EIS GmbH v Novoluto GmbH - [2020] APO 44

IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
EIS GmbH v Novoluto GmbH [2020] APO 44
Patent Application: 2015386680

Title:Stimulation device having an extension

Patent Applicant: Novoluto GmbH

Opponent:EIS GmbH

Delegate:Greg Powell

Decision Date: 2 October 2020

Hearing Date: 19 February 2020, in Canberra

Catchwords: PATENTS – section 59 – opposition to the grant of a patent – novelty – no claims found to lack novelty – inventive step – suitable person skilled in the art – lack of inventive step not established – lack of support – lack of support not established – clarity – lack of clarity not established – utility – no evidence to establish lack of utility – opposition unsuccessful – award of costs

Representation: Counsel for the applicant: Chris Burgess
Patent attorney for the applicant: Edward Quinn of Spruson & Ferguson

Counsel for the opponent: Ben Fitzpatrick
Patent attorney for the opponent: Lars Koch of Pizzeys Patent and Trade Mark Attorneys

IP AUSTRALIA
AUSTRALIAN PATENT OFFICE

Patent Application: 2015386680

Title:Stimulation device having an extension

Patent Applicant: Novoluto GmbH
Date of Decision: 2 October 2020
DECISION

The opposition is unsuccessful. Subject to appeal, I direct that the application proceed to grant.
I award costs, according to Schedule 8, against the opponent, EIS GmbH.
REASONS FOR DECISION

Patent application 2015386680 (“the present application”) was filed on 24 July 2015, as international application PCT/EP2015/067017 in the name of Novoluto GmbH (“the applicant”). The present application entered the national phase in Australia on 5 September 2017. The present application currently claims a priority date of 13 March 2015.
The present application was advertised as accepted on 22 March 2018. A notice of opposition was filed by EIS GmbH (“the opponent”) on 21 June 2018. A statement of grounds and particulars (the “SGP”) was filed on 21 September 2018.
In addition to documents accompanying the SGP, evidence in support (“EIS”) was filed on 18 December 2018. This comprised:
·    a statutory declaration dated 29 November 2018 by Jürgen Klinghardt with supporting exhibit JK-1;
·     a first statutory declaration dated 7 December 2018 by Florian Witt with supporting exhibits FW-1 to FW-3 (“Witt 1”);
·     a second statutory declaration dated 7 December 2018 by Florian Witt with supporting exhibit FW-21 (“Witt 2”); and
·     a third statutory declaration dated 7 December 2018 by Florian Witt with supporting exhibit FW-31 (“Witt 3”)
Evidence in answer (“EIA”) was filed on 1 April 2019. This comprised:
· a statutory declaration dated 29 March 2019 by Dr Debby Herbenick with supporting exhibits DH-1 to DH-2.
Evidence in reply (“EIR”) was filed on 3 June 2019. This comprised:
· a fourth statutory declaration dated 31 May 2019 by Florian Witt with an exhibit labelled FW-4.1 (“Witt 4”).
On 12 May 2020, nearly 3 months after the hearing, the applicant filed a request to amend the patent request of the present application. The effect of the amendment is to convert the present application to an application for a patent of addition of granted Australian patent 2014323661. This amendment has not yet been allowed. As an aside, I note that AU 2014323661 is equivalent to DE 102013110501, and exhibit JK-1 is a decision by the German Patent Office (DPMA) revoking DE 102013110501. However, neither AU 2014323661 nor any family members (including DE 102013110501) is in evidence in this opposition. As such, nothing turns on this amendment, and I will not comment any further.
The invention as described
The present application relates to a stimulation device for erogenous zones having an appendage. The erogenous zone receiving most attention in the specification is the clitoris, and the appendage is most often described as being for insertion in the vagina or anus.
The specification notes (page 1) that the erogenous zones of the human body can be stimulated with a variety of aids, such as vibrators, for applying a stimulus to a particular area of the skin by direct contact, and dildos, for insertion into the human body. The specification also notes that direct stimulation of the clitoris using, for example, a clitoral massage vibrator, can be problematic, as frequent use of a vibrator leads to habituation effects of the clitoris, and the initial use of such a device may require practice. The specification also notes that, on the other hand, indirect stimulation of erogenous zones might be insufficient.
The specification states (page 2) that, for indirect stimulation of erogenous zones, and particularly the clitoris, vacuum devices exist. The negative pressure exerted by this type of device on the clitoris, for example, generates a negative pressure in the clitoris itself resulting in an enlargement of the clitoris and/or stimulation of blood flow in the area. The vascular clitoral engorgement serves both to promote desire by increasing sensitivity and for visual and tactile manipulation. The specification notes that these devices usually have a suction cup for placing on the appropriate area and can have a hand pump. However, the specification notes that the manual operation of the hand pump is often onerous, or annoying, and that long-term, or uninterrupted, application of negative pressure could result in habituation effects, thereby limiting the long-term effectiveness of the device.
The specification refers to electrically driven vacuum pumps and makes reference to WO 2006/058291 and US 6464653. It notes that the WO device has the disadvantageous effect of drawing off vaginal moisture, thus having a drying effect and resulting in contamination of the downstream vacuum arrangement, as vacuum pumps often have dead spaces and/or are difficult to clean. The specification also notes that the WO device serves to treat the blood vessels in the clitoris and not to provide stimulation up to sexual climax. In referring to the US device, the specification notes that the level of vacuum in the suction chamber is manually controlled by covering a control valve with a finger. Given that this requires the user’s attention, the specification indicates that this may be frustrating or distracting under certain circumstances. The specification also states that the US device has the same hygiene and dehydration problems as the WO device.
The specification then states (page 3) that the devices of the prior art have the common disadvantage in the complexity of the arrangements for generating negative or positive pressure and notes that the devices may have problems in respect of hygiene. The specification notes problems with the ease of handling the devices, which are frequently uncomfortable to hold and/or require familiarisation.
The specification further notes (page 4) the disadvantage of habituation effects occurring in the event of long-term, continuous, or frequently recurring, application of negative pressures. It also notes that previous vacuum devices, with their release valves controlling the negative pressure being operated manually, could risk injury in certain circumstances if there is a technical defect in the valve and/or the user operated the device incorrectly.
To address these issues, the applicant developed a stimulation device that generates a cycle of positive and negative pressures that allows indirect stimulation of the erogenous zone (e.g. the clitoris). The exemplary device has two interconnected chambers, where the volume of the first of the chambers is varied to generate temporary positive and negative pressures in the second chamber, as the medium in the chambers (which is usually air, but could also include a liquid medium, such as water or lubricant) flows back and forth between the two chambers. The second chamber is placed over the area to be stimulated.
Figure 3 provides an overview of the construction of the invention:
The device has a first chamber 3 and second chamber 4 connected by an element 5. In use, a drive unit 6 varies the volume of first chamber (in figure 3 this is exemplified by a shaft 61 and cam 62 arrangement). This change in volume alternatively pushes out, and pulls in, the medium existing in the first chamber (usually air), thereby cyclically creating a positive and negative pressure in the second chamber.
This cycle can be generally understood from figures 4–6 (albeit for a first chamber made of resilient material):
The second chamber is placed over the erogenous zone (the clitoris 12 in this example) and the volume (V1, V2, V3) is varied so that air is alternately moved to and from the second chamber. This movement of air provides indirect stimulation in that a part of the device is not placed directly on the clitoris.
The device also has an appendage 8 which could be used as a handle, or as a direct stimulation aid by placing it on, or inserting it into, a body part. The specification indicates that the appendage could be inserted into the female vagina, while stimulation of the clitoris by means of the pressure field according to the invention takes place at the same time. The specification also mentions placing the appendage on a woman’s clitoris while the pressure field generating arrangement stimulates another woman’s clitoris, providing “a versatile applicability of the stimulation device”.
The Opposed Claims
The present application ends with 39 claims. Claims 1 and 21 are directed to a stimulation device, claim 14 is directed to a system having a stimulation device as claimed in claims 1–13, claim 15 is directed to a method of stimulating erogenous zones, claim 18 is directed to a method of stimulating erogenous zones using the device of claims 1–13, and claim 20 is directed to the use of the device of claims 1–13 as a sex toy. Claims 1, 14, 15, 18, 20 and 21 are as follows, but the complete claim set is in the accompanying Annex A:
