Concrete Preservation Technologies v Vector Corrosion Technologies

[2013] APO 71

IP AUSTRALIA

AUSTRALIAN PATENT OFFICE

Concrete Preservation Technologies v Vector Corrosion Technologies [2013] APO 71

Patent Application:                2005238278

Title:Sacrificial Anode Assembly

Patent Applicant:                   Vector Corrosion Technologies

Opponent:  Concrete Preservation Technologies

Delegate:  Dr SD Barker

Decision Date:  20 December 2013

Hearing Date:  Written Submissions completed on 3 October 2013

Catchwords:  PATENTS – opposition to amendments – amendments not allowable – costs awarded against applicant

Representation:  Patent applicant:  IP Gateway Patent and Trademark Attorneys Pty Ltd

Opponent: Baxter IP

IP AUSTRALIA

AUSTRALIAN PATENT OFFICE

Patent Application:                2005238278

Title:Sacrificial Anode Assembly

Patent Applicant:                   Vector Corrosion Technologies

Date of Decision:                   20 December 2013

DECISION

The opposition succeeds –  the proposed amendment is not allowable.

Costs according to Schedule 8 awarded against Vector Corrosion Technologies.

REASONS FOR DECISION

1. AU 2005238278 is an Australian patent (the patent) accepted on 12 January 2010 and sealed on 27 May 2010. The patent is derived from PCT application PCT/GB2005/001651 and claims priority from UK patent application GB 0409521.2.

2. On 17 November 2011 IP Australia recorded an assignment of the patent in favour of Vector Corrosion Technologies Ltd (the patentee).  On 18 November 2011 the patentee filed a request to amend the specification and a statement of proposed amendments (the amendments) which would replace the claim set as filed.

3. On 4 April 2012 Concrete Preservation Technologies Ltd (the opponent) filed a notice of opposition to the amendments.  The opponent thereafter filed a Statement of Grounds and Particulars on 4 July 2012.  The evidentiary stages were completed incorporating the following:

   • Evidence in Support consisting of a statutory declaration by Gareth K Glass dated 2 October 2012;
   • Evidence in Answer consisting of a statutory declaration by John S Tinnea dated 26 March 2013 with exhibit JT-1;
   • Evidence in Reply consisting of a second statutory declaration by Gareth K Glass dated 31 May 2013 with exhibits [A1]-[A6].

4. The hearing occurred via written submissions.  Each party filed submissions on 5 September 2013 and submissions in response on 3 October 2013.

   The amendments

5. The amendments result in a change to the text of claim 14, the deletion of claim 25 and the addition of new independent claims 27 to 31.  Claim 14 as accepted is set out below:

   A method of cathodically protecting a metal section in an ionically conductive covering material, comprising:

   providing a sacrificial anode;

   generating a voltage between two connections of a power supply such that current can flow between the negative connection and the positive connection;

   in a first protection step, electrically connecting one of the connections of the power supply to the metal section to be cathodically protected and electrically connecting the sacrificial anode in series with the other connection of the power supply such that the voltage generated by the power supply is added to the voltage generated between the sacrificial anode and the metal to produce a voltage greater than the galvanic voltage generated between the sacrificial anode and the metal section alone;

   wherein the power supply is otherwise isolated from the environment such that current can only flow into and out of the power supply via the sacrificial anode and the connector;

   and, in a second protection step, the voltage generated by the power supply is no longer present and a current flows between the sacrificial anode and the metal to continue protecting and/or passivating the metal section, where the current is generated solely by the galvanic voltage between the sacrificial anode and the metal.

