Pesense Pty Ltd v Dow AgroSciences LLC
[2019] APO 39
•13 August 2019
IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Pesense Pty Ltd v Dow AgroSciences LLC [2019] APO 39
Patent Application: 2014203633
Title:NETWORKED PEST CONTROL SYSTEM
Patent Applicant: Dow AgroSciences LLC
Opponent: Pesense Pty Ltd
Delegate: R Subbarayan
Decision Date: 13 August 2019
Hearing Date: 21 March 2019, in Melbourne
Catchwords: PATENTS – opposition to grant of patent – wireless networked pest control system – whether claims are novel – whether claims are inventive – whether claims are for a manner of manufacture – whether claims are supported – claims lack an inventive step – none of the other grounds made out – costs awarded
Representation: Counsel for the applicant: Craig Smith
Patent attorney for the applicant: Tom Gumley of FPA Patent Attorneys
Patent attorney for the opponent: Trevor Dredge of Intellepro
IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Patent Application: 2014203633
Title:NETWORKED PEST CONTROL SYSTEM
Patent Applicant: Dow AgroSciences LLC
Date of Decision: 13 August 2019
DECISION
The opposition is successful. All of the claims lack an inventive step. None of the other grounds have been made out.
I allow the applicant a period of 2 months from the date of this decision to propose amendments that would overcome the adverse findings.
I award costs according to schedule 8 against the applicant.
REASONS FOR DECISION
BACKGROUND
Patent application 2014203633 in the name of Dow AgroSciences LLC (the Applicant) was filed on 2 July 2014 as a divisional application of AU2009292169 and claims an earlier priority date of 9 September 2008 through this parent application. Following examination, it was advertised as having been accepted on 28 July 2016. Pesense Pty Ltd (the Opponent) has opposed the grant of a patent under the provisions of s59 of the Patents Act. The opponent filed the Statement of Grounds and Particulars (SGP) on 27 January 2017. An amended SGP was filed on 11 April 2017 following a request to file further and better particulars. After all of the evidence had been filed, the applicant filed on 12 October 2017, amendments to the accepted specification that included an amendment to one of the dependent claims. These amendments were not opposed and were allowed by the Commissioner. The opposition was heard on 21 March 2019 in Melbourne where the applicant appeared in person and the opponent appeared over the telephone.
GROUNDS OF OPPOSITION
The SGP lists the grounds of opposition as lack of manner of manufacture, lack of novelty, lack of inventive step, and lack of support. Each of these grounds were also pressed at the hearing.
EVIDENCE
Evidence filed by the parties comprises the following:
Evidence in Support
·Declaration of Russell Gurrin dated 25 April 2017 including exhibits RG1to RG8 (Gurrin1).
·Declaration of Ion Leslie Staunton dated 25 April 2017 (Staunton).
Evidence in Answer
·Declaration of Dr Donald McGregor Ewart dated 20 June 2017 including exhibits DE-1 to DE-4 (Ewart1).
·Declaration of Dr Donald McGregor Ewart dated 30 June 2017 including exhibits DE2-1-DE2-2 (Ewart2).
·Declaration of Dr Donald McGregor Ewart dated 27 July 2017 (Ewart3).
Evidence in Reply
·Declaration of Russell Gurrin dated 29 September 2017 (Gurrin2).
Mr Gurrin attained a bachelor’s degree in electronic systems engineering in 1991 and has wide experience in the field of wireless networking and microcontrollers. He has provided his opinion on the common general knowledge in the art at the priority date, the opposed application and the disclosure of prior art document D1 relied on by the opponent.
Mr Staunton is a director of Pesense Pty Ltd and is an entomologist with over 5 decades experience in the field of termites including their behaviour and measures for their control and treatment. He has provided his opinion on the common general knowledge in the art at the priority date.