1 A stimulation device for stimulation of erogenous zones, having:
a pressure field generator for indirect stimulation of the clitoris with:
a first chamber; and
a second chamber having an opening for placing over the clitoris; and
a connection element that connects the first chamber to the second chamber; and
a drive unit that varies the volume of the first chamber such that a stimulating pressure field is generated via the connection element in the second chamber; and
a control device that drives the drive unit, wherein the control device has at least one operating element for setting the modulation of the pressure field; and
a housing in which the pressure field generator and the control device are accommodated; and
an appendage for direct stimulation of the vagina, wherein the appendage takes the form of a dildo that can be inserted into the vagina;
wherein the pressure field generated in the second chamber comprises a pattern of negative and positive pressures, modulated onto normal pressure; and
wherein the first chamber is connected exclusively to the second chamber via the connection element; and
wherein the housing and the appendage are joined to each other and movable with respect to each other for adapting to the human anatomy such that the opening of the second chamber can be placed over the clitoris for indirect stimulation, while the appendage can simultaneously be inserted into the vagina for direct stimulation, so that the area of the body between the clitoris and the vagina can also be stimulated through the combined direct and indirect stimulation.
14A system with a stimulation device as claimed in one of claims 1 to 13, having:
a remote control device arranged separately from the stimulation device,
wherein the control device of the stimulation device can be remotely controlled by the remote control device.
15A method for stimulating erogenous zones for sexual pleasure and not for medical therapy, having the following steps:
inserting an appendage of a stimulation device into a human body; and
forming, by a pressure field generator of the stimulation device, a pressure field directed towards a body part; and
modulating the pressure field in a pattern of negative and positive pressures with respect to normal pressure.
18A method for stimulating erogenous zones for sexual pleasure and not for medical therapy, with the stimulation device as claimed in one of claims 1 to 13, having the following steps:
inserting the appendage into a human body; and
placing the second chamber over the body part;
forming a pressure field directed towards the body part;
modulating the pressure field in a pattern of negative and positive pressures with respect to normal pressure.
20Use of the stimulation device as claimed in one of claims 1 to 13 as a sex toy for stimulating the female clitoris.
21A stimulation device for erogenous zones, comprising:
at least one pressure field generating arrangement with:
at least one first chamber;
at least one second chamber having at least one opening for placing on a body part; and
at least one connection element that connects the at least one first chamber to the at least one second chamber;
a drive unit that varies the volume of the at least one first chamber such that a stimulating pressure field is generated via the at least one connection element in the at least one second chamber;
a control device that activates the drive unit; and
an appendage;
wherein the stimulating pressure field generated in the at least one second chamber comprises a pattern of negative and positive pressures, modulated onto with respect to a reference pressure;
wherein the at least one first chamber is connected to the at least one second chamber solely by the at least one connection element, and
wherein the appendage is a dildo configured to be inserted into a vagina.
Onus and Standard of Proof
The present application is governed by the Patents Act 1990 (“the Act”) as amended by the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 (“the Raising the Bar Act”). Amendments to Sections 7, 40 and 60 of the Act apply to the present case as a consequence of Schedule 1, items 55(1)(d) and 55(4)(a), and Schedule 6, item 133(7)(d) of the Raising the Bar Act. The present application was filed after 15 April 2013.
The standard of proof that applies in the present case is the balance of probabilities. Under subsection 60(3A), if I am satisfied, on the balance of probabilities, that a ground of opposition to the grant of a patent exists, I may refuse the present application. Nevertheless, it remains the case that, in proceedings such as these before the Commissioner, the onus rests with the opponent to clearly establish its case in reaching a conclusion on any issue.
The Opposition
In the SGP the opponent listed grounds under:
·     s18(1)(a) – the invention is not a manner of manufacture;
·     s18(1)(b)(i) – the invention as claimed lacks novelty;
·     s18(1)(b)(ii) – the invention as claimed does not comprise an inventive step;
· s18(1)(c) – the invention as claimed is not useful;
· s40(2)(a) – the specification does not disclose the invention in a manner which is clear enough and complete enough;
· s40(2)(aa) – the specification does not disclose the best method known to the applicant of performing the invention;
· s40(3) – the claims were not clear and succinct, and/or not supported by the matter described in the specification.
In the opponent’s written submissions, and at the hearing, the grounds pursued were limited to:
· s18(1)(b)(i) – the invention defined in claims 1–3, 5, 8, 13, 15–18, 20–23, 25 and 30 lacks novelty;
· s18(1)(b)(ii) – the invention defined in all claim does not comprise an inventive step;
· s18(1)(c) – the invention as claimed in claims 1, 15–17 and 21 is not useful;
· s40(3) – claims 1, 5 and 21 are not supported by the matter described in the specification and are not clear.
Evidence not properly in reply?
A preliminary issue that arose at the start of the hearing surrounded the availability for the opposition of one of the pieces of prior art information relied upon by the opponent.
The prior art information in question was made publicly available through the prior use of a product apparently from the applicant named the “Womanizer W100” (“W100”). A printout of pages from the Amazon website relating to the offering for sale of W100 first appeared in exhibit FW-4.1 attached to Witt 4, which, as noted above, was filed as evidence in reply.
The opponent sought to rely on this prior use to establish that the invention lacked an inventive step in light of the common general knowledge (“CGK”) plus W100 (as prior art information under s7(3) of the Act).
The applicant submitted that the prior use of this device was not raised in the SGP and was not part of the evidence in support. As such, the applicant had had no opportunity to address W100 in evidence in answer. In the applicant’s submission this prior use was, therefore, not evidence properly in reply and the opponent should not be allowed to rely upon it as prior art information under s7(3).
The opponent submitted that the prior art was provided as a reply to the statement in [36] of Dr Herbenick’s declaration that certain features of the present application “would have been unique and creative for sexual stimulation devices as of the March 2015 priority date”, by pointing out that the features were known from prior use. In their opinion, it would be prejudicial to prevent the opponent from relying upon it.
Ultimately, following my consideration of this piece of prior art information (which I discuss in [107] et seq below), the question of whether W100 is evidence properly in reply or not does not need to be answered. Nor do I need to consider whether it should be introduced under Regulation 5.23. The incorporation of this piece of prior art information does not change the outcome of the opposition.
However, purely for completeness, if it had been necessary, I would have found that W100 was not properly in reply. The prior art information is clearly being used to raise a new “objection” as it were under the ground of inventive step that was not in the SGP. To put it another way, the evidence in reply has changed (in some way) the case to be answered. That is not the job of the evidence in reply; it is job of the evidence in support. It is difficult to reconcile that situation with the general proposition that the evidence in reply is to address the evidence in answer. It is not to raise new objections. While the opponent submitted that it was replying to a statement of Dr Herbenick at [36] of her evdience, that particular statement at [36] was pointing to a lack of evidence in support establishing that certain features were known. By providing the prior art information, the opponent was seeking to “plug the hole”. On that view, the opponent was effectively providing evidence in support, not evidence in reply.
Person skilled in the art
In KD Kanopy Australasia Pty Ltd v Insta Image Pty Ltd (2007) FCA 481; 71 IPR 615 Kiefel J identified ([16]) the person skilled in the art (“PSA”) as:
“...a person acquainted with the surrounding circumstances of the state of the art and manufacture at the relevant time…They are likely to have a practical interest in the subject matter of the invention…and may often work in the art with which the invention is connected.”
In Root Quality Pty Ltd v Root Control Technologies Pty Ltd [2000] FCA 980; 9 IPR 225, Finkelstein J stated 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.”
In AstraZeneca AB v Apotex Pty Ltd [2015] HCA 30 (at [23]), the High Court additionally noted that:
“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.”