6. The amendments to claim 14 involve incorporation of the features of previous claim 25, wherein the defined ionically conductive material is a concrete or mortar material and the defined metal is a steel reinforcing member, and addition of the definite article “the” prior to the second use of the word current.  Claim 14 as proposed to be amended is shown below in marked up form:

   A method of cathodically protecting steel reinforcement a metal section in an ionically conductive concrete or mortar covering material, comprising:

   providing a sacrificial anode;

   generating a voltage between two connections of a power supply such that current can flow between the negative connection and the positive connection;

   in a first protection step, electrically connecting one of the connections of the power supply to the steel reinforcement metal section to be cathodically protected and electrically connecting the sacrificial anode in series with the other connection of the power supply such that the voltage generated by the power supply is added to the voltage generated between the sacrificial anode and the steel reinforcement metal to produce a voltage greater than the galvanic voltage generated between the sacrificial anode and the steel reinforcement metal section alone;

   wherein the power supply is otherwise isolated from the environment such that the current can only flow into and out of the power supply via the sacrificial anode and the connector;

   and, in a second protection step, the voltage generated by the power supply is no longer present and a current flows between the sacrificial anode and the steel reinforcement metal to continue protecting and/or passivating the steel reinforcement metal section, where the current is generated solely by the galvanic voltage between the sacrificial anode and the metal.

7. The new claims 27 – 31 each bear resemblance to claim 14 (before amendment).  In order to understand the nature of these claims, I have summarised the main differences between claim 14 (before amendment) and the new claims 14 and 27 – 31 in Table 1.  This is necessarily a simplification, and does not take the place of the claims which are reproduced in the Annex at the end of this decision.

   Table 1:  Summary of differences between claim 14 (before amendment) and new claims 14 and 27 - 31

Feature	Claim 14 (before amendment)	Claim 14 (after amendment)	Claim 27	Claim 28	Claim 29	Claim 30	Claim 31
What is protected	a metal section	steel reinforcement	steel reinforcement	steel reinforcement	steel reinforcement	steel reinforcement	steel reinforcement
The covering material	not specified	concrete or mortar	concrete or mortar	concrete or mortar	concrete or mortar	concrete or mortar	concrete or mortar
Anode surrounded by	not specified	not specified	not specified	Encapsulating material	Porous material	not specified	not specified
First protection step	"so as to passivate the steel reinforcement"	"so as to passivate the steel reinforcement"	"so as to passivate the steel reinforcement"	"so as to passivate the steel reinforcement"
Current	not specified	"the" current	"the" current	"the" current	"the" current	"the" current	"the" current
Second protection step	Delete "and/or passivating"	Delete "and/or passivating" Add "the sacrificial anode remains active"	Delete "and/or passivating" Add "the sacrificial anode remains active"	Delete "and/or passivating" Add "the sacrificial anode remains active" Add activation detail	Delete "and/or passivating" Add "the sacrificial anode remains active" Add temporary impressed current detail

1. Amendments were also made to claims 4 and 5 as discussed below.

   Grounds of the opposition

2. The grounds of the opposition are that, as a result of the amendments:

   ·     Claims 14 and 27-31 claim matter not in substance disclosed in the specification as filed (sub‑s 102(1);

   ·     Claims 14 and 27-31 do not in substance fall within the scope of the claims of the specification before amendment (sub-s 102(2)(a));

   ·     Claims 4, 5, 14 and 27-31 do not comply with sub-ss 40(2) or (3) (sub-s 102(2)(b)).

   The relevant law

3. Section 102 of the Patents Act (the Act) governs the allowability of amendments.  It relevantly provides:

   (1)An amendment of a complete specification is not allowable if, as a result of the amendment, the specification would claim matter not in substance disclosed in the specification as filed.

   (2)An amendment of a complete specification is not allowable after the relevant time if, as a result of the amendment:

   (a)   a claim of the specification would not in substance fall within the scope of the claims of the specification before amendment; or

   (b)    the specification would not comply with subsection 40(2) or (3).

4. As set out in sub-s 102(2A) the “relevant time” is after the specification has been accepted. Therefore, as the present specification had been accepted (and sealed) when the amendments were requested, the requirements of sub-s 102(2) apply.

