J.M. Van Der Hoeven BV v Houweling Nurseries Oxnard, Inc - [2016] APO 6

IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
J.M. van der Hoeven BV v Houweling Nurseries Oxnard, Inc [2016] APO 6

Patent Application: 2010328690

Title:Greenhouse and forced greenhouse climate control system and method

Patent Applicant:                   Houweling Nurseries Oxnard, Inc
Opponent:  J.M. van der Hoeven BV
Delegate:  Greg Powell
Decision Date:  12 February 2016
Hearing Date:  20 November 2015, in Canberra, further submissions received on 27 November 2015, 8 December 2015 and 22 December 2015

Catchwords: PATENTS – opposition to the grant of a patent – opposition governed by the Patents Act as amended by the "Raising the Bar" provisions – clarity – claims are clear – novelty – “whole of contents” citation prima facie not entitled to earlier priority date – claims novel – inventive step – document in combination with common general knowledge – evidence does not show that it would be a matter of routine to arrive at the claimed invention – opposition unsuccessful

Representation: Patent applicant: Julian Cooke of counsel, assisted by Paul Dewar, partner of Davies Collison Cave
Opponent:Craig Smith of counsel, assisted by Andrew Dark, patent attorney of Dark IP

IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Patent Application: 2010328690

Title:Greenhouse and forced greenhouse climate control system and method

Patent Applicant: Houweling Nurseries Oxnard, Inc
Date of Decision: 12 February 2016
DECISION
The opposition does not succeed.
Costs awarded against J.M. van der Hoeven BV.
REASONS FOR DECISION

As examination was requested on this application after 15 April 2013, the present opposition 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 and 60 of the Act apply to the present case as a consequence of Schedule 1, items 55(1)(e) and 55(4)(b) of the Raising the Bar Act.
Background
Patent application number 2010328690 was filed as an application under the Patent Cooperation Treaty on 7 May 2010. The application claims priority from US patent application 12/636549 filed on 11 December 2009. The applicant is Houweling Nurseries Oxnard, Inc (the applicant). The application was examined and accepted by the Commissioner, and subsequently opposed by J.M. van der Hoeven BV (the opponent). A hearing was held on 20 November 2015 in Canberra to decide the opposition. The applicant was represented by Julian Cooke of counsel, assisted by Paul Dewar (from Davies Collison Cave). The opponent was represented by Craig Smith of counsel, assisted by Andrew Dark (from Dark IP).

On 22 October 2015, approximately one month before the hearing, the applicant filed amendments. On 27 October 2015, the Commissioner informed both parties that the amendments would not be considered until after the completion of the hearing, unless the opponent advised that the amendments removed the need for a hearing. No response was received from the opponent. Consequently, this decision is based upon the claims as accepted.
Based on discussions during the hearing, the applicant filed further submissions on 27 November 2015 and the opponent filed submissions in response on 8 December 2015. The opponent also provided a response on 22 December 2015 to a question I asked during the hearing and in subsequent correspondence.
The opposition
Following a decision by the Deputy Commissioner on 6 February 2015 (see J.M. van der Hoeven BV v Houweling Nurseries Oxnard, Inc. [2015] APO 4) the statement of grounds and particulars was amended on 20 February 2015. The statement asserted that the application lacked novelty, inventive step, sufficiency, definition, clarity and, oddly, fair basis. While the opponent’s written submissions addressed lack of novelty and inventive step, lack of sufficiency, lack of definition, lack of clarity and lack of fair basis, at the hearing only the grounds relating to lack of clarity, definition, novelty and inventive step were pressed.
The parties relied upon evidence by several declarants. Evidence in support consists of a declaration by Dr Bianca Capra. Evidence in answer consists of a declaration by William Hunter. While the opponent filed evidence in reply consisting of a further declaration by Dr Capra, as well as declarations by Dr Emilie Sauret and Hubertus Dries, at the hearing the opponent stated that they would be relying only upon the Capra declaration as evidence in reply. I will refer to the relevant parts of the evidence where appropriate.
As a consequence of the amendment to section 60(3A) by the Raising the Bar Act, the standard of proof that applies to this opposition is the balance of probabilities. The Commissioner can refuse a patent application if satisfied on the balance of probabilities that a ground of opposition exists. Nevertheless, it is the opponent who carries the onus of proof.
The specification
The specification relates to climate control systems for greenhouses to control the temperature and environmental conditions within the greenhouse.
After describing various prior greenhouse climate control systems, the specification describes the present invention. The present invention employs at least one conduit system located within a greenhouse to provide air to regulate the environmental conditions in the greenhouse. The conduit system employs an inner conduit surrounded by an outer conduit. There are holes down the length of the inner conduit that allow air which has been introduced into the inner conduit to pass into the outer conduit. There are holes down the length of the outer conduit that allow the air to then pass into the greenhouse. To provide equal distribution of air into the greenhouse along the length of the outer conduit, the holes of the inner conduit are offset from the holes in the outer conduit. The described offset is an angular offset such that the air passing through the holes in the inner conduit initially strikes the wall of the outer conduit and has to travel around part of the circumference of the outer conduit before exiting through the outer holes.
The conduit system is shown in cross section in figure 12 below:
In this system, air in the inner conduit 204 passes, via holes 208, into the space 214 between the conduits. The air then passes through holes 206 in the outer conduit 202 into the greenhouse space. The arrangement allows pressure and temperature differences in air that exist along the length of the inner conduit to be compensated for by the air being retained for long enough in the outer conduit to allow these differences to be minimised. This results in an even flow of air being introduced into the greenhouse.