Dr Ewart is an ecologist and entomologist with formal qualifications in science (1979) and ecology (1989). He has worked extensively in the field of termites and measures for their control and treatment and this includes work as a research assistant in CSIRO and as R&D Manager at Granitgard Pty Ltd. He has provided his opinion on the common general knowledge in the art at the priority date, the opposed application and the disclosure of prior art documents D1 and D8 relied on by the opponent.
SPECIFICATION
The specification states that the “present invention relates to pest control, and more particularly, but not exclusively, relates to techniques for sensing, communicating, storing, and evaluating data from networked pest control devices”.[1]
[1] Specification at page 1, lines 8-10
It then notes that the pests such as rodents and termites can cause damage to structures and that the detection and control of such pests has long been a challenge. One of the recent approaches to this problem has been to provide for the targeted delivery of pesticide chemicals only after the pests have been detected. It states that an example of this approach is the SENTRICON TERMITE
COLONY ELIMINATION SYSTEM™ of Dow AgroSciences in which a number of pest control stations are installed in the ground around a building to be protected but then notes that a problem of this system is that the stations have to be periodically checked manually for termite activity and that this can be labour intensive. Similarly, the periodic checking of rodent traps in food storage facilities is also stated to be laborious and expensive.
The present invention
The present invention provides a networked pest control system having a plurality of pest control devices in which each of the pest control devices has a sensor for detecting the presence of pests and which on sensing the presence of pests wirelessly transmit an electronic signal to a central controller of a wireless communication network. Each pest control device also has a human detectable indicator to indicate whether the pest control device is linked to the wireless communication network.
The preferred embodiment
The specification then describes a preferred embodiment of the networked pest control system with respect to a number of figures. Figure 1 is reproduced below:
Pest control system 20 includes a pest control monitoring arrangement 22 that can communicate over a wireless network 24 with a central pest data management server 120. Pest control monitoring arrangement 22 includes a number of pest control device groups 30. Each pest control group includes a number of pest control devices 40 and a pest control data collector within a communication gateway 33. Gateway 33 which includes a controller 70 and memory 72 interfaces with server 120 via the wireless computer network 24 and interfaces with pest control devices 40 via wireless Local Area Network (LAN) 36. Pest control devices 40 each include a communication node 42 that further includes a controller 70 and an electrical power source 62.
Each pest control device is an in-ground station that includes a pest sensor 46 and a bait 44 in the form of a pest attractant or a pest consumable material. The pest sensor 46 is capable of generating an electrical signal in response to detecting pest interaction with the bait 44 and transmitting this electrical signal to server 120 through an associated gateway 33.
The procedure for setting up the wireless network requires associating each node 42 with a corresponding gateway 33. This is done by activating a selected node 42 using a switch 76 on the pest control device. The node 42 then executes a search routine to identify a reliable communication path to its gateway and once this communication has been established this is conveyed to a user by a green LED indicator light 82. If on the other hand, communication is not able to be established this is conveyed to the user by a red LED indicator light 84.
Once the wireless networking has been set up, the server 120 can communicate wirelessly with all of the pest control groups, evaluate data received from the groups and take relevant actions such as sending information to a customer.
The Claims
The specification ends with 20 claims and the 3 independent claims are as set out below. The full claim set is annexed to this decision.