5. Relevant principles applying to sub-ss 102(1) and (2) are conveniently laid out by Yates J in Bristol-Myers Squibb Company v Apotex Pty Ltd [2010] FCA 814 at [38] – [40]:

   "38.  Consideration of the prohibition in s 102(1) of the Act requires a comparison between what would be claimed as a result of the proposed amendment and what is disclosed in the specification as filed. The steps involved in this comparison were described in RGC Mineral Sands Pty Ltd v Wimmera Industrial Minerals Pty Ltd (1998) 89 FCR 458 at 466C-E. As there emphasised, the key point is that the words'“as a result of the amendment' in s 102(1) are not to be confused with the expression 'after the amendment'. The amendment is identified by considering the specification as it stands with how it would stand after the proposed amendment. It is only by that step that one can determine what matter results from the amendment. Once that is determined, the next step is to read the specification as a whole (that is, amended in the manner proposed) and to compare it with what is 'in substance disclosed' in the specification as filed. If by reason of the amendment proposed, and for no other reason, the specification would then claim matter not in substance disclosed in the specification as filed, the amendment would not be allowable.

   39.  As to the notion 'in substance disclosed', the Full Court in ICI Chemicals & Polymers Ltd v The Lubrizol Corporation Inc (2000) 106 FCR 214 at [118] referred to the close relationship between that notion and the test for fair basis, saying that it would be a rare case where a claim which claims matter in substance disclosed in the specification as filed is not, equally, fairly based on the matter described in the specification: see also Gambro Pty Ltd v Fresenius Medical Care South East Asia Pty Ltd (2000) 49 IPR 321 at [18] where the two requirements were said to be 'very similar' . In Ethyl Corporation’s Patent [1972] RPC 169 at 195, Lord Denning MR said that the requirements were 'virtually the same', although in Lubrizol the Full Court thought it unnecessary to go that far. It is thus expedient to test whether matter is 'in substance disclosed' in the specification as filed by asking whether there is a 'real and reasonably clear disclosure' of that matter.

   40.  Consideration of the prohibition in s 102(2)(a) requires a comparison between the proposed new claims and the claims of the specification immediately before amendment. Once again the prohibition is conditioned on a state of affairs existing as a result of the amendment, namely that a claim would not in substance fall within the scope of the claims before amendment. Thus the identification of the amendment is, once again, an important first step. Moreover, the reference to 'within the scope of the claims' before amendment is significant. The comparison is not between a particular amended claim and that claim before amendment. The expression 'within the scope of the claims' directs attention to all the claims. For this reason a practical test is to ask whether an amendment makes anything an infringement which would not have been an infringement before the amendment. If the answer is 'yes', the amendment is proscribed by s 102(2)(a) of the Act: AMP Incorporated v The Commissioner of Patents (1974) 3 ALR 283 at 289-290; Fina Research SA v Halliburton Energy Services Inc (No 2) (2003) 127 FCR 561 at [29]; W J Voit Rubber Corp’s Application, Re (1965) AOJP 1752 at 1754-1755. "

   The opponent’s submissions

6. The opponent submits that insertion of each of the following in the amended claims gives rise to one or more grounds of non-allowability under s 102:

   • The introduction of five further independent claims;
   • The inclusion of a “second protection step” in claims 27-31;
   • The removal of “a” in claim 4 and “to” in claim 5;
   • The addition of the definite article “the” prior to “current” in claims 14 and 27-31;
   • The inclusion of an activation step in claim 30;
   • The requirement that the first protection step provides a “temporary impressed current” in claim 31.

7. I will address each of these issues, and grounds of the opposition that they raise, in turn below.

   The introduction of five further independent claims

   Does the introduction of five further independent claims give rise to a lack of succinctness under sub-s 40(3)?

8. The amendments increase the number of claims from 27 to 31 and the number of independent claims from 2 to 7.  The opponent submits that the increase in claims, and increase in independent claims in particular, gives rise to a lack of succinctness.  However, as noted by Hely J in Doric Products Pty Ltd v Lockwood Security Products Pty Ltd [2001] FCA 1877 (paragraphs [261] and [262]), multiple claims and independent claims have long been a feature of patent law and the mere existence of a multitude of claims does not establish that the claims are not clear and succinct. While there are several claims of similar scope, in this case I do not consider that it gives rise to a lack of succinctness. It follows that the question is answered no, and that is aspect of the amendment is allowable.

   Inclusion of a “second protection step” in claims 27-31

   Does inclusion of a “second protection step” mean that claims 27-31 are, as a result of the amendments, not fairly based under s 40(3)?