The specification ends with 19 claims as follows:
1. A greenhouse, comprising:
a growing section;
a air or gas distribution system within said growing section, said distribution system comprising one or more conduits for distributing air or gas within said greenhouse, said conduits comprising an inner conduit within an outer conduit, said conduits carrying air or gas having different pressures along their length, with a main airflow entering said growing section from said distribution system passing into said conduits, said inner conduit comprising inner conduit holes to allow said main air flow within said conduits to pass from within said inner conduit and said outer conduit and said outer conduit comprising outer conduit holes that allow air passing from said inner conduit to pass into said growing section, wherein said inner and outer conduit holes are offset such that each inner conduit hole is offset from each outer conduit hole such that said inner and outer conduit holes are configured to compensate for turbulence or pressure differences within said conduits to provide substantially equal distribution of air or gas throughout said growing section.
1. The greenhouse of claim 1, wherein said conduits have interior compartments.
1. The greenhouse of claim 1, wherein said conduits are arranged to reduce directional forces experienced by air distributed in said growing section from said main air flow in said conduits.
1. The greenhouse of claim 1, wherein said conduits are arranged to compensate for the temperature differential between said main air flow and said growing section.
1. The greenhouse of claim 1, wherein the amount of air exiting said conduits vanes along the length of said conduits to compensate for turbulence or pressure differences with said conduits.
1. The greenhouse of claim 1, wherein the distance between said inner and outer conduit holes along said conduits is varied to compensate for turbulence or pressure differences within said conduits.
1. The greenhouse of claim 1, wherein the size of said holes is varied along said conduits to compensate for turbulence or pressure differences within said conduits.
1. The greenhouse of claim 1, comprising a compartment between said inner and outer conduits.
1. The greenhouse of claim 1, comprising a plurality of compartments between said inner and outer conduits.
1. The greenhouse of claim 1, comprising a plurality of compartments between said inner and outer conduits to reduce directional forces on air exiting said conduits.
1. The greenhouse of claim 11, wherein said compartments are arranged to compensate for the temperature differential between said main air flow and said growing section.
1. A greenhouse air distribution system, comprising:
a plurality of tubes to distribute air within a greenhouse, said tubes comprising an inner tube within an outer tube; and
a system for providing a main air flow to the interior of at least one of said inner tubes, the air pressure within said inner tube varying along its length, said inner tube comprising inner tube holes to allow air to pass from within said inner tube and said outer tube comprising outer tube holes that allow for air passing from said inner tube to pass into said greenhouse, wherein said inner and outer tube holes are offset such that each inner tube hole is offset from each outer tube hole, such that said inner and outer tube holes are configured to compensate for said pressure variations to allow said tubes to provide for a substantially uniform air distribution along their lengths.
1. The greenhouse of claim 12, wherein said tubes have interior compartments.
1. The system of claim 12, wherein the pattern or size of said inner or outer tube holes vary to compensate for said pressure variations.
1. The system of claim 12, wherein said tubes are arranged to reduce directional forces experienced by air distributed in said greenhouse from said air flow in said tubes.
1. The system of claim 12, wherein said tubes are arranged to compensate for the temperature differential between said main air flow and said greenhouse.
1. The system of claim 12, comprising a plurality of compartments between said inner and outer tubes.
1. A greenhouse, comprising:
an enclosed growing section;
an enclosed end gable adjacent to said growing section, said end gable arranged to flow air into said growing section; and air distribution tubes within said growing section, said tubes comprising an inner tube within an outer tube, said inner tube comprising inner tube holes to allow air to pass from within said inner tube and said outer tube comprising outer tube holes that allow for air passing from said inner tube to pass into said growing section, wherein said inner and outer tube holes are offset such that each inner tube hole is offset from each outer tube hole, such that said inner and outer tube holes are configured to compensate for the heat differential between said air in said tubes and in said growing section.
1. The greenhouse of claim 18, comprising compartments within said tubes arranged to allow air from within said tube to pass into said compartment, and to pass from said compartments into said growing section.
Clarity and lack of definition
In their written submissions filed prior to the hearing, the opponent raised certain issues under the heading of “lack of definition” and then raised the same issues under the heading “lack of clarity”. The applicant, in their written submissions, while not taking issue with this approach, submitted that “lack of definition” had little work to do and its purpose was to ensure that the specification included at least one claim defining what the patentee has exclusive rights to during the patent term. The opponent submitted that these two issues had substantial overlap and referred to [808] – [811] in Wake Forest University Health Sciences v Smith & Nephew Pty Ltd (No 2) [2011] FCA 1002 and [164] – [183] of Albany Molecular Research Inc v Alphapharm Pty Ltd [2011] FCA 120 as support for the overlap. Even noting what is said in those cases, it seems clear to me that the opponent is taking issue with the scope of certain terms and the effect that has on ascertaining whether a person could ascertain “whether or not what he proposes to do falls within the ambit of the claim” (Monsanto Co v Commissioner of Patents (1974) 48 ALJR 59). To that end I will proceed on the basis of addressing clarity as the conclusion is the same for both grounds.