1. A system comprising:
a plurality of pest control devices, each pest control device comprising (i) a bait comprising a pest-consumable material, (ii) a sensor operable to generate a detection signal indicative of a pest presence, (iii) a controller configured to receive the detection signal and generate an electronic signal based on the detection signal, and (iv) a wireless communication circuit operable to transmit the electronic signal,
a gateway to receive electronic signals from the plurality of pest control devices, and
a wireless communication node operable to relay electronic signals to the gateway from the plurality of pest control devices,
wherein (i) the wireless communication node, the plurality of pest control devices, and the gateway are configured to establish a wireless communication network, and (ii) each pest control device comprises a human-detectable indicator to indicate establishment of the wireless communication network.8. A method comprising:
positioning a wireless communication node at a first position,
generating a first output at the wireless communication node to indicate direct or indirect communication between the wireless communication node and a data collector,
positioning a pest control device at a second position, the pest control device comprising a pest sensor, a bait comprising a pest-consumable material, and a wireless communication circuit, and
generating a second output at the pest control device to indicate direct or indirect communication between the pest control device and the data collector.14. A system, comprising:
a pest control device, comprising:
a pest sensor operable to generate one or more signals representative of pest detection;
a bait comprising a pest-consumable material,
circuitry comprising (i) a wireless communication transceiver coupled to the pest sensor to transmit information corresponding to the pest detection, and (ii) a controller to execute operating logic to establish a wireless communication link with one or more other devices, and
an indicator coupled to the circuitry to provide a first operator output indicative of establishment of the wireless communication link, and a second operator output indicative of failure to establish the wireless communication link.The Relevant Law and Onus
16. On 15 April 2013, the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 commenced which resulted in significant amendments to the Act and Regulations affecting, inter alia, the standard of proof required for an opposition to succeed. For patent applications filed on or after the above commencement date, subsection 60(3A) applies:
“If the Commissioner is satisfied, on the balance of probabilities, that a ground of opposition to the grant of the standard patent exists, the Commissioner may refuse the application.” (emphasis added)
17. The request for examination with respect to the Application was filed on 13 July 2015, hence subsection 60(3A) applies to the instant opposition. In addition, the filing date of the request for examination with respect to the Application being after 15 April 2013 also means that the Application was examined under the amended provisions of the Act and Regulations following the Raising the Bar Act and the same are also applicable to the present opposition proceedings.
18. It is well settled that the Opponent has the onus of establishing the facts supporting the grounds of opposition, and this applies even though the standard of proof is “the balance of probabilities”.
Novelty
19. In AstraZeneca AB v Apotex Pty Ltd [2014] FCAFC 99, the full Federal Court noted (at [293]–[294]):
“The touchstone for determining whether a prior publication ... anticipates a claimed invention, is stated in General Tire at 485 to 486:
When the prior inventor’s publication and the patentee’s claim have respectively been construed by the Court in the light of all properly admissible evidence ... the question whether the patentee’s claim is new ... falls to be decided as a question of fact. If the prior inventor’s publication contains a clear description of, or clear instructions to do or make, something that would infringe the patentee’s claim if carried out after the grant of the patentee’s patent, the patentee’s claim will have been shown to lack the necessary novelty, that is to say, it will have been anticipated. The prior inventor, however, and the patentee may have approached the same device from different starting points and may for this reason, or it may be for other reasons, have so described their devices that it cannot be immediately discerned from a reading of the language which they have respectively used that they have discovered in truth the same device; but if carrying out the directions contained in the prior inventor’s publications will inevitably result in something being made or done which, if the patentee’s patent were valid, would constitute an infringement of the patentee’s claim, this circumstance demonstrates that the patentee’s claim has in fact been anticipated.
If, on the other hand, 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. To anticipate the patentee’s claim the prior publication must contain clear and unmistakable 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.
The metaphor of planting the flag has been taken up in this Court. For example, in ICI Chemicals, the Full Court at [51], after noting the metaphor, remarked that, in that case, the appellant’s argument involved the skilled addressee rummaging through a “flag locker” to find a flag which the prior art document possessed and could have planted. In Apotex Pty Ltd and Another v Sanofi-Aventis and Another [2008] FCA 1194;(2008) 78 IPR 485 (“Sanofi-Aventis (2008)”), Gyles J at [91] adopted a different metaphor, remarking that “anticipation is deadly but requires the accuracy of a sniper, not the firing of a 12 gauge shotgun”. Each metaphor underlines the importance of the specificity required in order for a prior art document to anticipate an invention as claimed.”