There was some dispute between the parties as to each declarant’s suitability to give evidence of the PSA.
The opponent maintained that their expert (Mr Witt) was to be preferred. They pointed to his work in product design and development, including over 5 years of experience in the design and development of sexual stimulation devices. They noted that the field of the present application was the design and manufacture of devices for stimulation, submitting that the most relevant PSA was a person with direct experience in the design and manufacture of stimulation devices, including sexual stimulation devices. The opponent submitted that the applicant’s expert (Dr Herbenick) should not be preferred, noting that, although she has “impressive qualifications and experience in the field of sexual education and health”, she did not appear to have direct experience in the design of sexual stimulation devices. As such, it was submitted that she could not be relied upon to reflect what the PSA of the design and manufacture of stimulation devices would, or would not, do.
The applicant submitted that, contrary to the opponent’s submissions, Dr Herbenick did have direct experience working with stimulation device manufactures, pointing to [5]–[7] of her declaration. In particular, the applicant quoted [7] of Dr Herbenick’s declaration in their written submissions:
“Throughout my career, including prior to March 2015, I have provided consultation to various manufacturers and distributors of sexual stimulation devices. Examples of this consultation work have included participating in the design process of vaginal dilators as well as clitoral, vaginal, and vulvar stimulators, among other devices. As part of these experiences, I worked with electrical and mechanical engineers, toxicologists, and designers.” (underlining in written submissions)
The applicant also submitted that the present application was not, contrary to the opponent’s submission, directed to devices for stimulation generally, but for devices for sexual stimulation and not devices for other kinds of medical/therapeutic stimulation. They submitted there was no particular reason for preferring Mr Witt’s evidence on any issue for these devices. They noted that various parts of Mr Witt’s evidence were expressed as a legal argument. They also noted that Mr Witt states that his most relevant experience with sex toys was the “design of patent circumvention strategies and solutions with respect to devices such as Pressure Wave Massagers, Partner Sex Toys” (Witt 1 at [7]). As such, Mr Witt was a person who was approached to help companies develop strategies to overcome patents in the field.
To my mind, both experts have had involvement in the design of sexual stimulation devices. However, the focus of their approaches is different. It would appear that Dr Herbenick approaches the design with the view to making a device which achieves a sexual stimulation goal. Mr Witt’s evidence suggests he approaches the design with a view to making a device which does not infringe existing patents. In this regard, I note that Mr Witt states at [7] that his most recent experience with respect to sex toys was:
·“application of technologies from other fields to stimulation devices, e.g. exotic actuator technologies such as Moving Magnet Actuators, Shape Memory Alloy Actuators;
·optimization of existing stimulation devices through deep understanding of the operating principle, for example, stimulation devices with positive and negative pressure such as Pressure Wave Massagers;
·design of patent circumvention strategies and solutions with respect to devices such as Pressure Wave Massagers, Partner Sex Toys.”
As such, Mr Witt’s evidence seems to be focused around altering existing sexual stimulation devices using his knowledge of devices outside the sexual stimulation device art. That is, Mr Witt’s experience seems to establish that his area of expertise does not sit in sexual stimulation devices. Both Mr Witt and Dr Herbenick have been involved in the design of a sexual stimulation device and, therefore, both can reasonably put forward opinions on what may happen in such a process. However, I cannot conclude that Mr Witt can reliably state, absent corroborating evidence, what is well-known in the sexual stimulation art. That is, to the extent that it becomes necessary, I would prefer Dr Herbenick’s evidence as to what was known in sexual stimulation device art.
Claim Construction
While the rules of construction for an Australian patent specification are well summarized in Decor Corp v Dart Industries 13 IPR 385, the correct application of these rules to the construction of claims was discussed by Bennett J in H Lundbeck A/S v Alphapharm Pty Ltd [2009] FCAFC 70; 81 IPR 228 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…while the claims define the monopoly claimed in the words of the patentee's choosing, the specification should be read as a whole ... it is not permissible to read into a claim an additional integer or limitation to vary or qualify the claim by reference to the body of the specification…terms in the claim which are unclear may be defined or clarified by reference to the body of the specification.”
I would also note what was said in Eli Lilly and Company Limited v Apotex Pty Ltd [2013] FCA 214 at [139]:
“It is well settled that the Court should, from the outset, approach the task of patent construction with a generous measure of common sense. The Court must place itself in the position of a person skilled in the relevant art, being the subject matter of the patent. From this perspective, the patent is to be read as a whole, in the context of the specification and in light of the prevailing common general knowledge and state of the relevant art at the priority date.”
In the present matter there were terms in the claims that are important to the determination of this opposition. These were:
(a)Positive pressure and negative pressure
(b)Stimulating for sexual pleasure v stimulating for medical therapy
Positive and negative pressure
The opponent noted that the characterisation of whether pressure was positive or negative was described in the specification as being determined by reference to a reference pressure. They noted that the specification, at page 5, lines 22–30 stated:
“The reference pressure is usually the atmospheric pressure acting on the stimulation device that prevails when application begins (i.e. prior to placing the stimulation device on the area of skin to be stimulated). In the preferred application of the stimulation device with air, the reference pressure is the currently prevailing air pressure or normal pressure. For example, when the device is applied under the normal standard conditions the reference pressure may be approximately 1 bar, from which it follows that a negative pressure according to the invention may be for example 0.7 bar and a positive pressure according to the invention may be for example 1.3 bar.”
They also noted that the present application, at pages 2 and 21, referred to negative pressure as being below systolic blood pressure.
The opponent submitted that whether a pressure was positive or negative was determined by reference to a reference pressure. They submitted that the present application did not provide any guidance as to the difference between air pressure and systolic blood pressure. The opponent also noted that claims 1 and 15 referred to “normal pressure”, claim 21 referred to “reference pressure”.
The applicant submitted that it was apparent from the specification that “negative pressure” referred to the suction of air (or another medium) away from the erogenous zone being stimulated, and “positive pressure” referred applying a positive force “against the surface area of the skin to be stimulated” (page 6, lines 8-12).
To my mind, the specification is to be interpreted more in line with the applicant’s submissions. In particular, it is clear from the specification as a whole that, whatever reference pressure is used, a “negative pressure” is one which results in suction action at the present application site. The same reasoning applies to “positive pressure”; this is a pressure that results in a blowing action (i.e. some force is applied) at the application site. While it is difficult to see how the reference pressure could be something other than the prevailing atmospheric pressure at the location of use, the appropriate focus is on the action at the application site.
Sexual pleasure v medical therapy
The opponent submitted that there was no difference between these two terms. Based upon the DPMA decision in JK-1 the opponent stated that the phrase “for sexual pleasure and not for medical therapy” in claim 15 was a purely subjective feature with no distinction.
The applicant submitted that there was a difference between the two terms. Treating a medical condition, which would be done by a medical therapy, is not the same as undertaking stimulation for sexual pleasure.
To my mind, there is clearly a difference in the specification between the two terms. The common-sense position is that a “medical therapy” seeks to treat a condition of a patient, while sexual stimulation has no goal other than to create sexual pleasure in the user.
While I note that Mr Witt at [8] in Witt 2 states that a device that provides stimulation resulting in increased blood flow could be used for both medical purposes as well as pleasure, that does not remove the difference. I also note that the passage in the DPMA decision that the opponent referred to as authority (in a sense) for equating the two terms is this:
“Moreover, according to the opponent ecoaction GmbH, the feature “sexually stimulating pressure field” is a subjective featutre [sic] that is not suitable for determining the scope of protection of a version of a claim.”
This is not supportive of the opponent’s position. I am not even sure if it is finding of the DPMA, or a submission by the opponent.
As noted by the applicant, this result has an effect on the scope the claims to the extent that what is, or is not, an infringement will depend on the purpose of practicing the invention. As the applicant submitted (in relation claim 15):
“Any person who uses a method having the integers of claim 15 will have an intended purpose. If their purpose is sexual pleasure, they will practice a method that embodies the claim. If their purpose is medical therapy, they will practice a method that falls outside the scope of the claim.” ([41(b)(iii)] of their written submissions)
Novelty
The Federal Court of Australia has extensively reviewed the law regarding novelty in judgements. The judgements indicate that the basic test for anticipation is that set out in Meyers Taylor Pty Ltd v Vicarr Industries Ltd (1977) 137 CLR 228 at page 235; that is:
“The basic test for anticipation or want of novelty is the same as that for infringement and generally one can ask oneself whether the alleged anticipation would, if the patent were valid, constitute an infringement”.
It follows that if a citation discloses all the integers of the claim, the claim will lack novelty. If the citation does not disclose all the integers of the claim, the claim will still lack novelty provided the citation discloses all the essential integers of the claim, but if the essential integers are not disclosed in the citation, the claim is novel (see Nicaro Holdings v Martin Engineering 16 IPR 545 and Catnic Components Ltd v Hill and Smith (1982) RPC 183).
It is noted that General Tire & Rubber Company v The Firestone Tyre and Rubber Company Limited (1971) 1A IPR 121 stated that:
“If … the prior publication contains a direction which is capable of being carried out in a manner which would infringe the patentee’s claim, but would be at least as likely to be carried out in a way which would not do so, the patentee’s claim will not have been anticipated, although it may fail on the ground of obviousness.”
Thus, in order to meet the test for anticipation, the prior art:
“must contain clear and unmistakeable directions to do what the patentee claims to have invented…A signpost, however clear, upon the road to the patentee’s invention will not suffice. The prior inventor must be clearly shown to have planted his flag at the precise destination before the patentee.”
In the present opposition, the opponent submitted that the claims 1–3, 5, 8, 13, 15–18, 20–23, 25 and 30 lacked novelty in light of US2013/0012769 (D2).
US2013/0012769 (D2)
D2 discloses a female stimulation device that uses a varying air pressure. Figure 1 is an example embodiment:
The device in D2 includes an air compressor 16, a container 17, a tip 30, a tubing 20 and an electric motor 18, wherein the motor 18 drives the compressor and the compressor supplies pressurized air through the container 17 and the tubing 20 to the tip 30. The air could be directed towards the clitoris and other body parts. D2 discloses that the air pressure is pulsated.
Submissions
The opponent submitted that D2 disclosed varying the pressure of the compressed air that emerges at the tip in the range of 10 psi to 60 psi. As normal atmospheric pressure was 14.7 psi, the opponent submitted that this meant that D2 disclosed a pattern of positive and negative pressures being applied to erogenous zones. This, along with the presence of the features of the device rendered, in the opponent’s submission, the independent claims not novel.
The applicant submitted that D2 was not a novelty citation. The applicant submitted that, at various points, D2 was clear that it was a device that delivered a positive pressure only. They noted various passages in D2 where this was, in their opinion, established. For example (underlining in written submissions):
Abstract: “A female stimulation device contained in a housing to deliver pulsating positive air pressure to the female genitalia … having … a regulator to vary the positive air pressure… Various tips to direct the pulsating positive air flow and direct mechanical stimulation to the clitoris and nearby regions are connectable to the tubing outlet”
[0004]: “…the current invention provides a positive air flow to create the stimulation of the clitoris from the air flow, rather than contact of the device. Pressure is referred to as ‘positive’ when it exceeds atmospheric pressure and ‘negative’ when it is less than atmospheric pressure…”;
[0005]: “The positive air flow pressure of the present invention creates a force applied over a surface per unit of area. The force per unit area applied in a generally perpendicular angle to the surface of an object creates a peening or concussion of the surface which it is directed to for stimulation.”
[0006]: “The present invention is a female stimulation device to deliver pulsating positive air pressure to the clitoris and other regions of the female genital region. The device comprises an air pump/compressor… a regulator to vary the positive air pressure. Various tips to direct the pulsating positive air flow to the clitoris and other parts of the region are removeably connectable to the tubing outlet. The tips are of different configuration to apply direct mechanical stimulation and or pulsating positive air pressure to the clitoris.”
(iv) [0009]: “In an embodiment, the invention is a positive air pressure and flow device to apply positive air pressure and flow to the female genitalia including but not limited to the clitoris, labia minora, labia majora, anus, nipples, and the like.”
In relation to the opponent’s submission that D2’s disclosure of varying the pressure from between 10 and 60 psi, combined with the fact that atmospheric pressure is 14.7 psi, was a disclosure of positive and negative pressures, the applicant noted that both experts agreed that D2 did not disclose positive and negative air pressure.
The applicant noted that Mr Witt at [6] of Witt 3 said:
“Turning to D2, it appears this document teaches the advantages of positive pulsating pressure but does not mention positive and negative pressure. Hence, claim 1 appears to differ from the document D2 …”.
With respect to Dr Herbenick, the applicant noted paragraph [58] of her declaration which states:
“Referring to the Witt declaration 3, paragraph 6, Mr. Witt acknowledges that D2 (Carlson patent US2013/0012769) “does not mention positive and negative pressure.” Indeed, the positive and negative pressure combination is a creative feature and an important part of the device of the Novoluto patent application.”
They also noted that the relevant passage in D2 (in [0026]) was:
“The air flow at from the tip is between about 10 psi to about 60 psi. A pressure regulator (not shown) regulates the amount of pressure as selected on the pressure dial.”
The applicant submitted that this did not disclose at pattern of varying air pressure since the second sentence suggested that the user simply selected a static amount of pressure on the pressure dial. It was also submitted that it was clear from the context of D2 that, unlike prior art suction (i.e. negative air pressure) devices, D2 delivered only positive air pressure.
The applicant noted that the background section of D2 stated (underlining in written submission):
[0002]: “… A very effective way of stimulating the clitoris and region is the use of pulsating positive air pressure to peen or to pulsate the clitoris by varying frequency as a means to create stimulation …”
[0003]: “No prior art female stimulation device uses a current of positive air pressure. Existing stimulation devices typically mechanically vibrate or create a suction [i.e. negative air pressure] effect. These devices have to contact the skin to provide stimulation. Problems with existing devices include irritation and infections. A need exists for an invention that sexually stimulates a female yet eliminates irritation and or the risk of infection.”
The statement at the start of [0003] in particular, noting the lack of devices which used positive air pressure meant, in the applicant’s submission, that D2 was teaching away from the use of negative pressure since it associated problems with that arrangement and solved it with positive air pressure.
I will note here that the applicant’s submissions also contained discussion of other purported differences between the claims and D2. However, their main point was that D2 did not disclose a cyclic pattern of positive and negative pressures.
The applicant is correct. It is clear that D2 is only dealing with positive pressure. This is particularly evident from the passage in [0004] of D2 quoted above which defines positive pressure as pressure which exceeds atmospheric pressure and the constant reference in D2 to positive pressure. Clearly what is being disclosed in D2 as a pressure between about 10 psi to about 60 psi is a pressure in excess of atmospheric pressure. This is backed up by the mention in D2 at [0005] (above) that the result of applying the air is a “peening or concussion” of the clitoris; both of which effects are the application of a positive, impacting force, which is not something that could be achieved by suction.
Even the passage relied upon by the opponent to infer a negative pressure supports this. The sentence from [0026] quoted above starts with “[t]he air flow at from the tip …”. Even noting the odd use of “at from”, regardless of whether the sentence is “at the tip” or “from the tip”, both alternatives are covering the situation that air is emanating out of the tip and not being drawn back into the tip. In any event, claim 8 of D2, which defines the same pressure range states:
“The female stimulation of claim 1 wherein air flow from the tip is between about 10 psi to about 60 psi” (my emphasis)
Clearly, D2 is blowing not sucking.
It follows that the claims are novel in light of D2. As this was the only document pressed by the opponent, and I do not consider the other documents mentioned under this ground to the SGP to be any more relevant, the opposition in relation to novelty fails.
Inventive Step