The correct approach 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 also note what Middleton J said in Eli Lilly and Company Limited v Apotex Pty Ltd [2013] FCA 214, 100 IPR 451 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.”
The opponent raised numerous points of lack of clarity. In essence the opponent’s position was that all claims, except claims 9, 10, 17 and 19 lacked clarity for various reasons.
Claim 1
The opponent stated that claim 1 was deficient because:
(i)it was unclear what was meant by “offset”; and
(ii)it was not clear what was meant by “compensate” or, as an alternative, “substantially equal distribution”.
Regarding (i), the opponent submitted that it was not clear to what extent the holes in the inner and outer conduit had to be offset. There was a question of whether they were partially offset or fully offset. The opponent pointed to the analysis of Hunter in the evidence in answer which concluded that, to achieve the sought after effect, the holes must be fully offset and, preferably radially offset. They stated that the specification did not describe it this way and, indeed, stated in the description at paragraph [70] that any offset was usable. As such, it was unclear what was meant by “offset”.
The applicant noted that the claims required each inner conduit hole to be offset from each outer conduit hole and that this was consistent with the claim defining a full offset. The applicant also noted to paragraph [70] of the description, while it did say that different offsets could be used, that statement was made in the context of the embodiment in figure 12 shown above which required a radial offset such that there was no overlap.
To my mind, the term “offset” is clear in the context of the specification. Noting the specification and, in particular, the use of the word “each” in the claims (as noted by the opponent), it seems clear to me that the holes are offset such that there is no overlap between the holes in each conduit. Whether that is achieved by a longitudinal offset (i.e. along the longitudinal axis of the conduits) or radially (as shown in figure 12 set out above) is not an issue. The claim, in my opinion, excludes any arrangement which has no, or a partial, offset. I note that this position is consistent with the use of the term in the description.
Regarding (ii), the opponent submitted that it was simply not clear what was meant by “compensate”. There was a question of degree. The opponent pointed to the evidence of Hunter which made it clear that even having a second conduit would be enough to achieve some level of compensation. The question was how much compensation was required? While the applicant pointed to the subsequent words of the claims that qualified the compensation to being enough to “provide substantially equal distribution of air or gas throughout the growing section”, the opponent submitted that that just shifted the question to what was meant by that later phrase. In regard to the later phrase, the applicant referred to Albany Molecular Research Inc v Alphapharm Pty Ltd (supra) which found that, until an amendment to insert hard limits into the specification in that decision, the term “substantially pure” had been considered unclear. The applicant noted that, in the present case, no benchmark was described, or no reported trial results that set a level for “substantially equal distribution”.
The applicant submitted that Albany was distinguishable as it was dealing with a relative term which was not the case in the present claims. The submission was that in Albany, the person skilled in the art could not work out what was, or was not, pure.
As I have noted above, the requirement for clarity is understood to be satisfied if there would be “no difficulty in a third party ascertaining whether or not what he proposes to do falls within the ambit of the claim” (Monsanto (supra)). Lack of precision in language is acceptable, within limits:
“Lack of precise definition in claims is not fatal to their validity, so long as they provide a workable standard suitable to their intended use.”
(Austal Ships Sales Pty Ltd v Stena Rederi Aktiebolag [2008] FCAFC 121)
In the present case, I believe that the claim provides a “workable standard”. While it is certainly broad, in claiming by result, I do not think this is a situation where a person would be required to carry out thousands of tests over years of work to determine whether their solution was within the scope of the claim. None of the evidence states this either. I have no doubt that this is a workable standard.
Claim 2
The opponent submitted that claim 2 lacked clarity because it was not clear if the “compartments” defined in the claim was in the inner conduit, the outer conduit or both. The applicant submitted that, read with claim 1 respectively, the claim was clear.
To my mind, the scope of the claim is clear. What it is defining is that there are interior compartments in the conduits/tubes. There seems to be no other construction available to create uncertainty.
Claim 3
The opponent submitted that claim 3 lacked clarity because, when read carefully, it was not able to be given any meaning. The opponent submitted that the phrase “arranged to reduce directional forces experienced by air distributed in said growing section” was unclear for a number of reasons. It wasn’t clear because if the “air” was meant to be the air already distributed then it was no longer acting under any force. The opponent also submitted that it was not clear what benchmark would be used to determine if the force was reduced. The opponent submitted that if claim 3 was meant to be a limiting functional requirement from claim 1 (to which it is directly appended), then it was not clear what it was that achieved this. Knowing that having a second conduit within the greenhouse would reduce the directional impact, the opponent submitted that the benchmark could not be having a second conduit. Moreover, the fact that offset holes would reduce the pressure differential would, in the opponent’s opinion, also reduce the directional impact and, therefore, it had to be something other than the holes. As such, the opponent concluded that it was not possible to determine what claim 3 defined.