20. The opponent has relied on a single document to support its ground of lack of novelty.
D1: CN101127147
21. The opponent has provided a verified English translation of this Chinese patent document and as the applicant has not disputed the accuracy of this translation, I will rely on this translation for the disclosure of this document.
22. Under the heading “Background Art”, D1 states:
“Today, thinking on the control of termite damage has gradually evolved from chemical control to environmentally-friendly control, with every nation researching and exploring technologies and equipment for termite prevention and monitoring. Eco-friendly and efficient, physical prevention and surveillance technology allows sustainable observation of termite activity across a variety of environments, and has become the principal direction of growth in termite damage control. Research into applied technologies utilizing electronic monitoring systems fits this trend, and is currently attracting growing attention. However, traditional termite damage electronic devices harbor the following problems: (1) Termite damage electronic monitoring devices are typically buried under the ground surface, and must be retrieved from the ground when carrying out monitoring to be read with specialized equipment before being reburied. The major downside of this approach is the massive amount of labor required that necessitates a huge investment on human resources, while secondly the electronic monitoring equipment must have an accessible dedicated data interface for the reading device, meaning the equipment cannot easily be sealed, which makes it unsuited for use in adverse environments; (2) Traditional network-based termite monitoring equipment employs parallel wiring or bus control network infrastructure, and dedicated cabling is required for both the equipment power supply and signal transmission. The disadvantage of this approach is the complexity of the installation, involving the on-site laying of dedicated cables that also require regular servicing and maintenance; (3) Current termite damage electronic monitors are laid out over a wide area, which is not conducive to large-scale wired networking followed by transmission to a microprocessor unit for centralized data processing”.[2] (my underlining)
[2] D1 translation, page 2
23. It is therefore clear that D1 seeks to address similar drawbacks as noted in the opposed application.
24. D1 then provides a summary of the invention in the following terms:
“An electronic monitoring system for termite damage based on wireless radio frequency, comprising a microprocessor unit serving as a centralized data collector, wherein a data interface of the microprocessor unit communicates over a wired communication channel with at least one data terminal receiving unit, each data terminal receiving unit communicates over at least one wireless communication channel with a corresponding module adapted for information processing and Zigbee mode wireless communication, and the modules adapted for information processing and Zigbee mode wireless communication are further connected via respective data lines to termite damage monitoring probes in respective termite damage detectors, and receive termite damage information detected by the termite damage monitoring probes; the termite damage detectors are provided with ZigBee communication and adaptive networking functionality.
The optimized technical measures further comprise:
The aforementioned data terminal receiving units are ZigBee data terminal receivers which communicate over a wireless communication channel with the data interface of the microprocessor unit, and communicate over a wireless communication channel with the modules adapted for information processing and ZigBee wireless communication; said modules adapted for information processing and ZigBee wireless communication are connected via data lines to termite damage monitoring probes, and receive termite damage information detected by the termite damage monitoring probes”.[3]
[3] D1 translation, pages 3-4
25. D1 then provides a detailed description of certain preferred embodiments with reference to Figure 1 and 2 that are reproduced below:
26. The embodiment of figure 1 is described as follows:
“Figure 1 is a block diagram showing the single-node data acquisition structure of the invention, in which the data terminal receiving unit is a Zigbee data terminal receiver. The Zigbee data terminal receiver communicates over a wired communication channel with a data interface of the microprocessor unit, and communicates over a wireless communication channel with a module adapted for information processing and ZigBee wireless communication. The module adapted for information processing and ZigBee wireless communication is connected via a data line to a termite damage monitoring probe, and receives termite damage information detected by the termite damage monitoring probe. The termite damage monitoring probe is typically positioned at the ground surface of designated sites in the monitored area. In this way, data information of the buried termite damage monitoring probe is transmitted out in the form of wireless data exchange, and there is no need to dig up the monitor in order to acquire the data and then rebury it, which greatly enhances the efficiency of data acquisition and reduces labor cost and work intensity. Further, the data terminal receiving unit is equipped with a data LCD display screen, data memory and RS232 communication interface connected to the microprocessor unit for data transmission. When applied in small local area networks, the data terminal receiving unit can directly ascertain information monitored by all modules adapted for information processing and ZigBee wireless communication within communication range, acquire and store the information, and conduct data exchange with the microprocessor unit, transferring the collected information to the microprocessor unit for further processing. Such a single-node mode of data acquisition is suited for surveillance in small independent regions”.[4] (my underlining)
[4] D1 translation, page 5
27. While D1 does not use the same terminology as claim 1 of the opposed application for some of the integers, it appears to be common ground between the experts that D1 does disclose a plurality of pest control devices each having a sensor (probe) to generate a detection signal indicative of a pest presence, a controller configured to receive the detection signal and generate an electronic signal based on the detection signal, a wireless communication circuit operable to transmit the electronic signal, a gateway to receive electronic signals from the plurality of pest control devices, a wireless communication node operable to relay electronic signals to the gateway from the plurality of pest control devices and wherein the wireless communication node and the gateway are configured to establish a wireless communication network.