The statutory basis for inventive step for this opposition is set out at s7(2) and s7(3) of the Act as it stood after commencement of the Raising the Bar Act, and is reproduced below:
(2)     For the purposes of this Act, an invention is to be 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 relevant art in the 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 question of obviousness has been extensively considered by the courts. In particular Aickin J. stated in Wellcome Foundation Ltd. v VR Laboratories (Aust) Pty. Ltd. [1981] HCA 12 at [45]; (1981) 148 CLR 262 at 286 (“Wellcome Foundation”):
“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 Aktiebolaget Hassle v Alphapharm Pty Ltd [2002] HCA 59; 212 CLR 411 at [53] (“Aktiebolaget Hassle”), the High Court accepted the approach taken in Olin Mathieson Chemical Corporation v Biorex Laboratories Ltd [1970] RPC 157 at [187] where Graham J posed the reformulated Cripps question:
“Would the notional research group at the relevant date, in all the circumstances, … directly be led as a matter of course to try [the claimed combination] in the expectation that it might well produce a [useful or better result]?” (emphasis in the original)
In the present case, the opponent contended that the claims lacked inventive step in light of the CGK alone. They also contended that the claims lacked inventive step in light of the CGK in combination with information as set out in s7(3). This information was the following (in the order of submission):
(a)D2;
(b)WO 2006/063461 (D5);
(c)EP 1 477 149 (D6);
(d)Womanizer W100 (as a prior use);
(e)US 1898652 (D3);
(f)US 1882040 (D4); or
(g)CN 2153351 (D1).
The opponent also submitted that, to the extent that it was necessary, the claims lacked inventive step in light of the combination of D2 with D5 or D6, or one of D5 and D6 with D1 or D3.
The problem
The usual approach to determining inventive step is the problem-solution approach as per Wellcome Foundation. Once the problem has been formulated and the common general knowledge and the prior art base has been determined, the question of whether the claimed solution is obvious must be addressed.
In determining the problem or ‘starting point’ for considering inventive step, I am mindful of the words of the majority of the Full Court in AstraZeneca AB v Apotex Pty Ltd [2014] FCAFC 99 (“AstraZeneca”) at [202]-[203] as follows:
“If the problem addressed by a patent specification is itself common general knowledge, or if knowledge of the problem is s 7(3) information, then such knowledge or information will be attributed to the hypothetical person skilled in the art for the purpose of assessing obviousness. But if the problem cannot be attributed to the hypothetical person skilled in the art in either of these ways then it is not permissible to attribute a knowledge of the problem on the basis of the inventor’s “starting point” such as might be gleaned from a reading of the complete specification as a whole.”
In other words, the Full Court has stated that when formulating the problem it is not permissible to incorporate information that is not available to the person skilled in the art as either common general knowledge or information available under section 7(3).
The opponent submitted that the problem identified by the present application was reducing the complexity of the arrangements generating negative pressure or positive pressure in stimulation devices and, as a result, increasing the hygiene of the device. The opponent also noted that the present application noted habituation effects occurring as a result of long-term, continuous or frequently recurring application of negative pressures as a problem to be addressed. The applicant did not seek to identify a problem in their submissions.
Certainly, it can be said that the problem identified by the opponent is a problem that can be gleaned from reading the specification. However, from AstraZeneca, it does not necessarily follow that this is the problem for the purpose of assessing inventive step. With respect to problems that existed, Mr Witt states:
“I now refer to p. 1-4 of the specification Exhibit no. FW-2, I was provided with, and in particular p. 3 l. 26-30. I agree that positive and negative pressure devices were well‑known and it was known many of these had the disadvantages of poor cleanability due to possible fluid retentions in chambers. This was due to the undercuts in the geometry as seen from the active opening of the second chamber.
Prior to the priority date, positive and negative pressure was created in a stimulation device through single or double chamber arrangements with a mechanically displaceable membrane. However, this often lead to the hygienic problems noted above. In addition, mechanical problems such as reduced mechanical efficiency due to the throttling of the connection channel between the two chambers was also known.” (Witt 1 at [15])
…
“Further, having now reviewed the description, I note it states on p. 4 l. 27 – p. 5 l. 2 that the separation into a first and second chamber is used to direct the pressure field onto the skin to be stimulated. I note that it is not the pressure field that is directed but rather air accelerated by fluid transfer from the first chamber to the second. It is unclear from claim 1 that the air is directed at the body part to be stimulated, rather, it only describes pressure field which is scalar rather than vector. This way a device according to claim 1 adds the complexity and the hygienic problems without taking advantage of the directed air flow.” (Witt 2 at [10])
…
“Whilst I agree that positive and negative pressure devices were known prior to March 2015, I know from my own in-depth product analysis that the problem of fluid retention is not solved with the claimed arrangement of a first and second chamber with a connecting element. The positive and negative pressures inherently lead to an alternating flow direction in the connecting element, sucking fluid from the second chamber placed on a body part into the first chamber where the pressures are generated. This first chamber is not accessible (or at least very difficult) for cleaning through the connecting element.” (Witt 4 at [21])
For the applicant, Dr Herbenick makes the following statements at [36]–[37] (italics in original):
“Additional detail is provided on page 5, lines 4 – 10 of the Novoluto patent application, indicating that:
‘A pressure field, in the context of the invention, is a field of medium pressures that is variable over time and has temporary positive pressures and temporary negative pressures, a negative pressure being a pressure of medium that is below the reference pressure and a positive pressure being a pressure of medium that is above the reference pressure. As a result, the medium flows back and forth in the pressure field according to the invention. Thus, preferably a (largely) intermittent exchange of said medium can occur.’
In my opinion the above describes features that would have been unique and creative for sexual stimulation devices as of the March 2015 priority date. Also, the above description added to my understanding of how the present invention overcomes problems of earlier vacuum/suction devices or, relevant to my own research, earlier vibrating devices that caused genital discomfort or pain.
The Novoluto patent application describes the use of alternating negative and positive pressures to ‘excite blood circulation of the area of skin to be stimulated’ and to provide a ‘massaging effect that serves to stimulate the erogenous zone, for example for sexual arousal up to the climax’ (page 6, lines 3 – 7). The patent application describes how the present design accomplishes this ‘indirectly, i.e. without the skin part to be stimulated being in direct contact with a solid body such as a vibrator,’ again demonstrating particular ingenuity at overcoming longstanding challenges in sexual stimulation devices prior to March 2015: that is, how to engineer a product so as to enhance sexual pleasure while minimizing the risk of discomfort or pain, particularly as it relates to the sensitive clitoris or other female genital parts. (The clitoris and much of the vulva are generally regarded as more sensitive than penile skin, which is almost completely covered in skin.)”
As such, it would appear that problems with cleaning and hygiene were known to exist. There is also mention of previous devices causing pain. However, it should be pointed out that, notwithstanding Mr Witt’s statement about positive and negative pressure devices being known, it seems that the problem with hygiene is associated with negative pressure devices. The same is also the case for Dr Herbenick’s additional problem of earlier suction devices causing pain.
As such, I do not see support for the opponent’s submissions that the problem was reducing the complexity of the arrangements generating negative pressure or positive pressure in stimulation devices and, as a result, increasing the hygiene of the device. Firstly, I am of the opinion that the invention is seeking to develop a sexual stimulation device and not a stimulation device in general. This is clear from the context of the specification as a whole. Secondly, the issue around hygiene is something that is only apparent for negative pressure devices, which can draw in various substances which cannot easily be removed.
In my opinion, the problem that is being solved is the provision of a sexual stimulation device with improved hygiene, with habituation effects, as well as pain occurring as a result of overuse of negative pressure devices also being addressed.
Inventive step in light of CGK alone
CGK
In their submissions at [94], the opponent set out the following as what they believed had been established as CGK (footnotes omitted):
“a)Stimulation devices comprise basically of two shapes: shapes to be inserted into bodily orifices and shapes to be placed on external parts of the body;
b)The combination of the two basic shapes was well-known for example in Dual Action Vibrators for simultaneous vaginal and clitoral stimulation, such as rabbit type vibrators, and the commercial embodiment of D5, being a sexual stimulation device designed to provide (direct) vibratory stimulation simultaneously to the clitoris, G-spot, and vagina; and the dildo/ clitoral stimulation device disclosed in D7 and D8;
c)Clitoral suction devices, including devices that utilised positive and negative pressure;
d)Pressure Wave Massage technology that utilise positive and negative pressure stimulation;
e)Suction/stimulation methods/devices, for example pressure wave massagers which use positive and negative pressure stimulation, achieved by mechanically moved membranes in both single and double chambers;
f)The double chamber approach requires the chambers to be interconnected in order to transfer pressure from one chamber to the other, the first chamber being the chamber that is changed in volume to generate a pressure difference, and a second chamber being placed on or about the body part to be stimulated. This was typically achieved by a remote first chamber, a hose, and a second chamber/suction cup to be placed onto the body part to be stimulated;
g)Electro-mechanical devices to create vibration in stimulation toys, such as vibrators;
h)Drive devices which included the features of speed reduction or increase or conversion of the rotation into linear motion. Typically, this is done through speed reduction using gear boxes;
i)The use of physiologically inert materials such as silicone and materials with gel textures or combinations of outer skin material with gel-like materials underneath;
j)In product development, it is common practice to replace functional elements of products with technologies from other products that are well known.”
The opponent submitted that their conclusions were based on statements made by the experts.
Essentially, the opponent’s case on inventive step in light of CGK alone was that, given that there was a range of CGK options available for sexual stimulation, it was CGK to combine different options, or to replace one function in a known configuration with another, known function. It was also the argument that, as massage was used in sexual stimulation, it would be obvious to use options that were CGK in that art in the sexual stimulation art.
The applicant did not agree that all of these features were CGK. Specifically, they did not accept that items (c)–(f) were parts of the CGK of the sexual stimulation art.
In my opinion, the applicant’s position on these features is to be preferred. It seems clear to me that the device of the present invention is a sexual stimulation device. It is also clear that, while there is certainly overlap between massage and sexual stimulation in that manipulation of body parts occurs in both, it does not necessarily follow, absent any corroborating evidence, that what is known in stimulation devices as a general class (including massage as therapy) is also known as CGK in sexual stimulation devices. They have different goals.
For feature (c), the opponent relies upon paragraph [6] of Witt 4, which states:
“With respect to paragraph 25 [of Dr Herbenick’s declaration], it is undisputed that clitoral suction devices were known prior to March 2015. However, the paragraph fails to mention that other devices for clitoral stimulation were known in that time frame that explicitly use positive pressures (as disclosed in D2). Devices that use positive and negative pressures were also well known (disclosed in D3). In fact, the Womanizer W100 by Novoluto itself is one such device well known in the industry. This device was publically [sic] available prior to March 2015. The device was for sale on Amazon (Germany) by at least 9 July 2014, see Exhibit FW-4.1 and available elsewhere shortly thereafter, see for example ( dated 29 August 2014 and the remaining examples in Exhibit FW-4.1.”
This paragraph falls well short of what is necessary to establish feature (c) as CGK in sexual stimulation. Firstly, the positive pressure clitoral stimulation device (D2) does not establish the use of positive and negative pressures. Secondly, the stimulation devices that use positive and negative pressure (D3) are not described as clitoral stimulation devices (D3). Thirdly, both D2 and D3 are patent documents, and it is well established that patent documents are not necessarily evidence of CGK. Fourthly, Mr Witt’s statement by itself does not establish that the Womanizer W100 was CGK. It is well established that something that is “well known” does not necessarily equate to something which is CGK. I will have more to say on the Womanizer W100 below.
For feature (d), to the extent that it is making the statement that stimulation devices that use positive and negative pressures are CGK, it may be accepted from the paragraphs from the Witt declaration relied by the opponent that this could be true for other industries. However, this cannot be extended to the proposition that the use of positive and negative pressure for sexual stimulation is CGK. As noted above, I prefer Dr Herbenick’s evidence as to CGK of sexual stimulation devices. It is clear from those parts of the Witt paragraphs mentioning pressure wave massagers relied upon by the opponent that Mt Witt avoids stating that pressure wave massagers are used for sexual stimulation:
“Suction/stimulation methods/devices, for example pressure wave massagers which use positive and negative pressure stimulation. By this, I mean positive and negative pressure changes in air pressure relative to atmospheric pressure. This has been achieved by mechanically moved membranes in both single and double chambers” (Witt 1 at [13](part))
“A method as described in claim 15 would even cover using a previously known pressure wave massager and inserting part of this device into a human body (e.g. in the mouth) whilst applying the pressure field towards a different body part (e.g. the person's hand or another person's hand) at the same time as the pressure wave stimulation.” Witt 2 at [16]
“However, pressure wave generators were well-known before the priority date. Further, use of a pressure wave generator rather than a vibrator for clitoral stimulation fits easily without requiring technical or geometric modification because of the geometric arrangement of drive unit and membrane in a pressure wave generator as used widely in the industry, e.g. the motor, crankshaft, and membrane arrangement. In other words, this is merely a single step in swapping one element for another without any major technical difficulties.” (Witt 3 at [7])
“In reviewing paragraph 21 of the Herbenick declaration, I agree that dual action vibrators that have an arm for vaginal insertion and another arm for clitoral stimulation were known before March 2015. Considering this, my argument that the replacement of the clitoral stimulation with a pressure wave generator is lacking an inventive step stays valid. In product development, it is common practice to replace functional elements in products with technological cores or technologies from other products that are well-known. This certainly applies to pressure wave massager technology as it became known before March 2015 as will be explained in more detail later. This argument is supported by Ms. Herbenick herself in stating that advances made in the field of dual action vibrators were made by adding rotating beads to the formerly only vibrating shaft or a thrusting/pulsating feature to the vaginal arms. These advances, which Ms. Herbenick herself considers ‘limited’, demonstrate the commonality of said practice of taking a well-known product concept (dual stimulation) and adding or replacing existing and well-known features or technologies, including pressure wave generators.” (Witt 4 at [5])
“With respect to paragraph 25 [of Dr Herbenick’s declaration], it is undisputed that clitoral suction devices were known prior to March 2015. However, the paragraph fails to mention that other devices for clitoral stimulation were known in that time frame that explicitly use positive pressures (as disclosed in D2). Devices that use positive and negative pressures were also well known (disclosed in D3). In fact, the Womanizer W100 by Novoluto itself is one such device well known in the industry. This device was publically [sic] available prior to March 2015. The device was for sale on Amazon (Germany) by at least 9 July 2014, see Exhibit FW-4.1 and available elsewhere shortly thereafter, see for example ( dated 29 August 2014 and the remaining examples in Exhibit FW-4.1.” (Witt 4 at [6])
“While there may be differences between devices designed for sexual stimulation and devices specifically designed for medical therapy, in my experience, sex toys are widely used for medical therapy as well since they are available off-the-shelf at affordable prices and often functionally equal or at least very similar. For example, I know from consulting with sexual therapists, that they recommend the use of pressure wave massagers for therapeutic purposes, e.g. in cases of Anorgasmia.” (Witt 4 at [25])