The applicant submitted that claim 3 was a claim by result and, as such, any arrangement that achieved the result was permitted. The applicant stated that the claim was defining that the inner and outer conduits were positioned relative to each other so that the air that was passed through the conduits and out of the conduit into the greenhouse has no, or reduced, directional forces compared to the air flow in the inner conduit.
I am inclined to agree with the applicant. While I accept that claim 3 is not crystal clear, to my mind it defines what the applicant says it defines. While I questioned the applicant as to whether “said conduits” in this claim referred to either the conduit which was composed of the inner and outer conduits, or the inner and outer conduits individually, from the statement in the claims that the main air flow is “in said conduits”, I am satisfied that “said conduits” in this claim are the inner and outer conduits. As such, the claim provides the workable standard that is required.
Claim 4
The opponent submitted that claim 4 lacked clarity for a similar reason to claim 3, in that the claim purportedly defined a limiting integer but provided no detail as to how this was achieved.

The applicant made the same sort of submissions as they made against claim 3. That is, the claim was a claim by result and, as such, any arrangement that achieved the result was permitted, the conduits were the inner and outer conduits and they were arranged to achieve a result.

For similar reasons, I believe that claims 4 provide a workable standard. Again, they are far from perfect, but it seems clear that each defines the inner and outer conduits or compartments being arranged such that the temperature difference between the flow of air in the conduits and the air in the greenhouse is reduced.
Claims 5, 6, and 7
The opponent submitted that claims 5, 6 and 7 lacked clarity as they were at odds with claim 1. The opponent also mentioned, again, the issue of what benchmark is being used to assess the level of compensation. The opponent submitted that claim 1 required the holes in the conduits being offset to compensate for turbulence or pressure differences. However, claim 5 required the amount of air exiting the conduits to be varied to compensate for turbulence or pressure differences, claim 6 required the distance between the inner and outer conduits to be varied to compensate for turbulence or pressure differences, while claim 7 required the size of the holes be varied to compensate for turbulence or pressure differences.

