David Leigh Wake v Cavitus Pty Ltd - [2010] APO 11

ABSTRACTS OF DECISIONS
DECISION OF A DELEGATE OF THE COMMISSIONER OF PATENTS
Application : No. 2005200778 in the name of CAVITUS PTY LTD

Title: An Apparatus and Method of Ultrasonic Cleaning and Disinfection

Action: Requests under sections 32 and 36 of the Patents Act by DAVID LEIGH WAKE

Decision: Issued 29 July 2010
Abstract

It was found that the requestor did not devise the invention as described and claimed, either alone or jointly.
Although the evidence established that the idea of inserting a single sonotrode through the standard bung hole of an oak wine barrel to effect ultrasonic cleaning and disinfection of the barrel most likely originated with the requestor, this idea was not integral to what the evidence referred to as the “sheath concept” which underpinned the subject invention.
PATENTS ACT 1990
DECISION OF A DELEGATE OF THE COMMISSIONER OF PATENTS
Re:Patent Application No. 2005200778 in the name of Cavitus Pty Ltd, and requests under sections 32 and 36 of the Patents Act by David Leigh Wake

BACKGROUND

Patent application 2005200778 (the present application) was filed on 22 February 2005 by Cavitus Pty Ltd (Cavitus) claiming priority from provisional application 2005900531 filed on 8 February 2005. The present application names Darren M Bates, Andrew Sin Ju Yap, Arthur R McLoughlin and William A Wright as co-inventors.
On 15 April 2009, requests under sections 32 and 36 were filed by David Leigh Wake (Wake) claiming sole ownership of the invention disclosed in the present application. Wake concurrently filed a notice of opposition to innovation patent 2008100881 in the name of Soniclean Pty Ltd (the Soniclean opposition). The only ground pursued by Wake in the Soniclean opposition again relates to ownership. On 19 October 2009, all parties were advised that in view of these circumstances “the Commissioner has decided that she will have regard to the evidence from both matters when deciding each matter” and that “each party be given an opportunity to consider the evidence of the other matter to decide whether they will supply further evidence in their matter”.
After an exchange of evidence in support and evidence in response, the present dispute was heard in Canberra on 29 April 2010. Cavitus were represented by Dr Donald Angus of Collison & Co. Wake declined to appear at the hearing, but filed written submissions as did Dr Angus. Mr Arthur McLoughlin (apparently known as “Richard”), one of the named inventors, and Mr Julian Smith, the Managing Director of Soniclean, were also present as observers.
THE SPECIFICATION
The specification filed in respect of the present application indicates that the invention relates generally to ultrasonics and, more specifically, to the cleaning of containers and in particular wine barrels.
The specification explains that the practice of recycling wine barrels by way of cleaning is used extensively within the wine industry. However, bacterial and yeast contaminations resulting from incomplete cleaning costs the wine industry vast amounts each year in spoilt wine. Furthermore, the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read David Leigh Wake v Cavitus Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] APO 11
Decision Date: 29 July 2010

CaseChat Overview and Summary

This case involved a dispute between Cavitus Pty Ltd and David Leigh Wake regarding the ownership of an invention relating to an ultrasonic apparatus and method for cleaning and disinfecting wine barrels. The dispute was resolved by a Delegate of the Commissioner of Patents. The court found that while Wake may have originated the idea of inserting a single sonotrode through the standard bung hole of a wine barrel to effect ultrasonic cleaning and disinfection, this idea was not integral to the invention as described and claimed in the patent application. The invention as described and claimed in the patent application was underpinned by the “sheath concept” which separated the first and second liquids, and this concept was not conceived by Wake. The court found that Wake did not make any contribution to the conception of the invention that had a material impact or led to a result or advantage not originally contemplated. Therefore, Wake was not entitled to the grant of a patent on the present application. The court declared that Cavitus were the sole eligible person in relation to the subject invention and determined that the present application was to continue to proceed in the name of Cavitus. The court awarded costs under schedule 8 against Wake, noting that the only costs applicable were those relating to the hearing itself.

Orders