9. The opponent submitted that claims 27-31 are each a new independent claim and, accordingly, all features of these new claims are “as a result of the amendments”.  As stated in Bristol‑Myers Squibb v Apotex at [38]

   “the prohibition in s 102(1) of the Act requires a comparison between what would be claimed as a result of the proposed amendment and what is disclosed in the specification as filed  ...  If by reason of the amendment proposed, and for no other reason, the specification would then claim matter not in substance disclosed in the specification as filed, the amendment would not be allowable.”

   The correct comparison therefore requires identification of matter claimed as a result of the proposed amendment.  Whether a claim is itself newly introduced is only significant insofar as it may introduce new matter.

10. The opponent noted that amended claims 27 – 31 explicitly recite a second protection step in which the voltage generated by the cell is no longer present and submitted that the specification as filed includes no description of this feature.  The relevant comparison is with the claims prior to the amendment.  It is apparent from claim 14 before amendment that it includes a second protection step in similar terms.  As such, whilst this matter would be claimed in the amended claims, it would not be claimed “by reason of the amendment proposed, and for no other reason”.  It follows that this aspect of the amendment is allowable.  It is not necessary to consider the applicant's submissions that the second protection step is implied in the disclosure at page 4 of the specification as filed.

    Does inclusion of a “second protection step” mean that claims 27 – 31 are, as a result of the amendments, not fully described under s 40(2)?

11. The opponent further submitted inclusion of a second protection step in claims 27 – 31 resulted in the claims lacking full description under sub-s 40(2).  Again however, I note that this feature is not claimed “by reason of the amendment proposed, and for no other reason”.  It follows that this aspect of the amendment is allowable.

    The removal of “a” in claim 4 and “to” in claim 5

    Does the removal of “a” in claim 4 and “to” in claim 5 give rise to a lack of clarity under sub‑s 40(3)?

12. The amendments introduce errors into claims 4 and 5 and that are not present in the existing claims.  Claim 4 would read "in the shape of generally cylindrical can" (the word "a" should appear after "of") and claim 5 would read "An assembly according any one of" (the word "to" should appear after "according").  These are clear typographical errors that do not give rise to any unresolvable construction issues.

    The addition of the definite article “the” prior to “current” in claims 14 and 27 – 31

    Does addition of the definite article “the” prior to “current” mean that, as a result of the amendment, claims 14 and 27 – 31 would not in substance fall within the scope of the claims before amendment?

13. It is argued by the opponent that this change has a profound effect on the claim breadth, as previously all current had to flow via the sacrificial anode and the connector, whereas after amendment only the current that flows as result of the voltage generated between the negative and positive connections had to flow in this way.  This is because the inclusion of the definite article “the” indicates that the current thereafter defined is particular, in the sense that it is the current that was previously mentioned, and not merely current in the general sense.

14. Are the requirements of amended claims 14 and 27 – 31 different from those of the pre-existing claims so as to make anything an infringement which would not have been an infringement before the amendment?  I consider that they are.  Gareth K Glass, in his evidence in reply, provided the following diagram demonstrating a scenario which would potentially infringe amended claims 14 and 27 – 31, whilst not infringing the pre-existing claims:

15. The diagram illustrates a connection between the steel (a) to be protected and a cell (c), (d), (e) exemplifying the defined power supply.  In the diagram a first connection is shown in which current flows between cell anode (c) and the cell cathode (e) via the connector (b) and the sacrificial anode (f).  A “parallel connection” is also demonstrated in which current may flow from the cell electrolyte (d) directly to the system electrolyte (i.e. the ionically conductive concrete or mortar) without flowing via the cell cathode (e) or the sacrificial anode (f).  A system incorporating this “parallel connection” would fall outside the scope of the claims as accepted and yet may fall within the scope of amended claims 14 and 27-31.  In its submissions the applicant referred to amended claims 14 and 27-31 defining the power supply as “otherwise isolated from the environment”.  The applicant submitted that inclusion of the word “otherwise” means the cell must be isolated from the environment other than via specifically recited or permitted connections.  I find this submission unpersuasive because it does not account for how the expression “such that” is used to clarify what is meant by “isolated”.

