatus according to claim 1, 2 or 3, further comprising an output port having positive and negative polarity outputs, the output port being configured to connect with a single removable plug, the single plug being connected to the positive and negative polarity cables.
9. The apparatus according to claim 1, 2 or 3, wherein the power supply comprises a lithium ion battery.
10. The apparatus of claim 9, wherein the lithium ion battery comprises a battery pack of multiple lithium ion batteries.
11. The apparatus of claim 1, 2 or 3, wherein the power switch comprises a plurality of FETs in parallel.
12. The apparatus of claim 1, 2 or 3, wherein the vehicle isolation sensor and reverse polarity sensor comprise optically coupled isolator phototransistors.
13. The apparatus of claim 1, 2 or 3, further comprising a plurality of power diodes coupled between the positive and negative polarity vehicle battery terminal connectors and the power supply to prevent back-charging of the power supply from an electrical system connected to the positive and negative polarity vehicle battery terminal connectors.
14. The apparatus of claim 1, 2 or 3, further comprising a temperature sensor configured to detect temperature of the power supply and to provide a temperature signal to the microcontroller.
15. The apparatus of claim 1, 2 or 3, further comprising a voltage measurement circuit configured to measure output voltage of the power supply and to provide a voltage measurement signal to the microcontroller.
16. The apparatus of claim 1, 2 or 3, further comprising a voltage regulator configured to convert output voltage of the power supply to a voltage level appropriate to provide operating power to electrical components of the apparatus.
17. The apparatus of claim 1, 2 or 3, further comprising a USB output port configured to provide charging power from the power supply to a USB-chargeable device.
18. The apparatus of claim 1, 2 or 3, further comprising a USB charging port configured to provide charging power from an external power source to the power supply.
19. The apparatus of claim 1, 2 or 3, further comprising a flashlight circuit configured to provide a source of light to a user.
20. The apparatus of claim 19, wherein the source of light is at least one LED.
21. The apparatus of claim 19, wherein the microcontroller is configured to control the at least one LED to provide a visual alarm indicating an emergency situation.
22. The apparatus of claim 1, 2 or 3, further comprising a plurality of visual indicators configured to display remaining capacity status of the power supply.
23. The apparatus of claim 22, wherein said plurality of visual indicators comprises a plurality of LEDs providing output light of different colors.
24. The apparatus of claim 1, 2 or 3, further comprising a visual indicator configured to warn a user when a vehicle battery is connected with reverse polarity.
25. The apparatus of claim 1, 2 or 3, further comprising separate visual indicators configured to display the power on status of the apparatus, and the jump start boost power status of power supplied to the positive and negative polarity vehicle battery terminal connectors
26. The apparatus of claim 1, 2 or 3, further comprising a manual override switch configured to activate a manual override mode to enable a user to connect jump start power to charge the vehicle battery when the vehicle battery isolation sensor is unable to detect presence of the vehicle battery.
27. The apparatus of claim 26, wherein said microcontroller is configured to detect actuation of the manual override switch for at least a predetermined period of time before activation of the manual override mode.
28. The apparatus of claim 1, 2 or 3, further comprising a jumper cable device including a plug configured to plug into an output port of the apparatus, a pair of battery cables integrated with the plug at one respective end thereof and being configured to be connected to terminals of the vehicle battery at another respective end thereof.
29. The apparatus of claim 28, wherein the jumper cable device further comprises a pair of ring terminals configured to respectively connect the pair of battery cables at another end thereof with either the positive and negative polarity vehicle battery terminals or the positive or negative polarity battery clamps.
30. The apparatus of claim 28, wherein the output port and the plug are dimensioned so that the plug will fit into the output port only in one specific orientation.
ANNEXURE B: AU223 CLAIMS
1. A jump starter apparatus for boosting or charging a depleted or discharged battery having a positive battery terminal and a negative battery terminal, the apparatus comprising:
a power supply;
a positive battery connector for connecting the jump starter apparatus to the positive battery terminal of the depleted or discharged battery;
a negative battery connector for connecting the jump starter apparatus to the negative battery terminal of the depleted or discharged battery;
a power switch connected in circuit with the power supply and the positive and negative battery connectors, the power switch configured to turn power on or off from the power supply to the positive and negative battery connectors;
a control system or circuit connected to and controlling the power switch, the control system or circuit configured to detect presence of the depleted or discharged battery when connected between the positive and negative battery connectors and to detect polarity of the depleted or discharged battery when connected between the positive and negative battery connectors;
wherein the control system or circuit switches on the power switch to connect the power supply to the depleted or discharged battery only when the depleted or discharged battery is present and properly connected between the positive and negative battery connectors and the depleted or discharged battery is properly connected with a correct polarity between the positive and negative battery terminals.