These statements are not supported by corroborating evidence that establishes that these features are CGK in sexual stimulation.
The same can be said for feature (e). Paragraph [13] of Witt 1 relied upon by the opponent does not establish this was CGK in the sexual stimulation art.
Similarly, for feature (f), while paragraph [14] of Witt 1 might establish that the double chamber approach is known, it does not establish it is CGK. Paragraph [14] is as follows:
“That, it is understood in the art that the two-chamber approach requires the chambers to be interconnected in order to transfer pressure from one chamber to the other. The first chamber being the chamber that is changed in volume to generate a pressure difference, and a second chamber is placed on or about the body part to be stimulated. For example for a long time, this was typically achieved by a remote first chamber, a hose, and a second chamber/suction cup to be placed onto the body part to be stimulated.”
It is noted that this paragraph avoids the mention of sexual stimulation.
Conclusion on inventive step in light of CGK alone
It follows that the opponent’s case of lack of inventive step in light of CGK alone must fail. On the evidence before me, not all features of the claims have been established to be CGK in the sexual stimulation art. As such, it cannot be said that the combination of features/steps would be obvious to assemble.
Inventive step in light of CGK plus s7(3) information
CGK + D2
The opponent’s case in relation to D2 was based on their conclusion that D2 disclosed a modulated pattern of positive and negative air pressure. As noted above under Novelty, D2 does not disclose this feature. It follows that what is required to be established as CGK, at the very least, is such cycles of positive and negative air pressure in sexual stimulation. As is clear from above, I do not accept that such was CGK. It follows that the opponent’s argument in relation to CGK + D2 fails.
CGK + D5
D5 discloses a sexual stimulation device designed to provide stimulation simultaneously to more than one area at a time, such as the clitoris, G-spot, and vagina:
The device includes an outer skin 5 of silicone, vinyl, rubber, or other suitable material, and skeletal inner core 6 which is flexible enough to withstand fairly vigorous use, resilient enough to consistently exert a forward pressure on the G-spot and hard enough to protect the components and circuitry. The device has an inner arm that terminates in a bulbous teardrop shaped pad 2 to be inserted into a vagina of a woman. An outer arm having a clitoris stimulator pad 4 is provided to contact a clitoral area of the woman when the inner arm is inserted into the vagina. An elastic U-shaped transition portion 3 joins the inner arm to the outer arm. This allows the inner arm and the outer arm to move with respect to each other for adapting to the human anatomy. Two vibration motors (8 in pocket 7 and the one sitting in pocket 71) connected by wiring 9 are provided power by a battery 16.
The opponent submitted that, while D5 used vibrating stimulation rather than pressure wave generators, the replacement of the vibration device with a pressure stimulation device would be entirely routine.
The applicant submitted that D5 taught away from constructing a device that uses a pressure field generator to indirectly stimulate the clitoris, using a modulating pattern of positive and negative pressure. They submitted that D5 described stimulation with harmonic vibrations and there was no basis to make fundamental changes to the mechanism.
Mr Witt most relevantly states in respect of D5:
“The difference between D5 and claim 1 appears to be the use of vibrating elements rather than pressure wave generators. However, pressure wave generators were well-known before the priority date. Further, use of a pressure wave generator rather than a vibrator for clitoral stimulation fits easily without requiring technical or geometric modification because of the geometric arrangement of drive unit and membrane in a pressure wave generator as used widely in the industry, e.g. the motor, crankshaft, and membrane arrangement. In other words, this is merely a single step in swapping one element for another without any major technical difficulties.” (Witt 3 at the 30^th paragraph of [7])
Dr Herbenick states (at [82] – underlining in original – and [83]) that D5:
“… might be considered to disclose that direct sexual stimulation can be improved by generating vibrations on more than one erogenous area simultaneously. D5 is directed to design the shape of a vibrator such as to allow a stimulation of at least two erogenous areas simultaneously and so as to facilitate intercourse. Therefore, D5 generally relates to direct vibratory stimulation. In that regard, D5 does not provide any hint to replace the vibration of D5 with a pressure wave generator …
The technical principle of the device of the Novoluto patent application is completely different from a vibrator, because it relates to indirect stimulation based on negative and positive pressure waves. For these and other reasons cited above, I do not believe that a skilled person generally would have combined D5 with any of the other cited documents to create a device similar to the device of the Novoluto patent application.”
The applicant has the preferred argument. D5 is clear that the mechanism is based on vibrations. For example at page 4, lines 22–24 it says:
“Moreover, it will be understood that a harmonic pulsation will occur in the entire device due to the interaction between the vibrations produced by each motor.”
D5 further states at page 5 lines 18–21:
“… the switch may be provided with any number of ‘on’ settings to power any combination of the motors at the same or different levels or direction of rotation. This will create variable harmonic wave patterns in the device, so that a harmonic wave pattern pleasing to the user may be determined on an individual basis.”
It is difficult to understand why one type of stimulation mechanism essential to the operation of a specifically shaped device would be replaced by a very different type of stimulation mechanism. Mr Witt’s statements are clearly ex post facto analysis. Ignoring for the moment that it is not accepted that the use of pressure waves is CGK in the sexual stimulation art, in this passage Mr Witt simply identifies the difference and states that one could replace the other, but provides no motivation to do so. What would lead the PSA to try such a thing? While I note Mr Witt’s statement that “D5 hints at replacing the vibration module with other types of stimulation (p. 8 l. 11 onwards)” it is not clear in this passage of D5 if what is being discussed are alternatives or additions. In any event, I note that the alternatives are all vibration-based and not pressure wave mechanisms.
D5 is not relevant for inventive step.
CGK + D6
D6 discloses a stimulation aid for female masturbation:
It is a generally U-shaped implement having a handle 1 and a penetrative shaft 2 connected by a connection portion 6, 8. The inner surface of an end of the handle is provided with transversely extending ribs 4 for stimulation of the clitoris. The shaft can be inserted into a vagina. The aid can be made of a resiliently deformable elastomeric material so that the handle and the shaft are movable with respect to each other to achieve the required shape when the ribs are placed over the clitoris while the shaft is inserted into the vagina. D6 further discloses that means to cause vibration can be provided at least in the zone of the ribs.
The opponent’s submissions with respect to the combination of CGK and D6 were not extensive. Beyond describing D6, the written submissions did not state anything more. I also note that Mr Witt has undertaken no analysis of D6. However, at the hearing, the opponent made the submission to the effect that, once its case was made on D5, the case for D6 would be obvious.
As such, the opponent’s case for D6 fails for the same reasons as it did with D5 – noting that D6 is another direct sexual stimulation device, it has not been established that it would have been obvious to adapt it to an indirect sexual stimulation device. Saying that it could be is ex post facto.
CGK + Womanizer W100
As noted above, the opponent relied upon the prior use of W100 in combination with CGK to establish that the claimed invention lacked an inventive step. W100 as shown on the printouts is:
The opponent submitted that, in essence, claim 1 of the present application was simply W100 with a dildo appendage attached to it. In their submission there was no dispute that “dual action” devices for simultaneous vaginal and clitoral stimulation were well known before the priority date and, as such, the addition of a dildo to W100 would be obvious.
It was conceded by the opponent, that the printout of pages from the Amazon website relating to the offering for sale of W100 – which first appeared in exhibit FW-4.1 attached to EIR Witt 4 – did not contain an explicit disclose how the device operated. There was no explicit disclosure of the positive and negative pressure cycle claimed. In those circumstances, the opponent relied on the evidence from Mr Witt and the information about the use of W100.
The applicant did not make any detailed submissions at the hearing in regard to W100 as they felt it was not open for the opponent to rely on W100 as prior art under s7(3). They did, nevertheless, submit that there was no evidence of any prior publication disclosing the features of W100. They also noted that the printout from the Amazon website at FW-4.1 was (i) printed out after the priority date (apparently on 29 November 2018) and (ii) it was in the German language. They also submitted that there was no evidence that raises any case of prior use.
The applicant is correct. The evidence provided by the opponent falls far short of the rather stringent requirements to establish prior use. Even if everything in relation to W100 is included, the prior use (as opposed to prior offering for sale) of W100 has not been established.
Prior use requires a relatively high standard of proof. The UK Appeal Tribunal discussed the standard of proof required to establish prior use in Seiller's Application [1970] RPC 103. At page 106 Graham J. stated:
“In my judgement it is necessary that proof of prior user in opposition cases should be very clear. Normally in the absence of cross-examination, this will involve corroboration of a mere statement as to recollection in a declaration, particularly where the time interval involved is considerable. Such corroboration is often best found in documents contemporary with the fact to be proved. Each case, however, must be considered on its own facts, and I say expressly that I am not attempting to lay down any rule as to what is or is not sufficient in any given case.”
The UK Court of Appeal approved these comments in Dunlop Holdings Limited's Application [1979] RPC 523 at 548. A similar approach is evident in Windsurfing International Inc v Borsimex Pty Ltd, (1984) AIPC 90-135. Towards the end of section 8.38 Waddell J stated:
“It is essential that an allegation of prior public use should be strictly proved. Evidence which is uncorroborated is undoubtedly suspect and should be scrutinised with particular care. The Court must be satisfied that the proof is sufficient in the circumstances, having regard to the gravity of the allegation.”
Similarly, in Aspirating IP Limited v Vision Systems Limited, [2010] FCA 1061, (2010) 88 IPR 52, at [200], Besanko J stated:
“The correct principle is that a prior public use must be strictly proved and evidence which is not corroborated must be scrutinised with care, particularly where it is evidence of events which occurred many years ago.”
Importantly for this case, in Damorgold Pty Ltd v JAI Products Pty Ltd, [2015] FCAFC 31, Yates J at [94]–[96] commented on the essential features of the invention (a spring-assisted roller blind mechanism in that case) only being discernible by disassembling the product. Where the evidence pointed to no potential customer having disassembled the product and no complete examination having taken place, then the features of the product were not disclosed to customers. At [96], Yates J stated that the relevant question is not whether the product was made publicly available. In applying the notion of “enabling disclosure”, as explained in Merrell Dow Pharmaceuticals Inc v H N Norton & Co Ltd, (1995) 33 IPR 1, neither the mere public availability of a product, nor its use in public, necessarily means that the features of the product have been made publicly available.
It is clear that merely offering a product for sale, absent any detailed disclosure in the offer of how the device operates, does not, by itself, establish prior use. In this case, no evidence has been led from customers. There is no evidence of sale. I accept that FW-4.1 includes a report of an interview with Michael Lenke, “the inventor of the womanizer and head of epi24 GmbH”, in which a question asked (but not the answer given) was:
“Let’s talk about the womanizer. This product began its meteoric rise in 2014, now we’re halfway through 2016. Could you sum up the past two years of womanizer from your point of view?”
However, the answer does not establish sales of the W100. Instead the article only ever mentions the “womanizer PRO40”. There is no evidence from people who purchased the W100.
Even if it is accepted that the presence of comments on the webpage printouts establishes that the W100 was sold, nothing establishes that those who bought the device understood how it worked. There is no evidence from these people. Moreover, while not really necessary for my decision, I note that the oldest comment shown is dated 17 September 2014. Assuming that to be the date of sale, while it is earlier then the priority date, I note that this is well within the 12 month time period before filing the present application which would see that sale disregarded under the grace period provisions.
While Mr Witt says at [6] of Witt 4 that the W100 uses positive and negative pressures, he does not say that he bought a W100 before the priority date, so how does he know this? If we assume he was told, there is no evidence as to when he was told. His statement is without substance.
It follows that, on the evidence, the opponent has not established a prior use of W100 that provides an enabling disclosure to the extent that I can conclude a lack of inventive step. The opponent’s case here fails.
CGK + D3
D3 is the only document that explicitly discloses the use of positive and negative pressure cycles. It states in column 1:
“[The] invention relates to an air pulsator and has for its principal object the provision of a relatively simple, practical and inexpensive device wherein the alternate compression and suction of air is utilized for producing pulsations which, through the medium of suitable applicators, may be utilized as a therapeutic medium for the treatment of various bodily ailments and particularly for the gentle massage or treatment of the skin for the purpose of stimulating blood circulation and the treatment of tissues and muscles beneath the skin.”
Figure 1 of D3 was:
The opponent submitted that D3 disclosed a first chamber 14 + 41, a second chamber 45 having an opening 46 for placing onto the surface that was being treated, and a tube 44 providing a connection element that connected the first chamber to the second chamber. An electric motor 11 drove a piston 17 which changed the volume of the first chamber (specifically part 14) such that alternate compression and suction of air (i.e. positive and negative pressure) was generated within the second chamber via the tube. The opponent noted that D3 did not mention stimulation of the clitoris, but submitted that it would be clear to the PSA that the device was able to be used for the stimulation of the clitoris.
The applicant did not accept that D3 disclosed two chambers exclusively connected to each other. They did not see that parts 14 and 41 could be combined as a first chamber. It also was noted that D3 did not disclose an appendage/dildo for insertion into the body, most commonly the vagina. The applicant also noted Dr Herbenick’s discussion of D3 at [76] of her declaration where she said
“… in March 2015, a designer of sexual stimulation devices generally would not have thought to combine the teachings of D3 with one or more of the other cited documents to create a device similar to that of the Novoluto patent application, even if they had all of the cited documents in front of them. This is because D3 describes a therapeutic device for stimulating blood circulation and treating muscles; it does not describe anything dimensioned or suitable or safe for genital stimulation or for sexual pleasure”.
While D3 discloses the uses of positive and negative pressures for stimulation, it does not establish this being used for sexual stimulation. While the opponent submitted that PSA would realise it could be used as such, I do not see any evidence that establishes this.
In this regard, I note that Mr Witt, in responding to [76] of Dr Herbenick’s EIA in his EIR, states (my italics):
“In paragraphs 74 - 76, document D3 is analysed. In her conclusions, Ms. Herbenick concedes that D3 discloses the use of negative and positive pressures for the gentle massage of the skin for the purpose of stimulating blood circulation. Thus, I strongly disagree with her negation of any applicability of D3 to sexual stimulation. Firstly, the ‘off-label’ use of massagers as stated in paragraph 17 of her own declaration, has been referenced above.
Further evidence to the contrary is the fact that the description of the Novoluto patent uses a very similar formulation in page 2, line 20 as well as page 6, lines 2 and 5, amongst others. The effects on the body tissue sought by D3 and the Novoluto application are the same, a differentiation between positive health effects and sexual stimulation effects is not made by the technology itself but by its integration into an actual product and its application by the end user.
To stress this fact further, I am aware of patent WO2009152813A1 in which a technology for generation of low-frequency linear oscillating motions for sexual stimulation is disclosed which led to the ‘Stronic’ product range by German manufacturer Fun Factory GmbH ( However, this technology was originally invented with the aim of automatically rocking baby prams and beds (source: in German).
This provides a prime example of how technologies for the most mundane tasks can be applied to sexual stimulation with widespread success. The automatic pram rocker based on this patent is also a product currently on the market under the ‘lolaloo’ brand name ( Though wildly different with respect to their styling and target group, both Stronic and lolaloo products feature the exact same technology and could be used interchangeably, with varying degrees of user safety and social acceptability.
Thus, I conclude that the therapeutic aim of document D3 in no way indicates that it cannot or should not be applied to sexual stimulation. One possible reason D3 does not directly mention the obvious applicability to sexual stimulation can be found in the fact that it was written in the 1930s.
I am further surprised that Ms. Herbenick negates the obviousness of the sexual applicability of this massage technology in light of the fact that the majority of humans think about sex frequently and in any everyday situation, naturally leading to associations of otherwise inconspicuous products with sexual application. This is especially true for someone with a background in sex toy development.”