    Does addition of the definite article “the” prior to the word “current” mean that, as a result of the amendment, claims 14 and 27 – 31 would claim matter not in substance disclosed in the specification as filed?

16. The specification as filed discloses a device in which the power supply is isolated from the environment such that current can only flow into and out of the power supply via the sacrificial anode and the connector. Such a requirement is defined in independent claims 1 and 14 of the claims before amendment, as well as in the body of the specification. Page 7 lines 1 – 4 of the specification set out:

    “The cell in the assembly is isolated from the environment, other than to the extent that attached to the connector and the sacrificial anode makes necessary; this may be achieved by the use of any suitable isolating means around the cell.”

1. Further down page 7, at lines 20 – 23, the specification notes (in reference to a preferred embodiment):

   “The remaining areas of the cell that are not covered by the sacrificial anode and that are not covered by their contact with the connector are of course isolated from the environment by isolating means.”

2. The specification describes a power supply that is otherwise isolated from the environment such that current can only flow into and out of the power supply via the sacrificial anode and the connector.  For reasons set out above I found that claims 14 and 27 – 31 are not limited to a power supply so isolated.  Such being the case I find that claims 14 and 27 – 31 travel beyond what is disclosed in the specification as filed.

   The inclusion of an activation step in claim 30

   Does inclusion of an activation step in claim 30 result in that claim defining matter not in substance disclosed in the specification as filed?

3. Claim 30 defines that:

   “wherein, in the second protection step, the sacrificial anode is activated to ensure continued corrosion of the sacrificial anode.”

   I construe this feature to define that activation of the anode occurs during the second protection step. It is clear that the activation does not involve taking the sacrificial anode from an inactive state to active but rather relates to ensuring the sacrificial anode continues to corrode.  

4. This feature of claim 30 bears similarity to claim 21 as accepted, which defines the method of claim 14 with the added feature of “wherein the sacrificial anode is activated to ensure continued corrosion of the sacrificial anode”.  The additional feature in the proposed claim 30 is that the sacrificial anode is activated “in the second protection step”.

5. Use of activators to ensure continued corrosion of the sacrificial anode is discussed at page 8 lines 15-27 of the specification as filed. Page 8 lines 15-21 state:

   “Preferably the anode assembly is surrounded by an encapsulating material containing activators to ensure continued corrosion of the sacrificial anode, for example an electrolyte that in solution has a pH sufficiently high for corrosion of the sacrificial anode to occur and for passive film formation on the sacrificial anode to be avoided when the anode assembly is cathodically connected to the material to be cathodically protected by the anode assembly.”

6. The specification notes at page 7 line 30 to page 8 line 5 that encapsulation of the anode assembly can occur by either pre-casting encapsulating material around the anode assembly prior to installation or by deploying the encapsulating material to embed the cathode assembly in its intended position within a concrete structure.  The specification therefore discloses a process wherein the sacrificial anode is activated upon installation and would conceivably remain activated while the activators and the sacrificial anode are present.  It is further conceivable that the activators would remain present beyond the defined first stage.

7. Claim 30 defines a process wherein the sacrificial anode is activated in the second and may be, but is not necessarily, activated in the first stage.  On this point the applicant submitted the following:

   “First, claim 30 does not necessarily restrict the use of an activator to the second step.  It simply requires that the activator is present in the second step.

   The High Court's ruling in Ethyl Corporation's Patent [1971] RPC 169 in relation to the allowability of amendments provides the basis for considering the allowability of amendments. The High Court ruled that the section should be construed in a 'broad and common sense way' and should be given a liberal interpretation. Further the High Court held that 'disclosed in substance' means either expressly disclosed or impliedly disclosed. Impliedly disclosed means either disclosed by mathematical information or that it would be implied by the expert reader.

   There may be no explicit disclosure that activation may only be in the second step.  On the other hand there is nothing in the specification as filed that excludes this from the description.  A person of skill in the art would understand that activation of the sacrificial anode could occur at any suitable time.”