The applicant responded stating that the only sensible meaning that could be given to claim 5 is that it is referring to the air exiting the inner conduit into the outer conduit. The applicant stated that there was no benchmark problem in claim 7 for reason already advanced for earlier claims. The applicant provided no further comments on claim 6.
To a certain extent I do not agree with either party. While I note the different mechanisms in claims 1, 5, 6 and 7 to compensate for turbulence or pressure differences, I do not read the claims as defining anything inconsistent. I read claims 5, 6 and 7 as defining additional measures that could be taken along with the offsetting of the holes. I note that this is consistent with the description. As such I do not adopt the reasoning of the applicant that the conduit being referred to in claim 5 must only be the inner conduit. On the benchmark issue, again, I believe that these claims provide a workable standard and are sufficiently clear.
Claim 8
The opponent submitted that claim 8 was not clear as it was redundant in light of claim 1. Noting that the use of an inner and outer conduit necessarily created a compartment between the two conduits, in defining a compartment between the inner and outer conduits, claim 8 was defining what was already there.
Notwithstanding that the applicant made no submissions about this point, to my mind claim 8 is clear. Even if it is accepted that it is defining what is already there, there is no doubt as to what it is defining. It cannot be said that the scope of the claim is in doubt.
Claims 11–16 and 18
The opponent submitted that these claims aligned with earlier claims and were unclear for the same reasons. The alignment was as follows:

(i)claim 11 aligned with claim 4;
(ii)claim 12 aligned with claim 1;
(iii)claim 13 aligned with claim 2;
(iv)claim 14 aligned with claim 6;
(v)claim 15 aligned with claim 3;
(vi)claim 16 aligned with claim 4; and
(vii)claim 18 aligned with claim 4