28. The integers of claim 1 that are contentious are (a) the presence of a bait comprising a pest consumable material, (b) whether the probe is a component of the module adapted for information processing and ZigBee wireless communication and (c) the provision of a human detectable indicator to indicate establishment of the wireless communication network.
29. The opponent accepted that there is no explicit disclosure of the pest control device of D1 including a bait, but argued that it was common general knowledge that pest detectors include some kind of bait or attractant, and that when read in the light of this CGK it is inherent that the pest control device of D1 would include a bait or attractant.
30. Mr Staunton has stated that termite monitors or detectors typically have bait.
“Termite monitors or detectors of many and varied designs were common general knowledge before the priority date and are in essence devices to hold timber or other material attractive to termites so that large numbers of them will be aggregated inside in a microclimate they can manage”.[5]
[5] Staunton at [12]
31. Dr Ewart while noting that “The pest control devices often included a bait box with bait”[6] has stated that probe of D1 does not need to include bait and that it could also detect the tunnelling of the termites using a sacrificial dielectric film that undergoes a change when termites bore through it and that such a film would not constitute bait as it does not lure termites.[7] This has not been disputed by Mr Staunton.
[6] Ewart 1 at [3.2.3]
[7] Ewart 2 at [2.10] to [2.14]
32. While it may be CGK to use a bait in the termite monitor, I cannot be satisfied that bait is necessarily present in the probe of D1. This feature is not disclosed in D1.
33. The applicant submitted that the probe of D1 is a buried unit that is separate from the module adapted for information processing and ZigBee wireless communication and is connected to the module by a data link which they construe as being a wired link. It was their view that the probe does not form part of the wireless communication network as required by claim 1.
34. I do not interpret the disclosure of D1 in the same way. In my view the following references in D1 support the opponent’s submission that the probe is a component of the termite damage detector which is in turn part of the module.
“….the modules adapted for information processing and Zigbee mode wireless communication are further connected via respective data lines to termite damage monitoring probes in respective termite damage detectors, and receive termite damage information detected by the termite damage monitoring probes; the termite damage detectors are provided with ZigBee communication and adaptive networking functionality”.[8]
“In this way, data information of the buried termite damage monitoring probe is transmitted out in the form of wireless data exchange, and there is no need to dig up the monitor in order to acquire the data and then rebury it, which greatly enhances the efficiency of data acquisition and reduces labor cost and work intensity”.[9]
“The entire data acquisition process of the present invention employs wireless communication based on the ZigBee protocol”.[10]
[8] D1 paragraph bridging pages 3 and 4
[9] D1 page 5, 3rd full paragraph
[10] D1 page 6, 3rd full paragraph
35. It is clear from these passages that the probe is located within the termite damage detectors and the reference to the termite damage detectors being provided with ZigBee communication and adaptive networking functionality clearly indicates that it is part of the module adapted for information processing and ZigBee wireless communication. The probe is very much part of the wireless communication network. This integer is therefore disclosed in D1.