2. The apparatus according to claim 1, wherein the control system or circuit does not switch on the power switch to connect the power supply to the depleted or discharged battery when the control system or circuit detects either that (i) the depleted or discharged battery is absent or not connected between the positive and negative battery connectors or (ii) the depleted or discharged battery is not connected with a correct polarity between the positive and negative battery terminals.
3. The apparatus according to claim 1, wherein the control system or circuit is configured to detect presence of the depleted or discharged battery when connected between the positive and negative battery connectors and to detect polarity of the depleted or discharged battery when connected between the positive and negative battery connectors prior to turning power on from the power supply to the depleted or discharged battery.
4. The apparatus according to any one of the preceding claims, wherein the control system or circuit comprises a microcontroller configured for providing an output controlling the power switch.
5. The apparatus according to claim 4, wherein the microcontroller receives input from one or more sensors configured to detect presence of the depleted or discharged battery when connected between the positive and negative battery connectors and to detect polarity of the depleted or discharged battery when connected between the positive and negative battery connectors.
6. The apparatus according to claim 5, wherein the one or more sensors includes one sensor configured to detect presence of the depleted or discharged battery when connected between the positive and negative battery connectors, and another sensor configured to detect polarity of the depleted or discharged battery when connected between the positive and negative battery connectors
7. The apparatus according to claim 5 or claim 6, wherein the one or more sensors comprises one or more sensing circuits.
8. The apparatus according to any one of claims 4 to 7, wherein the microcontroller switches the power switch on to provide power from the power supply to the depleted or discharged battery only when the depleted or discharged battery is determined by the microcontroller to be present and connected with the correct polarity.
9. The apparatus according to any one of claims 4 to 8, wherein the microcontroller is a programmable microcontroller configured to allow updates in functionality and system parameters.
10. The apparatus according to claim 9, wherein the programmable microcontroller comprises a memory.
11. The apparatus according to any one of the preceding claims, wherein the positive battery connector comprises a positive battery cable and the negative battery connector comprises a negative battery cable, and wherein the positive battery cable comprises a positive battery clamp and the negative battery cable comprises a negative battery clamp.
12. The apparatus according to any one of the preceding claims, wherein the power supply comprises a lithium ion battery disposed within the jump starting apparatus, and wherein the lithium ion battery comprises a battery pack comprising multiple lithium ion batteries.
13. The apparatus according to any one of the preceding claims, wherein the power switch comprises a plurality of FETs arranged in parallel.
14. The apparatus according to claim 6, or any one of claims 7 to 13 when appended to claim 6, wherein the one sensor is a depleted or discharged battery presence sensor and the other sensor is a reverse polarity sensor.
15. The apparatus according to claim 14, wherein the presence sensor and the reverse polarity sensor comprise optically coupled isolator phototransistors.
16. The apparatus according to any one of the preceding claims, further comprising a USB charging port configured to provide charging power from an external power source to the power supply.
17. The apparatus according to claim 16, further comprising a USB charging circuit connecting the USB charging port to the power supply.
18. The apparatus according to claim 17, wherein the USB charging circuit comprises a DC-DC converter.
19. The apparatus according to claim 18, wherein the DC-DC converter is configured to convert 5V potential provided from a USB charger to 12.4VDC
20. The apparatus according to claim 18 or 19, wherein the DC-DC converter is configured to be turned on and off via a circuit by an output from a microcontroller.
21. A jump starter apparatus for boosting or charging a depleted or discharged battery having a positive battery terminal and a negative battery terminal, the apparatus comprising:
a power supply;
a positive battery connector for connecting the jump starter apparatus to the positive battery terminal of the depleted or discharged battery;
a negative battery connector for connecting the jump starter apparatus to the negative battery terminal of the depleted or discharged battery;
a power switch connected in circuit with the power supply and the positive and negative battery connectors, the power switch configured to turn power on or off from the power supply to the positive and negative battery connectors;
a control system or circuit connected to and controlling the power switch, the control system or circuit configured to detect presence of the depleted or discharged battery when connected between the positive and negative battery connectors and to detect polarity of the depleted or discharged battery when connected between the positive and negative battery connectors;
wherein the control system or circuit switches on the power switch to cause the power supply to be connected to the depleted or discharged battery when, and only when, the depleted or discharged battery is present and properly connected between the positive and negative battery connectors and the depleted or discharged battery is properly connected with a correct polarity between the positive and negative battery terminals.
ANNEXURE C: Figures 2A
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