It follows, for the reasons I have given above, that I consider these claims to be clear. It follows that the claims define the invention.
Novelty
It is a requirement of subsection 18(1) of the Act that the invention, so far as claimed in any claim, is novel. Under subsection 7(1), an invention is taken to be novel unless it is not novel in the light of the prior art base. Information in a document forms part of the prior art base for the purposes of novelty if it was published before the priority date of a claim, or the information was contained in a specification published after the priority date of the claim under consideration and, if that information is, or were to be, the subject of a claim of the specification, that claim has, or would have, a priority date earlier than that of the claim under consideration (referred to as “whole of contents” novelty).
The opponent relied upon a single document under whole of contents novelty. The document was PCT publication WO 2011/028100 (referred to during the hearing as “D2”). This PCT application designated Australia and, therefore, is considered to be an application under the Act.
As noted above, it is a requirement for a whole of contents novelty citation that the information in the citation, if it were to be claimed, would have a priority date earlier than the priority date of the claim under consideration. In the present case the priority date of the claims of the present application was not challenged. I am not aware of any reason why the priority claim is invalid and, therefore, the priority date of each claim is 11 December 2009. As such, the priority date of D2 must be earlier than this date.
At the hearing I observed that D2 had a claimed priority date of 3 September 2009 and a filing date of 6 September 2010. As the time period between those dates was more than 12 months, prima facie the disclosure in the PCT publication was not entitled to 3 September 2009 as its priority date and, hence, was not able to be used as a whole of contents novelty citation.
My own investigations after the hearing showed that 3 September 2009 was a Thursday, 3 September 2010 was a Friday and 6 September 2010 was a Monday. The PCT application was filed at the Netherlands Patent Office. I could not find any evidence of a public holiday in the Netherlands, or other evidence of a closure of the Netherlands Patent Office, on 3 September 2010 that would have allowed for the filing of the PCT application the next Monday and the maintenance of entitlement to the earlier priority date (as per PCT Rule 80.5). I also could not see any evidence of any restoration of priority by any international authority. Hence, D2 did not appear to be prior art for the purposes of my decision.
I invited the parties to provide any further evidence that would show that D2 was entitled to the earlier priority date it claimed. The opponent responded indicating that it had found no reason why D2 was filed late.
It follows that, even if D2 disclosed all the features of the invention, the priority date of that information, if it were the subject of a claim, would be no earlier than 6 September 2010. As this date is later than the priority date of the claims, it follows that D2 is not part of the prior art base and cannot be used to assess the novelty of the claims.
As no other document was put forward for novelty, I conclude that the ground of lack of novelty is not made out.
Inventive step
It is a requirement of subsection 18(1) of the Act that the invention, so far as claimed in any claim, involves an inventive step. Subsection 7(2) states that an invention is taken to involve an inventive step unless it would have been obvious to a person skilled in the art in the light of the common general knowledge, considered alone or together with the prior art. “Obvious” means “very plain” (Lockwood Security Products Pty Ltd v Doric Products Pty Ltd (No 2) [2007] HCA 21).
A document is prior art for this purpose if it is “any single piece of prior art information”, or a combination of such prior art in prescribed circumstances (subsection 7(3)). The requirement that the information would have been ascertained, understood and regarded as relevant no longer applies (it was removed by Item 3 of Schedule 1 of the Raising the Bar Act). The Explanatory Memorandum states at page 43 that the consequence is that “the prior art base for inventive step will be information made publicly available before the relevant priority date.”
The test for whether an invention is obvious is to ask whether it would have been a matter of routine to proceed to the claimed invention. In Wellcome Foundation Ltd v V.R. Laboratories (Aust.) Pty Ltd [1981] HCA 12 at [45] Aickin J stated:
“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.”
The High Court in Aktiebolaget Hassle v Alphapharm Pty Ltd [2002] HCA 59 approved this approach, as well as the approach in Olin Mathieson Chemical Corporation v Biorex Laboratories Ltd [1970] RPC 157 at 187 in which Graham J had posed the reformulated Cripp's 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 of integers] in the expectation that it might well produce a [useful or desired result]?”
Where the invention lies in a combination of integers, the question is not whether each individual integer is obvious but rather whether the combination as a whole is obvious, when compared to the prior art base. In Alphapharm at [41] the Court said:
“The claim is for a combination, the interaction between the integers of which is the essential requirement for the presence of an inventive step. It is the selection of the integers out of ‘perhaps many possibilities’ which must be shown by Alphapharm to be obvious, bearing in mind that the selection of the integers in which the invention lies can be expected to be a process necessarily involving rejection of other possible integers.”
The opponent submitted that the invention lacks inventive step in the light of each of the following considered together with the common general knowledge:
(i)US 3824909 (referred to as “D1”)
(ii)GB 1242500 (referred to as “D3”)
The person skilled in the art
It is well established that many of the issues of lack of inventive step are answered by reference to the person skilled in the art (PSA):
“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.” (Root Quality Pty Ltd v Root Control Technologies Pty Ltd [2000] FCA 980 at [70])
However, they are an artificial construct that is used as a tool of analysis, and there is a danger in trying to identify them as an actual person or persons:
“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.”
(AstraZeneca AB v Apotex Pty Ltd [2015] HCA 30 at [23])