36. In relation to the human detectable indicator, the opponent accepted that there is no explicit disclosure of this integer but argued that according to the evidence of Mr Gurrin, this integer would have to be necessarily present as the operator would otherwise not know if each pest damage detector has been linked to the wireless communication network.
37. Mr Gurrin was asked if in his opinion it would be implicit in the disclosure of D1 that a human-detectable network indicator would be employed in each of the termite damage detectors. His response is as follows:
“15. Having an indication that your device can "see" the network adequately is very useful at installation time, so that the device or its antenna can be placed in the best possible location. However there are many ways of supplying that indication - for example by sound or vibration (perhaps beeping or vibrating in a particular pattern), by indicator lamps, by a small character-based or symbolic display, or by RF communications to a hand-held terminal. The choice of which method is used is usually economic, although there may be other factors (e.g. it may be difficult to hear a beep code in a noisy factory). Whether the sensors are installed by a specialist installer also plays a part.
16. If a specialist installer was to be used on all occasions, then I would have recommended a hand-held terminal communicating through the device's own RF communication link. This is the most versatile communications option, many things can be communicated such as network status and battery voltage. It also adds nothing to the hardware cost of the unit, as all required parts are already present in the unit.
17. However if installation was to be performed by unskilled workers, then sound, vibration and visual indicators all have similar costs. Although LEDs are cheap on a per-unit cost, the enclosure of the device has to be designed with holes or a clear window, so that the LEDs can be seen, adding to the cost. I probably would have recommended vibration, as it does not normally require make any demands on case design. It is also easy to describe, like "Two buzzes, repeated every five seconds, means good signal. One buzz means bad signal."”[11]
[11] Gurrin at [15]-[17]
38. While Mr Gurrin has stated that having some kind of indicator would be helpful, he does not categorically state that the termite damage detectors of D1 would necessarily have such an indicator. I also note that in the case of a specialist installer Mr Gurrin’s preferred use of a hand-held terminal would not require a human detectable indicator on the termite control detector. I also cannot find any suggestion in D1 that a human detectable indicator would be useful. There is no clear and unmistakeable teaching in D1 to provide this claimed integer.
39. Claim 1 is novel over D1 as two of the claimed integers are not disclosed.
40. Independent claims 8 and 14 also include the integers of the pest control device comprising a bait and an indicator to indicate establishment of the wireless communication of the pest control device. It follows that these claims and all of the dependent claims are also novel.
Inventive Step
41. The test for whether an invention is obvious (non-inventive) is to ask if it would have been a matter of routine to proceed to the claimed invention. In Wellcome Foundation Ltd v V.R. Laboratories (Aust) PtyLtd [1981] HCA 12 at [45]; 148 CLR 262 at 286, it was stated:
“The test is whether the hypothetical addressee faced with the same problem would have taken as 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.”
42. The High Court in Aktiebolaget Hassle v Alphapharm Pty Ltd [2002] HCA 59; 212 CLR 411 at 433 stated that it is also permissible to use the reformulated “Cripps question”:
“Would the notional research group at the relevant date, in all the circumstances, which include a knowledge of all the relevant prior art and the facts, directly be led as a matter of course to try the invention as claimed in the expectation that it might well produce a solution to the problem.”
Problem to be solved
43. As noted earlier, the specification states that the problem with known prior art systems in which a number of pest control stations are installed in the ground around a building to be protected is that the stations have to be periodically checked manually for termite activity and that this can be labour intensive and expensive.
44. Both Mr Staunton and Dr Ewart also state that this was a problem with systems which involved installing pest control stations in the ground. As noted earlier, prior art D1 also identifies this as a problem.
45. I am therefore satisfied that this is the problem that the claimed invention seeks to address.
Common General Knowledge (CGK)
46. Mr Staunton and Dr Ewart are both entomologists with extensive experience in the field of termite monitoring and have provided their opinion on the CGK in the art at the priority date.