8. I disagree with the applicant’s last raised submission.  Reviewing the specification as a whole it is apparent that what is in substance disclosed is a process wherein activators are provided with the sacrificial anode at or before installation of the anode assembly.  There is no disclosure, express or inferred, that would lead a person skilled in the art to understand that activation could occur in the second step without having necessarily continued from the first step.  This feature of claim 30 is not in substance disclosed in the specification as filed.  This question is answered yes.

   Does inclusion of an activation step in claim 30 result in that claim defining matter not fairly based on the matter described in the specification?

9. The opponent also submitted inclusion of the activation step in claim 30 resulted in the claim lacking fair basis under sub-s 40(3).  For analogous reasons to the above I consider that claim 30 lacks fair basis, and this question is also answered yes.

   Does inclusion of an activation step in claim 30 result in that claim defining matter that is not fully described?

10. The opponent further submitted that inclusion of the activation step in claim 30 resulted in the claim not being fully described under sub-s 40(2).  It follows from what I have said above that that there is not a full description of claim 30 as proposed to be amended.  It follows that this question is also answered yes.

    The requirement that the first protection step provides a “temporary impressed current” in claim 31

    Does defining that the first protection step provides a “temporary impressed current” in claim 31 result in that claim defining matter not in substance disclosed in the specification as filed?

11. The opponent firstly submitted that “temporary” current treatment is an entirely different process to cathodic protection and includes the treatments of chloride extraction and re-alkalisation. Therefore, because this form of processing is not in substance disclosed, the amendment is not allowable. I consider that the person skilled art, reviewing use of the term in its context, would understand that this form of treatment is not intended and that “temporary” is being used in its everyday sense to mean “not permanent”.

12. The opponent secondly submitted that “impressed current” has a known meaning wherein the power source supplying current to the circuit is “external”.  The opponent refers to page 1 lines 13 and 14, which state:

    “One such known type of system for cathodic protection is the impressed current system, which makes use of an external power supply, either mains or battery, to apply current to the metal section to be protected so as to make it cathodic.”

13. Upon reviewing the evidence my understanding is that the traditional usage of “impressed current system” relates to a system incorporating an external power source such as a rectifier or battery which imparts (i.e. “impresses”) a voltage difference upon the system such that an inert or semi-inert electrode is made anodic and the material to be protected is made cathodic.  It appears to me that the term “external power supply” relates to a power source that is external to the system whilst not necessarily being external from the structure comprising the system.  Therefore a power supply that is embedded in concrete forming part of the system, but is nevertheless electrically isolated from the concrete, is in the practical sense external to the system.

14. I note that an “impressed current system” as defined above is not in substance disclosed in the specification on hand.  Neither is such a system is defined in the amended claim 31. The claim explicitly sets out that the anode is a sacrificial anode and is neither inert nor semi-inert.  As a result the person skilled in the art would understand that system defined is not an “impressed current system” in the strict sense.  Nevertheless the person skilled in the art would understand that the power source impresses an additional voltage difference upon the system such that an “impressed current” supplements the galvanic current flowing between the anode and the cathode. In this sense the inclusion of the defined feature appears to add little over the previously defined first protection step wherein the voltage generated by the power supply is added to the galvanic voltage generated between the sacrificial anode and the steel reinforcement.

15. The inclusion of the defined feature:

    “wherein the first protection step provides a temporary impressed current which is a high current treatment relative to the low current preventative treatment of the second step”

    does not result in that claim defining matter not in substance disclosed in the specification as filed.  Rather, the amended claim defines, and the specification as filed discloses, a system wherein current provided by a power source (e.g. a cell) temporarily (i.e. while the battery has charge) provides additional voltage difference to the sacrificial anode system.  The answer to the question is no.

    Does defining that the first protection step provides a “temporary impressed current” in claim 31 result in that claim defining matter not fairly based on the matter described in the specification?

16. The opponent also submitted that inclusion of the above feature resulted in claim 31 lacking fair basis under sub-s 40(3).  For analogous reasons inclusion of the above feature does not result in claim 31 lacking fair basis.