Our understanding of the PSA is based on evidence from persons with knowledge of the art as to the things that they know and do, and what they understand to be commonly known and done. The weighting and evaluating of this evidence to decide the characteristics of the PSA is part of the normal work of a delegate of the Commissioner.
In the present case the art is climate control of a space. The opponent maintained that the person skilled in the art would be a person with practical experience in the HVAC (i.e. heating, ventilation, and air conditioning) art, whether commercial or domestic, but, given the level of technical subject matter of the specification, could also be a person who had gained an understanding of the basic principles at work in other areas of technology. Particular specialisation on greenhouses was not necessary. The applicant submitted that while a person with more general skills in HVAC could construe the patent, for deciding a lack of inventive step the applicant stated that, in this case, the PSA must have knowledge of air distribution for greenhouse purposes. The applicant submitted that the context of the invention cannot be ignored and pointed to the statement in the present application (at [0001]) that indicated that the invention was directed to climate control for greenhouses. It was the climate of the greenhouse and the greenhouse considerations which dictated the solution
Ultimately, my decision on the PSA in this case is of no consequence, as the same result is reached whether I follow the opponent or the applicant. However, in my opinion, I am inclined to agree with the opponent. While the applicant made much of the fact that the claims are directed to a greenhouse or an air distribution system for a greenhouse, I believe that the applicant is too narrowly focussed. To my mind the statement at [0001] indicates that field of the invention is climate control with an application in greenhouses. To put it another way, the problem relates to the greenhouse climate and it follows that the PSA must have skills in climate control. While the climate in greenhouses may be more particular than climate in other enclosed spaces (such as office buildings), it would be the person skilled in climate control that would create that climate. A person skilled in the specific control of climate in greenhouses is not required.
In the present case, since the problem relates to climate control, both Dr Capra and Mr Hunter can be considered to be a person skilled in the art possessing some level of knowledge of climate control. In this case I will have regard to their evidence.
The common general knowledge
The common general knowledge was defined by Aickin J in Minnesota Mining and Manufacturing Co v Beiersdorf (Australia) Ltd (1980) 144 CLR 253 at 292 as:
“The notion of common general knowledge itself involves the use of that which is known or used by those in the relevant trade. It forms the background knowledge and experience which is available to all in the trade in considering the making of new products, or the making of improvements in old, and it must be treated as being used by an individual as a general body of knowledge.”
In the present opposition it is not necessary to consider the matter of common general knowledge in detail since even accepting statements at face value, the outcome remains the same.
The problem
In the present case no aim of the invention is stated. The specification starts with a statement that the field of the invention is climate control for greenhouses, discusses previous attempts at climate control in greenhouses and then moves straight into a discussion of the invention.
The opponent pointed to paragraph [0029] of the description which states:
“Conventional greenhouse air distribution systems can distribute unequal amounts of gas along the length of the greenhouse. In the case of tubes provided along the length of the greenhouse, equally spaced perforations are provided along the tube to allow air or gas to pass from within the tube to the interior of the greenhouse. The air or gas is typically supplied to the tube from one end, and as a result of pressure differences and turbulence along the length of the tube, an unequal distribution of air can exit from the tube at different points along its length.”
The description then states at paragraph [0030] that “another problem” is temperature differences along the length of the duct and, at paragraph [00031], further states that “these problems” are overcome by the air distribution system of the invention. The opponent submitted that these were the problems to be overcome by the invention.
The applicant submitted that there was no evidence to support that these problems were part of the common general knowledge. The applicant pointed to AstraZeneca AB v Apotex Pty Ltd [2014] FCAFC 99 where it was said at [202]–[203]:
“202Accordingly, whether a claim of a patent is invalid for lack of inventive step is to be determined by comparing the invention, so far as claimed, against the common general knowledge and any s 7(3) information. The question is then whether the invention would have been obvious to the hypothetical person skilled in the art in light of that knowledge considered separately from, or together with, the s 7(3) information. So understood, it is apparent that the relevant provisions of the Act do not expressly or impliedly contemplate that the body of knowledge and information against which the question whether or not an invention, so far as claimed, involves an inventive step is to be determined may be enlarged by reference to the inventor’s (or patent applicant’s) description in the complete specification of the invention including, in particular, any problem that the invention is explicitly or implicitly directed at solving.
203.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. There are a number of reasons why this should be so.”
The applicant submitted that the opponent had not addressed any potential problem in its evidence, let alone prove that any problem was common general knowledge.
The opponent noted that the applicant’s submissions on Astra (supra) overlook that fact that [203] states:
“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.” (emphasis added).
I note that, for applications subject to the requirements of the Raising the Bar Act, the s 7(3) information 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 opponent submitted that D1 and D3 spell out problems with ventilating spaces and ensuring that uniform distribution of air is achieved. The opponent also submitted that the problem of not achieving a uniform distribution of air was common general knowledge in the art. They stated that the PSA was aware that:
(i)there are greenhouses with ventilation systems; and
(ii)distribution of air through a single conduit was non-uniform, which was not ideal.
They further submitted that the present application proceeds on the assumption of these two points.