It is clear from their evidence that the following knowledge in relation to termite monitoring/detection was part of the CGK in the art.
·The use of termite monitors to detect the presence of termites in an area.
·A plurality of these monitors is strategically placed in the ground around a property to be protected. The monitors are partly buried in the ground.
·The monitors include a box or housing with timber or other material attractive to termites so that termites will aggregate within the housing.
·The monitors are periodically manually inspected for the presence of termites.
·If termites are detected, then a bait comprising a toxin or chemical that can kill or modify the behaviour of the termites is placed within the monitor.
·The termites carry this toxin back to their nests.
·The manual inspection of these monitors is labour intensive and expensive.
47. Mr Gurrin’s expertise is in wireless communication networks and he has therefore provided evidence on what he considers were part of the CGK in relation to such networks in general. According to him the following was CGK at the priority date.
·Wireless communication networks in general.
·Visual network indicators to indicate establishment of communication with the network. He provides the ethernet ports of personal computers and the signal strength indicators on mobile phones as examples of human detectable network indicators.
·Use of LEDs of two different colours to indicate status of network communication, one colour to indicate establishment of communication and the other to indicate non-establishment of communication with the network.
48. As Dr Ewart does not dispute this evidence of Mr Gurrin, I am satisfied that these were indeed CGK at the priority date, noting that these are in relation to networks in general and not specifically to termite monitoring.
D1: CN101127147
49. This document was published before the priority date and is therefore part of the prior art base for assessing inventive step. It is also directed to solving a similar problem as the claimed invention.
50. As discussed earlier under Novelty, the only integers of claim 1 not disclosed in D1 are the provision of bait in the termite damage detectors and the inclusion of a human detectable indicator in the termite damage detector to indicate successful communication link with the wireless network.
51. D1 is silent about whether the termite damage detectors include bait. Based on the evidence, I am satisfied that the use of bait or an attractant in the termite monitor housing was CGK at the priority date. While I accept that as suggested by Dr Gurrin, it may be possible to provide in the termite damage detector of D1, a dielectric film rather than bait, in my view it is more likely that the skilled addressee would have as a matter of routine opted to include the more commonplace bait over a dielectric film. The inclusion of this integer in claim 1 cannot make the claim inventive.
52. As earlier discussed under “Specification”, the present application talks about the problem of visually inspecting a plurality of buried termite stations as the main problem that it seeks to address. It then provides the solution of providing the stations with some form of a sensor that can send electronic signals wirelessly to a central controller on detecting the presence of termites. As part of this solution, the specification then also provides indicator lights in the form of LEDs 82, 84 to indicate whether each bait station has been wirelessly linked to the wireless network or not.
53. There is clearly no teaching in D1 that the termite damage detector can be provided with a human detectable indicator although it clearly has the capability to wirelessly communicate with the data terminal receiving unit. The question is whether the skilled addressee would have been led, as a matter of routine, to provide such a human detectable indicator in the system of D1.
54. Clearly this feature relates to the setting up the wireless network and not to the construction of the termite station or the method employed to detect and/or destroy the termites. Therefore the skilled addressee in relation to this aspect of the claimed invention would be a person who is skilled in the field of wireless networks and wireless communications, such as Mr Gurrin.