    Does defining that the first protection step provides a “temporary impressed current” in claim 31 result in that claim defining matter that is not fully described in the specification?

17. The opponent further submitted that inclusion of the above feature resulted in the invention of claim 31 not being fully described under sub-s 40(2).  According to my interpretation of the specification, this question must be answered no.  There is no lack of full description that arises as a result of the amendment.

    Does defining that the first protection step provides a “temporary impressed current” in claim 31 mean that, as a result of the amendment, claim 31 would not in substance fall within the scope of the claims before amendment?

    It follows from what is said above that the answer to this question is no.  The inclusion of this feature, properly understood, does not result in claim 31 claiming matter that was not within the scope of the claims before amendment.

    Conclusion

18. The inclusion of the word “the” before “current” in amended claims 14 and 27-31 means that the claims would not in substance fall within the scope of the claims as filed; and that the subject matter claimed is not in substance disclosed in the specification as filed.   The inclusion of an activation step that occurs in the second step without having necessarily continued from the first step in amended claim 30 means that the subject matter claimed is not in substance disclosed in the specification as filed, and that claim 30 is not fairly based on the matter described in the specification or fully described.  Therefore, the amendment is not allowable.

    Costs

19. The opponent has been successful in its opposition, and I see no reason to depart from the normal conclusion that costs should follow the event.  I will award costs against the applicant.

    Dr SD Barker
    Delegate of the Commissioner of Patents

    ANNEX – CLAIMS AS PROPOSED TO BE AMENDED

    Amended claim 14 (showing additions and deletions).

    A method of cathodically protecting steel reinforcement a metal section in an ionically conductive concrete or mortar covering material, comprising:

    providing a sacrificial anode;

    generating a voltage between two connections of a power supply such that current can flow between the negative connection and the positive connection;

    in a first protection step, electrically connecting one of the connections of the power supply to the steel reinforcement metal section to be cathodically protected and electrically connecting the sacrificial anode in series with the other connection of the power supply such that the voltage generated by the power supply is added to the voltage generated between the sacrificial anode and the steel reinforcement metal to produce a voltage greater than the galvanic voltage generated between the sacrificial anode and the steel reinforcement metal section alone;

    wherein the power supply is otherwise isolated from the environment such that the current can only flow into and out of the power supply via the sacrificial anode and the connector;

    and, in a second protection step, the voltage generated by the power supply is no longer present and a current flows between the sacrificial anode and the steel reinforcement metal to continue protecting and/or passivating the steel reinforcement metal section, where the current is generated solely by the galvanic voltage between the sacrificial anode and the metal.

    New claim 27

    A method of cathodically protecting steel reinforcement in an ionically conductive concrete or mortar covering material, comprising:

    providing a sacrificial anode;

    generating a voltage between two connections of a power supply such that current can flow between the negative connection and the positive connection;

    in a first protection step, electrically connecting one of the connections of the power supply to the steel reinforcement to be cathodically protected and electrically connecting the sacrificial anode in series with the other connection of the power supply such that the voltage generated by the power supply is added to the voltage generated between the sacrificial anode and the steel reinforcement to produce a voltage greater than the galvanic voltage generated between the sacrificial anode and the steel reinforcement alone so as to passivate the steel reinforcement;

    wherein the power supply is otherwise isolated from the environment such that the current can only flow into and out of the power supply via the sacrificial anode and the connector;

    and, in a second protection step, when the voltage generated by the power supply is no longer present and a current flows between the sacrificial anode and the steel reinforcement to continue protecting the steel reinforcement, where the current is generated solely by the galvanic voltage between the sacrificial anode and the metal.