Putting aside the fact that the documents referred to in this paragraph are not in evidence, the sentence I have highlighted says it all. Mr Witt states that nothing in D3 says that the device could not be used as a sexual stimulation device, but the test is not that the document does not prohibit the use of D3 as a sexual stimulation device. The test is whether the PSA would have been led to try it. In that regard, in the field of sexual stimulation, as already noted, I prefer the evidence of Dr Herbenick over that of Mr Witt.
As such, on the evidence before me, the opponent’s case for D3 fails.
CGK + D4
D4 discloses a suction massage apparatus:
The apparatus has a cap 42 forming a first chamber, a suction cup 44 forming a second chamber having an opening, and a connection element 43 connecting the first chamber to the second chamber. A shaft 26 is rotated via a motor. The operation of the short rod 25, shafts 22 and 28, worm gear 27, pin 29, slot 30, cross slide 31 and arm 32, which all form a drive unit, varies the volume of the first chamber via the flexible diaphragm 35 (which is attached to a washer 34 that is attached to the arm) such that a pressure field is generated via the connection element in the second chamber. The opponent submitted that the reciprocating motion of the diaphragm generated a pattern of negative and positive pressures in the second chamber. The opponent noted that D4 did not mention stimulation of the clitoris, but submitted that it would be clear to the PSA that the device was able to be used for the stimulation of the clitoris.
Like D3, the applicant noted that D4 did not disclose an appendage/dildo for insertion into the body, and no teaching of sexual stimulation. Dr Herbenick also disputed that the device was even suitable for sexual stimulation, noting at [77] and [79] of her EIA (my underlining):
“D4 (Roehm patent; US1,882,040) does not disclose a sexual stimulation device. Rather, D4 discloses “an apparatus which not only massages the skin but also creates a suction thereon which opens and cleans the pores, stimulates the blood circulation, and exercises the muscles” (Column 1, lines 2 – 6). This 1930 patent does not refer to the human genitals or to sexual stimulation or sexual stimulation devices. It does not disclose features that would be suitable or safe for application to or stimulation of the genitals. Indeed, Roehm teaches muscular exercising and features that “further increase the suction,” (Page 1, line 89 – 96) which would increase the risk of discomfort, pain, or bruising if applied to the genitals.
…
D4 also describes that the use of the massage device not only massages the skin but also creates a suction when used for massaging the skin (see first paragraph of D4). These and other features described in D4 support the idea that D4 is truly a therapeutic device aimed, as noted, at exercising muscles and cleansing pores. Such a device is intended to engage more strongly with the human body than would be expected for a sexual stimulation device. Thus, a person skilled in the art would not get any hint from D4 that the suction apparatus is suitable or safe for sexual stimulation by placing it over the clitoris. Indeed, D4 fails to provide any suggestion of how to dimensionally form the suction apparatus for being suitably placed over the clitoris in order to achieve sexual stimulation.”
The applicant also submitted that D4 did not disclose a pattern of negative and positive pressures. They pointed to the first paragraph of D4 which states (my emphasis):
“[The] invention relates to massage devices and has for its main object to provide an apparatus which not only massages the skin but also creates a suction thereon which opens and cleans the pores, stimulates the blood circulation and exercises the muscles.”
Paragraph [78] of Dr Herbenick’s EIA states (my underlining):
“In particular, the device of D4 includes a suction cup which, when used for massaging the skin, forms a partial vacuum therein as the diaphragm moves to its rearward position (see pg. 1, column 2, lines 75 – 82). In D4, a number of holes are located on a diaphragm that open when the diaphragm moves forward to avoid a positive pressure. Further, the device of D4 is preferably applied over the muscles of the face (see pg. 1, column 2, lines 87 – 88).”
Figure 5 of D4 shows these holes 40:
D4 also states:
“To further increase the suction the large washers and the diaphragm are perforated and the perforations covered with the flexible flap valve 37. As the diaphragm moves forward the valve assumes the position shown at 45, in Fig. 1, and allows the air to pass through the holes 40. On the rearward movement the valve disc closes the holes.”
Clearly, as noted by Dr Herbenick, the one-way flap valve prevents air from entering the area between the diaphragm and the cap as it moves to the left (as own in figure 2), but allows air to escape when the suction phase is over and the diaphragm moves to the right, thereby preventing an increase in pressure.
As such, like D3, D4 is not relevant to the consideration of inventive step. Like D3, nothing in evidence suggests it would have been obvious for the PSA to use D4 as a sexual stimulation device. Moreover, there is nothing to establish that the PSA, in light of an active teaching away from using a positive pressure, would adapt D4 to introduce a positive/negative pressure cycle. Again, in the field of sexual stimulation, as already noted, I prefer the evidence of Dr Herbenick over that of Mr Witt.
CGK + D1
D1 is a Chinese utility model disclosing a “gas health massager”:
D1 discloses a device having a pressure field generator with an airbag 2 forming a first chamber, a mouth 1 forming a second chamber having an opening and a connection element (passage in 1) that exclusively connects the airbag to the mouth. An electromagnet 5 attracts a magnet 4 and, consequently, a lever 3 connected to the magnet and one end of the airbag. D1 says that:
“…the electromagnet (5) drives the magnet (4), the lever (3), and the wall of the air bag (2) to have reciprocating motion, and the rubber mouth (1) on the air bag (2) contacts the body. Power is turned on to generate a pulsating air pressure and to stimulate the meridian points for therapeutic purposes.”
The opponent submitted that the generation of a pulsating air pressure results in the generation of a pattern of negative and positive pressures, modulated onto normal pressure in the second chamber.
The opponent noted that the device was provided to stimulate the meridian points for therapeutic purposes, but submitted that the PSA would understand that this device would also be able to stimulate a clitoris and thus be suitable for use for sexual stimulation.
The applicant submitted that D1 was not a sexual stimulation device, but was a “medical instrument” for treating blood pressure, heart disease, cerebral thrombosis and the like. They noted the lack of a dildo in D1, and lack of any reference to any sexual stimulation or suitability for indirectly stimulating a clitoris for sexual pleasure (or otherwise). The applicant also questioned whether “pulsating air pressure” was a pattern of positive and negative pressures, modulated onto normal pressure. They submitted that pulsating air pressure may be pulsating positive air pressure.
In my opinion, like D3 and D4, D1 is not relevant to inventive step. The evidence of Mr Witt does not establish that it would have been obvious to adapt the device of D1 for sexual stimulation. His totality of discussion of D1 is as follows:
“Turning to documents D1, D3 and D4, each of these documents establish the use of pressure field generators to stimulate blood flow in a body part. Specifically wherein the pressure field generator is created by the use of a first chamber, a connecting element and a second chamber. For example, see document D3 which shows a first chamber 14, a connecting element 44, and a second chamber 45. The document teaches a pulsating effect on the body part to be massaged, see for example, p. 1 l. 15-27. As can be seen from document D3, positive and negative pressure effects on body parts were at least known from February 1933. I also note that document D3 includes an edge 46 to serve as an efficient seal and prevent/minimize air leakage. A similar arrangement is also taught in document D4 in the form of a removeable suction cup 44, having a soft rubber lip 47.
Further, document D1 clearly teaches a pressure field generator having a first chamber 2, connecting element C and a second chamber 1 in the form of a rubber mouth for placing on to a body part.” (Witt 3 at 2^nd- and 3^rd-last paragraphs of [7])
and
“In paragraph 68, Ms. Herbenick refutes the applicability of D1 on the grounds that it describes a device only for therapeutic purposes that is not sized to be applied to the clitoris.
I strongly disagree, since virtually any massage technology can be used for sexual stimulation and again refer to paragraph 17 of Ms. Herbenick's declaration on off-label use of body massagers. Further, Ms. Herbenick herself states in this paragraph that D1 does not describe any particular shape or dimensioning of the opening, thus conceding that it could well be dimensioned and shaped to fit the clitoris as disclosed.” (Witt 4 at [35])
None of this establishes how D1 operates and that the PSA would adapt the device of D1 for sexual stimulation.
Against this is Dr Herbenick’s evidence for D1:
“The translated version of D1 (Chengxiao; 1994) discloses a “gas health massager” that utilizes “pulsating air pressure to stimulate the six meridians” However, it appears that the pulsating air pressure described could be simply pulsating positive air pressure. Further, the D1 patent does not disclose a sexual stimulation device. The device of D1 is a therapeutic device for therapeutic purposes. Indeed, D1 does not reference female or male genitals, nor does it appear to be dimensioned for use on female or male genitals for purposes of sexual stimulation. It does not disclose features that would necessarily be suitable or safe for application to or stimulation of the genitals. A skilled person would understand that the opening of a clitoral stimulation device would need to be sized to specific dimensions to accommodate the clitoral glans. D1 does not mention any specific dimensions for the opening or that the opening is suitable to be applied to a clitoris.” (at [68])
I note that the opponent provided, as exhibit JK-1, what they said was an English translation of a decision of the German courts in respect of Novoluto GmbH’s German patent DE 10 2013 110 501. It is noted that this patent corresponds to Australian patent AU 2014323661. It is noted that the decision revoked the German patent.
As an initial point, I note that the matter was an opposition to DE 10 2013 110 501. As such, I am unsure whether it could be said to be a decision of a court. I am not sufficiently familiar with the German legal system to say one way or the other. Be that as it may, while the invention of DE 10 2013 110 501 is similar, it has to be noted:
(a)It is not the same as the present application; and
(b)The German matter did not appear to have the benefit of any evidence from persons skilled in the art.
As such, I cannot give the decision any weight.
Putting to one side the uncertainty of how D1 operates with respect to pressure, it remains the case that D1 is not for a sexual stimulation device and is not established that the PSA would be directly led to use D1 for that purpose.
Conclusion on inventive step in light of CGK plus s7(3) information
It follows that a lack of inventive step in light of CGK plus s7(3) information has not been established.
Inventive step in light of the combination of documents
As an alternative, the opponent submitted that a number of documents could be combined to establish a lack of inventive step. Specifically, the combination of D2 with D5 or D6, or one of D5 and D6 with D1 or D3. I observed at the hearing that there was no evidence that addressed a combination of documents. The opponent conceded that it was not addressed in evidence.
It follows that the opponent’s case on this point must fail. As noted above, s7(3)(b), dealing with the combination of documents, states that regard can be had to:
“a combination of any 2 or more pieces of prior art information that the skilled person … could … be reasonably expected to have combined” (my emphasis)
With no evidence as to what the PSA would consider “reasonable”, I cannot conclude that the claims lack an inventive step in light of the proposed combinations.
In any event, as noted by the applicant, the combination of D2 with D5 or D6 would not result in a device that generates any pattern of positive and negative pressure, since D2 only discloses using positive pressure. Moreover, it is difficult to see how the combination of one of D5 and D6 with either D1 or D3 is plausible given that D1 and D3 are not relevant to the question of sexual stimulation and given that there seems to be no motivation to change the direct stimulation technique of D5 and D6 with an air pressure stimulation.
The opponent’s case with respect to inventive step in light of a combination of documents fails.
Conclusion of inventive step
Consequently, the opponent’s case with respect to inventive step must fail. On the evidence before me, I cannot conclude that the claims lack an inventive step
Support
Subsection 40(3) as amended by the Raising the Bar Act requires that the claims must be supported by matter disclosed in the specification. The requirement of support can be summarised as requiring that the scope of the claims “should correspond to the technical contribution to the art” (see Fuel Oils/EXXON (T409/91) [1994] OJ EPO 653 (“EXXON”) at 659).
The requirement of support was more fully explained in EXXON as follows:
“in other words it is the definition of the invention in the claims that needs support. In the Board’s judgement, 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. 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, 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, citations omitted)
To determine whether the requirements of support are satisfied the following steps were set out in CSR Building Products Limited v United States Gypsum Company [2015] APO 72 (“CSR”) at [115]:
(a)   construe the claims to determine the scope of the invention as claimed,
(b)   construe the description to determine the technical contribution to the art, and
(c)   decide whether the claims are supported by the technical contribution to the art.
Claim 15 – pressure generating arrangement
The main focus of the opponent’s case of lack of support was in relation to the lack of limitation in claim 15 of the arrangement used to generate the pressure cycle. The opponent’s contention was that it was the particular componentry of the device that addressed the disadvantages identified in the specification. Therefore, in the opponent’s submission, the invention must be limited to the particular pressure field generating arrangement of the description – that is, one which had a first chamber and a second chamber having at least one opening for placing on the erogenous zone, and a connection element that connected the first chamber to the second chamber. To put it in a way that aligns with CSR, the opponent’s submission was that the technical contribution to the art was the dual chamber arrangement. The opponent noted that claim 15 did not require the use of this particular pressure generating arrangement.
The opponent drew my attention to the passage in the specification at page 3 line 26 to page 4 line 16:
“Thus, the devices of the prior art have the common disadvantage that the complexity of the arrangements generating negative pressure or positive pressure may be high and this device may have problems in respect of hygiene. Moreover, there is a problem of ease of handling the devices, which are frequently uncomfortable to hold and/or require habituation.
Furthermore, the devices of the prior art have the further common disadvantage in that habituation effects occur in the event of long-term, continuous or frequently recurring application of negative pressures.
Another disadvantage of some of the previously described vacuum devices is, firstly, that the negative pressure has to be limited by means of a control valve or a vacuum pump and, secondly, that the negative pressure is supposed to be relieved by means of manually opening a release valve before the suction cup is detached from the skin. Should one of the valves have a technical defect and/or the user operate the device incorrectly, there is a risk of injury in certain circumstances.
Thus, in view of the problems mentioned above, the object of the invention is to provide a stimulation device that has a simple construction, is easy and safe to use, and has a pronounced stimulation effect.”
The opponent then noted that the first sentence of the next paragraph was:
“The object of the invention is achieved by the stimulation device as claimed in claim 1”,
and noted that claim 1 included the dual chamber arrangement. As such, as I understand the argument, the features of the device are essential feature of the invention.
The opponent also noted discussions of the features and operation of the device in the specification at page 5 lines 4–10 and 22–30, page 6 line 2–22, page 7 lines 4–9, page 8 lines 5–10 and 20–22, page 9 lines 19–22.
The opponent noted that page 9 lines 1–5 stated:
“The principle of the invention means that the medium transported between the chambers is limited in volume to the maximum volume of the first chamber. Moreover, the transported volume can be further limited, as a result of its construction, by the maximum possible change in volume brought about by the drive unit.” (my emphasis)
The opponent submitted that this passage made it clear that principle of the invention arose from the particular construction of the device, in particular the construction of two chambers as the pressure generating component.
The applicant submitted that claim 15 did not lack support since it was not a device claim, and it was wrong to ask whether the scope of the claim is supported by the device aspects of the invention. In this regard, the applicant noted that the technical contribution the invention provided to the art of sexual stimulation methods was the direct stimulation of an erogenous zone (such as the vagina) through inserting an appendage of a sexual stimulation device into the body, and, at the same time, indirect stimulation of an erogenous zone (such as the clitoris) by forming and applying a modulated pattern of negative and positive pressures to the zone.
Addressing this, the applicant first noted that the specification started with:
“The present invention relates to a stimulation device having an appendage for erogenous zones, in particular for the clitoris, a system with a stimulation device, and methods for stimulating body parts.” (my emphasis)
The applicant submitted that the background discussion was not confined to device problems or issues. They took me to other parts of the background discussion highlighting problems with sexual stimulation methods.