Ultimately, the outcome of the opposition is the same if I accept either submission. Both the specification and the disclosures of D1 and D3 refer to problems in providing uniform air flow into a space. In the circumstances I will to proceed on the basis that the problem to be solved by the invention is the provision of uniform flow into a space.
Obviousness in the light of the citations
D1
D1 discloses an air distribution system for a clean room. D1 describes the primary object of the system is to obtain uniform flow of air through the clean room by converting the dynamic pressure of the air flow into static pressure to ensure an even flow of air into the clean room. This is achieved by air being introduced into a plenum 24 via a perforated distribution duct 23. One wall 26 of the plenum is perforated and forms the ceiling of the clean room. Figure 1 shows this configuration:
The air that enters the plenum via the perforations in the distribution duct travels into the clean room via the perforated wall of the plenum. The time the air spends in the plenum allows any pressure differences to be reduced or eliminated to allow a uniform airflow into the clean room.

D1 discloses that the distribution duct can be formed from inner and outer perforated ducts. One embodiment of this type of duct is shown in Figure 4:
While this is superficially very similar to the type of duct claimed in the present application, there is a clear difference between the two systems which is fatal to the ground as far as D1 is concerned. Specifically, the duct of the claimed invention is composed of an inner conduit and an outer conduit and has the uniform air passing out of the openings in the outer conduit into the growing section. In other words, the uniform airflow is “made” in the distribution duct. In contrast, the uniform airflow into the clean room of D1 passes out of the plenum which receives air from the duct shown above. In other words, the uniform airflow is created by the action of the inner duct and the outer duct of the distribution duct and the plenum.
No evidence was adduced to be able to reasonably conclude that it would have been a matter of routine the step of removing the plenum and using only the distribution duct. As all claims include the features of creating a uniform air flow solely within a distribution duct, it follows that the claims of the present invention do not lack an inventive step in light of D1 combined with common general knowledge.
D3
D3 discloses an air distribution system which is said to achieve a uniform air distribution to all parts of an enclosed space. While the particular embodiment exemplified in D3 is for a broiler house, D3 clearly states:
“High requirements on draught-free injection and uniform temperature distribution have to be met, not only in [broiler houses], but also in other premises, for example in greenhouses.” (emphasis added)
D3 notes at page 1 lines 79–85 that there is problem with the prior art (a single air distribution hose) in that:
“The dynamic pressure within the hose is high near the inlet end of the plastics hose, but the static pressure is low. At the remote end of the hose the dynamic pressure has been converted to a static pressure. Consequently, there is a great difference in the pressure at the two ends of the hose. In addition to the oblique injection direction near the inlet end of the hose it is, therefore, difficult to effect a uniform distribution of the air injected into the room.”
The system of D3 that solves this problem is shown in figure 1:
The system of D3 is composed of air distribution device 5, which comprises two plastics hoses 14 and 15 mounted in the room 2. The hoses have different cross-sectional areas, with one mounted in the other, and are provided in their surfaces with outflow openings 14a and 15a, respectively.
D3 states at page 2 lines 53–58 that the arrangement allows:
“a balancing of the static pressure … in the space between the plastics hoses and a uniform distribution of the ventilation air to the outflow openings in the surface of the external plastics hose”
However, there is no explicit disclosure of each the openings in the inner house being offset from each of the openings in the outer hose, as required by the claim. The opponent simply stated in their written submissions that:
“the outflow openings of the inner and outer tubes are offset from each other”
While figure 1 might show some inner openings being offset from some outer openings, there is no disclosure that each opening is offset from each other opening. D3 states that the openings can be distributed uniformly and of equal size relatively to one another, but also that they may be distributed non-uniformly in the longitudinal direction of the hoses and could also be given different sizes in the different hoses for achieve the desired air distribution in the room.
The question then becomes would the person skilled in the art, as a matter of routine, arrange the holes of the respective ducts as shown in D3 such that each hole is offset from each other hole?
In her evidence, when asked, given a double conduit system, what design features would she implement to minimise, inter alia, pressure differential, Dr Capra stated that she:
“would immediately consider hole sizing in the inner and outer conduits … the relative spacing between these holes [and] … the spacing between the inner and outer conduits.”
When asked about hole design, Dr Capra said that:
“it would be advantageous to provide many small holes in the inner conduit … sized … in order to minimise turbulence … and reduce the velocity of the air exiting the inner conduit.”
Dr Capra also states that she would:
“locate the holes of the inner and outer conduits relative to each other to ensure the air takes a relatively long time to exit the outer conduit.”
Dr Capra also states later in her evidence that:
“the easiest way to maximise the travel time … would be to position these holes a distance from one another.”
However, as noted by Mr Hunter in his evidence, there is an inconsistency in Dr Capra’s evidence in that she has stated that she would provide “many small holes in the inner conduit” while positioning these many small holes at a distance from the holes in the outer conduit. Having “many” small holes would tend to reduce the travel time since the air would exit the inner conduit fairly quickly.

In essence, what Dr Capra proposes is the system that is shown in D3. Dr Capra does say in her evidence in reply to Mr Hunter’s statement that having many small holes is not at odds with maximising the distance between the holes, as one could have sections of small holes radially offset from holes in the outer conduit. However, there is no evidence to establish that such an arrangement is common general knowledge in the art, let alone that the PSA would, as a matter of routine, make such a change to the disclosure of D3.

I am not satisfied that the evidence establishes that the claimed invention lacks an inventive step in light of D3 combined with common general knowledge.
Conclusion
The opposition does not succeed.
The Commissioner will now begin examination of the amendments filed on 22 October 2015.
Costs
The opponent stated that costs should follow the event. The applicant stated that, given the contraction of the opponent’s case after the filing of their written submissions, the applicant should be entitled to costs as they had been put to some effort to address grounds put forward in the opponent’s written submissions that were abandoned at the hearing. Given the applicant’s success, their submission is moot. I award costs against the opponent, J.M. van der Hoeven BV.
Greg Powell
Delegate of the Commissioner of Patents