    New claim 28

    A method of cathodically protecting steel reinforcement in an ionically conductive concrete or mortar covering material, comprising:

    providing a sacrificial anode;

    wherein the sacrificial anode is surrounded by an encapsulating material;

    generating a voltage between two connections of a power supply such that current can flow between the negative connection and the positive connection;

    in a first protection step, electrically connecting one of the connections of the power supply to the steel reinforcement to be cathodically protected and electrically connecting the sacrificial anode in series with the other connection of the power supply such that the voltage generated by the power supply is added to the voltage generated between the sacrificial anode and the steel reinforcement to produce a voltage greater than the galvanic voltage generated between the sacrificial anode and the steel reinforcement alone so as to passivate the steel reinforcement;

    wherein the power supply is otherwise isolated from the environment such that the current can only flow into and out of the power supply via the sacrificial anode and the connector;

    and, in a second protection step, when the voltage generated by the power supply is no longer present the sacrificial anode remains active and a current flows between the sacrificial anode and the steel reinforcement to continue protecting the steel reinforcement, where the current is generated solely by the galvanic voltage between the sacrificial anode and the metal.

    New claim 29

    A method of cathodically protecting steel reinforcement in an ionically conductive concrete or mortar covering material, comprising:

    providing a sacrificial anode;

    wherein there is provided at the sacrificial anode a porous material for absorption of corrosion products;

    generating a voltage between two connections of a power supply such that current can flow between the negative connection and the positive connection;

    in a first protection step, electrically connecting one of the connections of the power supply to the steel reinforcement to be cathodically protected and electrically connecting the sacrificial anode in series with the other connection of the power supply such that the voltage generated by the power supply is added to the voltage generated between  the sacrificial anode and the steel reinforcement to produce a voltage greater than the galvanic voltage generated between the sacrificial anode and the steel reinforcement alone so as to passivate the steel reinforcement;

    wherein the power supply is otherwise isolated from the environment such that the current can only flow into and out of the power supply via the sacrificial anode and the connector;

    and, in a second protection step, when the voltage generated by the power supply is no longer present the sacrificial anode remains active and a current flows between the sacrificial anode and the steel reinforcement to continue protecting the steel reinforcement, where the current is generated solely by the galvanic voltage between the sacrificial anode and the metal.

    New claim 30

    A method of cathodically protecting steel reinforcement in an ionically conductive concrete or mortar covering material, comprising:

    providing a sacrificial anode;

    generating a voltage between two connections of a power supply such that current can flow between the negative connection and the positive connection;

    in a first protection step, electrically connecting one of the connections of the power supply to the steel reinforcement to be cathodically protected and electrically connecting the sacrificial anode in series with the other connection of the power supply such that the voltage generated by the power supply is added to the voltage generated between the sacrificial anode and the steel reinforcement to produce a voltage greater than the galvanic voltage generated between the sacrificial anode and the steel reinforcement alone so as to passivate the steel reinforcement;

    wherein the power supply is otherwise isolated from the environment such that the current can only flow into and out of the power supply via the sacrificial anode and the connector;

    and, in a second protection step, when the voltage generated by the power supply is no longer present the sacrificial anode remains active and a current flows between the sacrificial anode and the steel reinforcement to continue protecting the steel reinforcement, where the current is generated solely by the galvanic voltage between the sacrificial anode and the metal;

    wherein, in the second protection step, the sacrificial anode is activated to ensure continued corrosion of the sacrificial anode.

    New claim 31

    A method of cathodically protecting steel reinforcement in an ionically conductive concrete or mortar covering material, comprising:

    providing a sacrificial anode;

    generating a voltage between two connections of a power supply such that current can flow between the negative connection and the positive connection;

    in a first protection step, electrically connecting one of the connections of the power supply to the steel reinforcement to be cathodically protected and electrically connecting the sacrificial anode in series with the other connection of the power supply such that the voltage generated by the power supply is added to the voltage generated between the sacrificial anode and the steel reinforcement to produce a voltage greater than the galvanic voltage generated between the sacrificial anode and the steel reinforcement alone;

    wherein the power supply is otherwise isolated from the environment such that the current can only flow into and out of the power supply via the sacrificial anode and the connector;

    and, in a second protection step, the voltage generated by the power supply is no longer present and a current flows between the sacrificial anode and the steel reinforcement to continue protecting and/or passivating the steel reinforcement, where the current is generated solely by the galvanic voltage between the sacrificial anode and the metal;

    wherein the first protection step provides a temporary impressed current which is a high current treatment relative to the low current preventative treatment of the second step.