The applicant noted the specification, at page 1 lines 15–25, highlighted problems with the stimulation method used:
“Direct stimulation of the clitoris, for example using a clitoral massage vibrator, is frequently problematic. The clitoris is usually a woman's most sensitive erogenous zone. The entire clitoris is highly innervated, making it particularly touch-sensitive and responsive to sexual stimuli. In this context, the clitoral glans, in which the nerve cords of the two crura meet, should be emphasized in particular. Thus, on the one hand frequent application of a clitoral massage vibrator for direct stimulation leads to habituation effects or conditioning of the stimulated erogenous zone, while on the other the first applications of such a device may require certain practice or familiarization. Moreover, indirect stimulation of the female erogenous zones may be insufficient, or it may be desired to intensity the stimulation effect.” (my emphasis)
They noted further issues that arose from the particular stimulation method of using negative pressure set out at page 2 lines 12–27:
“For indirect stimulation of erogenous zones, and particularly the clitoris, conventional vacuum devices are used to stimulate the erogenous zones of the person concerned without directly contacting the main area to be stimulated. Thus, for example, vacuum pumps for the primary or secondary female sexual organs are known, which usually have a suction cup for placing on the appropriate area and a hand pump. The negative pressure exerted by this type of device on the clitoris, for example, generates a negative pressure in the clitoris itself which is usually below the systolic blood pressure. This difference in pressure results in an enlargement of the clitoris and/or stimulates the blood flow in the affected area. This vascular clitoral engorgement serves both to promote desire by increasing sensitivity and for visual and tactile manipulation. The improved blood circulation also results in an increased secretion of vaginal moisture, which makes the stimulation more pleasurable. However, the manual operation of the hand pump is often onerous or irksome. In addition, the long-term or uninterrupted application of negative pressure with this device category too may result in habituation effects, which limit the effectiveness of the device in the long term.” (my emphasis)
The applicant also referred to page 4 lines 1–3 which is the second paragraph from the passage quoted above in paragraph [154] that the opponent directed my attention to as standing for the same point of a problem with habituation.
The applicant also noted that the specification discussed issues with an undesired drying effect and the failure to provide stimulation up to climax at pages 3 lines 3–13:
“Operation of the vacuum pump generates an ongoing air flow or air exchange in the chamber, in the area of the clitoris. This has the disadvantageous effect of drawing off by suction the vaginal moisture, which is increased as a result of the negative pressure, thus having a drying effect on the stimulated skin parts. Likewise, the drawn-off moist air results in contamination of the fluidically downstream vacuum arrangement, for example the vacuum pump. Such arrangements with vacuum pumps may thus be problematic from the point of view of hygiene, as vacuum pumps and the associated valves or ventilation components often have dead spaces and/or are difficult to clean. Furthermore, the device serves to treat the blood vessels in the clitoris and not to provide stimulation up to sexual climax.” (my emphasis)
The applicant also referred to page 6 line 1 – page 7 line 2 and page 10 lines 7–27 as setting out advantages of the sexual stimulation method as claimed in claim 15 (involving, as it does, indirect and direct stimulation aspects). They noted that page 10 lines 14–15 mentioned:
“the principle according to the invention of the combined direct and indirect stimulation” (my emphasis).
I am not satisfied that claim 15 lacks support. While I accept that the specification indicates problems with prior art devices, they cannot be viewed in isolation. It is clear from the applicant’s submissions that the specification indicates problems with the stimulation methods of the prior art. It is not, as the opponent submitted, focussed on the device to the extent that the technical contribution can be said to be a particular device. The overarching teaching of the specification is the application of positive and negative pressure cycles for sexual stimulation. Indeed, this is supported by the fact that the evidence did not establish this as known in the sexual stimulation art. Furthermore, this feature is clearly a principle of general application. The specification makes it clear that sexual stimulation is achieved using a pressure cycle and not by the use of only a particular device.
While a device is described, and claimed, it is in the context of issues that arise from prior art negative pressure devices. To the extent that those devices had problems with hygiene, the dual chamber arrangement that the opponent focusses on can be seen as a technical contribution. That contribution may have relevance to the proper scope for claims to the device and system inventions, but, in this case, it does not have relevance to the proper scope of the method claim. I cannot see any justification for limiting claim 15 to a specific device.
Other lack of support
The opponent also submitted, more or less as an aside, that, since claims 15 and 21 were not limited to stimulation of the clitoris and claims 1, 15 and 21 did not require that the opening of the connection element into the second chamber be located opposite, and directed to, the body part to be stimulated, they travelled beyond the invention disclosed.
The applicant noted that the specification stated that the invention was described by reference to “… the exemplary application to the clitoris” (page 6, line 13), but it was clear that the invention was not limited in its application to the clitoris. Page 10 lines 14–18 stated:
“… the principle according to the invention of the combined direct and indirect stimulation may also be applied to other body parts, or the erogenous zones thereof … The combination of direct and indirect stimulation results in an improvement in the stimulation effect and a versatile applicability of the stimulation device.” (my underlining)
Insofar as the opening of the connection element was concerned, the applicant noted that the specification stated that the connection element opening “may” be located opposite and “preferably directly opposite” to the body part to be stimulated. That is, it was a preferred, but not essential, feature of the device.
I agree with the applicant. I do not see anything in the specification that requires claims 1, 15 and 21 to be limited in the manner contended for by the opponent.
Clarity
The statutory basis for clarity is given at s40(3) of the Act which states that 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]; (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):
“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, commonsense manner…Absurd constructions should be avoid…and mere technicalities should not defeat the grant of protection…”
Where terms in claims are unclear, recourse may be made to the specification to resolve the ambiguity; see Interlego AG v Toltoys Pty Ltd [1973] HCA 1 at [14]; (1974) 130 CLR 461 at 479:
“If the expression is not clear it is then permissible to resort to the body of the specification to define or clarify the meaning of words used in the claim without infringing the rule that clear and unambiguous words in the claim cannot be varied or qualified by reference to the body of the specification …”
The opponent submitted several items under this ground. They asserted:
(a)claim 15 was not clear because the phrase “for sexual pleasure and not for medical therapy” does not clearly define the bounds of the distinction;
(b)claim 21 was not clear because it defines positive and negative pressure by reference only to “a reference pressure” and third parties would be unable to determine whether the use of a pressure device involving a range of pressures would infringe the claim;
(c)claim 1 was unclear as there was no antecedent for “the clitoris” at line 2;
(d)the claims in general were unclear due to the use of the terms “direct and indirect stimulation”;
(e)the claims in general were unclear since they referred to the clitoris, which was an external item, thereby rendering the scope of the claims unclear (also noting that a part of a human body cannot be subject of a claim);
(f)the claims in general were unclear since it was not clear what the dimensions of some of the features were, given that the dimensions were based upon the shape and dimensions of the clitoris, which varies from woman to woman;
(g)it was unclear from claim 1, defining only a pressure field (which is scalar rather than vector) that the air is directed at the body part to be stimulated; and
(h)claim 21 was not clear because, while it defined an appendage, it was unclear how, or in what way the appendage was connected to any element, let alone the pressure field generating arrangement.
Given my discussion regarding construction of the terms “positive pressure”, “negative pressure”, “medical therapy” and “sexual stimulation” at [41]–[49] above, it follows that the instances of lack of clarity set out in points (a) and (b) do not arise. The PSA would understand when their device would infringe the claims.
For point (c), I cannot understand how the opponent could be confused by this. It is clear what the claim is saying – the pressure field generator is suitable for stimulation of the clitoris. I cannot conceive of the PSA being confused and asking themselves “What clitoris is the claim referring to?” (and I note this caused no confusion for Mr Witt or Dr Herbenick). This point has no merit.
As to point (d), again, neither Mr Witt nor Dr Herbenick confessed to being confused by what these meant. The specification also makes the difference clear. At page 6 lines 10–12, the specification states:
“In this way, the massaging effect created by the pressure field is generated indirectly, i.e. without the skin part to be stimulated being in direct contact with a solid body such as a vibrator.”
This distinction is adhered to consistently throughout the specification. The difference between direct stimulation, where there is physical contact between a solid, physical item, and indirect stimulation, where there is a variation in pressure of a medium, is clear from the specification as a whole.
In regard to point (e), this, too, is a submission without merit. True it is that the claims refer to the clitoris. However, as is obvious from the claims themselves, in no way is the clitoris somehow being detached from its owner and brought into the claim to form part of the device. These references are not unclear.
Point (f) is also not anything that gives rise to a lack of clarity. As submitted by the applicant, requiring “an opening for placing over the clitoris” (see, e.g. claim 1) provides a workable standard for the PSA. I also note the following apt analogy from [52(b)] of the applicant’s written submissions:
“It cannot seriously be suggested that the (generally minor) variance in clitoral shapes and dimensions would prevent the addressee from determining whether any given chamber opening is suitable for placing over the clitoris. Consider that e.g. patent claim to condoms are perfectly clear, despite the variance in penile shapes and sizes.”
Point (g) seems, to me, to be more of an observation about potential lack of support in that it is seeking to have the claims explicitly limited to the air being directed at the body part to be stimulated. Lack of support has not been established. I note that the opponent referred to paragraph [10] of Witt 2 in its submission when raising this point (underlining in original):
“Further, having now reviewed the description, I note it states on p. 4 l. 27 - p. 5 l. 2 that the separation into a first and second chamber is used to direct the pressure field onto the skin to be stimulated. I note that it is not the pressure field that is directed but rather air accelerated by fluid transfer from the first chamber to the second. It is unclear from claim 1 that the air is directed at the body part to be stimulated, rather, it only describes pressure field which is scalar rather than vector. This way a device according to claim 1 adds the complexity and the hygienic problems without taking advantage of the directed air flow.”
I cannot see any lack of clarity. Notwithstanding the use of “unclear”, this paragraph is very much directed to the scope of the claim, not its clarity. I note Dr Herbenick in her evidence states:
“Referring to the Witt declaration 2, paragraph 10, I disagree with Mr. Witt that the descriptions of how the air pressures are directed to the body part (e.g., the clitoris) are unclear. In my opinion, the claims and the drawings provided in the Novoluto patent application…and the patent narrative make this quite clear. Given the size of the chamber and the size of a typical clitoris (which was well known prior to March 2015), as well as the drawings and descriptions provided, I am puzzled by Mr. Witt’s statement.”
The applicant noted, as did Dr Herbenick, that it would have been understood that positive and negative pressures result in a directional flow of air (see figures 4–6 at [15] above).
Finally, as to point (h), it is difficult to reconcile the opponent’s submission to the words of the claim 21. The appendage is defined as a part of the device; clearly it is connected. While I accept that the claim does not say how it is connected, the absence of this does not give rise to a lack of clarity.
Utility
Section 18(1)(c) of the Act requires that the invention (so far as claimed) is useful. Section 7A provides the definition for “useful”. The principles of utility have been summarised by the Full Court of the Federal Court in Artcraft Urban GroupPty Ltd v Streetworx Pty Ltd [2016] FCAFC 29 at [120]-[121] (with references omitted):
“The ‘basic principle’ of inutility is that if an invention ‘does what it is intended by the patentee to do, and the end attained is itself useful, the invention is a useful invention’. What the invention is ‘intended’ to do is a matter to be gathered from ‘title and the whole of the specification’.
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.”
The opponent’s written submissions (at [178]–[181]) on this ground were brief. In totality they were as follows (italics in original, footnotes omitted):
“The promise of the invention is to address the disadvantage caused by the complexity of the arrangements generating negative pressure or positive pressure and the consequential problems in respect of hygiene.
However, the claims encompass embodiments that do not achieve that promise.
In particular, claim 15 encompasses the use of a device that achieves none of the purported promises of the invention. There is no requirement for two chambers or a connecting hose which the Opposed Application asserts results in improved hygiene and ease of manufacture. Claim 15 and its appended claims are therefore inutile.
Furthermore, claims 1, 15 and 21 do not require that the opening of the connection element is opposite and directed to the body part to be stimulated, a device or method according to claims 1, 15 or 21 does not take advantage of the two-chamber set up because the air accelerated by the nozzle is not specifically directed towards the body part required. Accordingly the claims lack utility.”
The applicant submitted that the opponent’s submissions were just a rehashing of their support arguments. They noted that claim 15 was directed to a method and, to the extent that promises were made in the specification about the hygiene, they were in relation to the device. In the applicant’s submission, such promises were not made in respect of the method aspect of the invention, which was concerned with the improved efficacy of the sexual pleasure.
The applicant also noted that the feature of the opening of the connection element being opposite and directed to the body part to be stimulated (which the opponent says is required in claims 1, 15 and 21) was a preferred feature and, in any event, the claims were limited to require that the device indirectly stimulate the clitoris (in claims 1 and 21) or erogenous zone (in claim 15) by means of the interaction between the identified device components. They submitted no lack of utility was established.
I am inclined to agree with the applicant. As a first point, I do not necessarily agree with the promise put forward in the opponent’s submissions is the only promise. Analogously to the discussion of the problem relevant to inventive step, the promise is not just addressing the complexity of the prior art arrangements. There is also the promise around sexual satisfaction. Addressing the utility issue, and given my conclusion on support that there are no features “missing” (as it were) from the claim, no data has been supplied by the opponent that substantiates the opponent’s assertion that what is there in the claims is incapable of not achieving the promises of the invention. 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’s case clearly fails on this ground.
Conclusion
The opposition is unsuccessful. None of the grounds have been made out.
Costs
The opposition has been unsuccessful. The normal approach is that costs follow the event and I see no reason to depart from this. I will award costs, according to Schedule 8, against the opponent, EIS GmbH.
Greg Powell
Delegate of the Commissioner of Patents
Annex A
1.A stimulation device for stimulation of erogenous zones, having:
a pressure field generator for indirect stimulation of the clitoris with:
a first chamber; and
a second chamber having an opening 10 for placing over the clitoris; and
a connection element that connects the first chamber to the second chamber; and
a drive unit that varies the volume of the first chamber such that a stimulating pressure field is generated via the connection element in the second chamber; and
a control device that drives the drive unit, wherein the control device has at least one operating element for setting the modulation of the pressure field; and
a housing in which the pressure field generator and the control device are accommodated; and
an appendage for direct stimulation of the vagina, wherein the appendage takes the form of a dildo that can be inserted into the vagina;
wherein the pressure field generated in the second chamber comprises a pattern of negative and positive pressures, modulated onto normal pressure; and
wherein the first chamber is connected exclusively to the second chamber via the connection element; and
wherein the housing and the appendage are joined to each other and movable with respect to each other for adapting to the human anatomy such that the opening of the second chamber can be placed over the clitoris for indirect stimulation, while the appendage can simultaneously be inserted into the vagina for direct stimulation, so that the area of the body between the clitoris and the vagina can also be stimulated through the combined direct and indirect stimulation.
2.A stimulation device as claimed in claim 1, in which an opening of the connection element is opposite the body part to be stimulated and is directed towards the body part to be stimulated.
3.A stimulation device as claimed in one of claims 1 to 2, in which the second chamber is made of a flexible material and/or of an at least partially transparent material and/or is adapted to the shape of the vaginal labia minora such that the latter is completely covered by the opening of the second chamber.
4.A stimulation device as claimed in one of claims 1 to 3, in which the second chamber is made in one piece with the connection element and the first chamber.
5.A stimulation device as claimed in one of claims 1 to 3, in which the second chamber of the stimulation device is arranged to be replaceable.
6.A stimulation device as claimed in one of claims 1 to 5, in which the second chamber has a sealing support part for enlarging the contact surface of the second chamber on the skin.
7.A stimulation device as claimed in one of claims 1 to 6, in which the stimulation device has a light, for lighting the second chamber.
8.A stimulation device as claimed in one of claims 1 to 7, in which the connection element has an internal shape and an opening to the second chamber that provide a form such that the pressure field is modulated in direction and intensity.
9.A stimulation device as claimed in one of claims 1 to 8, in which the stimulation device is a hand-held device.
10.A stimulation device as claimed in one of claims 1 to 9, in which the appendage is connected to the section of the housing that accommodates the pressure field generator via a joint.
11.A stimulation device as claimed in one of claims 1 to 10, in which the appendage has a vibration device.
12.A stimulation device as claimed in one of claims 1 to 11, in which the appendage is mounted on the section of the housing that accommodates the pressure field generator such that the housing of the stimulation device is unitary in form.
13.A stimulation device as claimed in one of claims 1 to 12, in which the appendage is an elongate lens-shaped body which is adapted such that the appendage can be inserted into the female vagina.
14.A system with a stimulation device as claimed in one of claims 1 to 13, having:
a remote control device arranged separately from the stimulation device,
wherein the control device of the stimulation device can be remotely controlled by the remote control device.
15.A method for stimulating erogenous zones for sexual pleasure and not for medical therapy, having the following steps:
inserting an appendage of a stimulation device into a human body; and
forming, by a pressure field generator of the stimulation device, a pressure field directed towards a body part; and
modulating the pressure field in a pattern of negative and positive pressures with respect to normal pressure.
16.A method for stimulating erogenous zones as claimed in claim 15, in which the stimulation effect is individually influenced by modulating the pressure field by means of an operating element.
17.A method for stimulating erogenous zones as claimed in claim 15 or 16, in which the modulation is pulsed.
18.A method for stimulating erogenous zones for sexual pleasure and not for medical therapy, with the stimulation device as claimed in one of claims 1 to 13, having the following steps:
inserting the appendage into a human body; and
placing the second chamber over the body part;
forming a pressure field directed towards the body part;
modulating the pressure field in a pattern of negative and positive pressures with respect to normal pressure.
19.A method for stimulating erogenous zones as claimed in one of claims 15 to 18, in which the appendage vibrates after insertion.
20.Use of the stimulation device as claimed in one of claims 1 to 13 as a sex toy for stimulating the female clitoris.
21.A stimulation device for erogenous zones, comprising:
at least one pressure field generating arrangement with:
at least one first chamber;
at least one second chamber having at least one opening for placing on a body part; and
at least one connection element that connects the at least one first chamber to the at least one second chamber;
a drive unit that varies the volume of the at least one first chamber such that a stimulating pressure field is generated via the at least one connection element in the at least one second chamber;
a control device that activates the drive unit; and
an appendage;
wherein the stimulating pressure field generated in the at least one second chamber comprises a pattern of negative and positive pressures, modulated onto with respect to a reference pressure;
wherein the at least one first chamber is connected to the at least one second chamber solely by the at least one connection element, and
wherein the appendage is a dildo configured to be inserted into a vagina.
22.The stimulation device as claimed in claim 21, wherein at least one opening of the at least one connection element is opposite the body part to be stimulated and is directed towards the body part to be stimulated.
23.The stimulation device as claimed in claim 21, wherein the at least one second chamber is at least one of: a flexible material, a transparent material, or fitted to the shape of a vaginal labia minora such that the vaginal labia minora is completely covered by the opening of the at least one second chamber.
24.The stimulation device as claimed in claim 21, wherein the at least one second chamber is made in one piece with the at least one connection element and the at least one first chamber.
25.The stimulation device as claimed in claim 21, wherein the at least one second chamber of the stimulation device is arranged to be replaceable.
26.The stimulation device as claimed in claim 21, wherein the at least one second chamber is arranged separately from the stimulation device; and the at least one connection element is a hose or tube.
27.The stimulation device as claimed in claim 21, wherein the at least one second chamber has a sealing support part for enlarging a contact surface of the at least one second chamber on skin.
28.The stimulation device as claimed in claim 21, wherein the respective modulation of the stimulating pressure field may be changed by means of an operating element.
29.The stimulation device as claimed in claim 21, wherein the stimulation device has a light for lighting the at least one second chamber.
30.The stimulation device as claimed in claim 21, wherein the at least one connection element has an internal shape and an opening to the at least one second chamber that provide a form such that the stimulating pressure field is modulated in direction and intensity.
31.The stimulation device as claimed in claim 21, wherein the stimulation device is a hand-held device.
32.The stimulation device as claimed in claim 21, wherein the appendage is mounted on a housing to be movable.
33.The stimulation device as claimed in claim 21, wherein the appendage is connected to a section of a housing that accommodates the at least one pressure field generating arrangement via a joint.
34.The stimulation device as claimed in claim 21, wherein the appendage is a stimulation aid for insertion into a human body.
35.The stimulation device as claimed in claim 21, wherein the appendage has a vibration device.
36.The stimulation device as claimed in claim 21, wherein the appendage is mounted on a section of a housing that accommodates the at least one pressure field generating arrangement such that the housing of the stimulation device is unitary in form.
37.The stimulation device as claimed in claim 21, wherein the stimulation device is configured in size, movability and shape to fit a female anatomy such that the at least one pressure field generating arrangement is configured to indirectly stimulate a clitoris of a woman while the appendage is configured to simultaneously be inserted into a vagina of the woman.
38.The stimulation device as claimed in claim 21, wherein the appendage is a handle for holding the stimulation device.
39.The stimulation device as claimed in claim 21, wherein the appendage is an elongate lens-shaped body configured to be inserted into the vagina.