55. Mr Gurrin as I noted earlier is a qualified engineer in electronic systems engineering and has around 20 years of work experience in this field. In this time, he has designed electronics for monitoring sensors of various kinds including wireless monitoring using the mobile phone network. Prior to being given the specification of the opposed application, he was asked to provide his opinion on what was the CGK before the priority date in relation to visual network indicators and also the use of red and green LED network indicators. He has commented as follows:
“Visual network indicators have existed for many years, integrated into the Ethernet ports of personal computers. One such example still in my possession is an Asus A7N266-VM computer motherboard. With some effort I could probably dig out the purchase paperwork (it was a business purchase). From the support page on the Asus website, the manual was last updated on 2002/06/04, so the design of the motherboard was earlier than that, which certainly predates 2008. I have seen visual network indicators in other places, but this particular one is easy to date”.[12]
“The network indicators on my motherboard are not of this type, they are green and yellow individual LEDs. However, using red and green LEDs to indicate the status of a signal is very old indeed. The oldest physical device I can lay my hands on is an RS232 signal tester. I have a 2006 catalog from RS Components showing such a device (page 1778), it has (quote)'9 red and 9 green LED's to indicate the status of transmission on the most significant RS232 lines', and then lists the nine lines that are monitored”.[13]
“All mobile phones include a 'human-detectable indicator to indicate establishment of the wireless communication network', it's the signal-strength indicator, or alternatively the 'no coverage' or 'YES OPTUS' (or similar) signals shown on the display”.[14]
[12] Gurrin at [8.i]
[13] Gurrin at [8.ii]
[14] Gurrin at [8.iv]
56. It would appear from these statements that visual network indicators were well known and had become CGK at the priority date. Dr Ewart does not dispute this in his evidence. I am therefore satisfied that visual indicators to indicate whether a device is linked to a wireless network were CGK at the priority date.
57. However just because visual network indicators are CGK does not lead to the conclusion that the claimed invention is obvious. The question is whether the skilled addressee would have been led as a matter of course to include this CGK visual indicator in the teachings of D1 in the expectation that it would be a better system.
58. As noted earlier, when asked whether the system of D1 would include a network indicator, Mr Gurrin has stated that “Having an indication that your device can "see" the network adequately is very useful at installation time, so that the device or its antenna can be placed in the best possible location” and that “there are many ways of supplying that indication - for example by sound or vibration (perhaps beeping or vibrating in a particular pattern), by indicator lamps, by a small character-based or symbolic display, or by RF communications to a hand-held terminal” with the choice being influenced by factors such as cost, environmental conditions and the skill of the installer[15].
[15] Gurrin at [15]
59. I agree that such an indicator would be a useful thing to have when installing the system of D1. The problem of determining whether each of the termite detectors is linked to the wireless network is bound to arise when the system of D1 is being installed, and this would be more so when the detectors are being buried in the ground as in D1. The skilled addressee would therefore be directly led to include some kind of indicator to indicate establishment of the wireless communication.
60. In relation to what type of indicator that he would have recommend for the system of D1, Mr Gurrin has stated that he would have recommended a hand-held terminal (in the case of a specialist installer) as it can communicate many parameters with very little additional hardware costs, or a vibration indicator (in the case of an unskilled installer) as there is no additional considerations such as holes or windows for the housing case.[16]
[16] Gurrin at [15]-[17]
61. While Mr Gurrin provides different options depending on whether the installer is skilled or unskilled, it is the view of Dr Ewart that generally the technician involved in setting up the detectors “is not likely to have technical skills relating to networking”[17]. For an unskilled worker, the options provided by Mr Gurrin all involve a human detectable indicator on the unit in the form of a sound, vibration or visual indicator.
[17] Ewart 3 at [2.10]
62. In my view, the inclusion of a human-detectable indicator in the termite detector that is able to indicate whether the detector is linked to the wireless network is nothing more than a matter of routine.
63. The applicant submitted that “Mr Gurrin was provided, in a leading manner, with a series of integers, and asked to consider whether each was known” and that “Mr Gurrin does not assert in his declaration that some solution falling within the scope of any of the claims was one that he would have advanced had he been provided with a relevant problem as at the priority date”.[18]
[18] Applicant’s written submissions at [53]-[54]
64. While that may be true, the fact is Mr Ewart does not refute the evidence of Mr Gurrin in relation to wireless networking and the use of indicators to indicate establishment of wireless communication. As I noted earlier, the issue of not being able to readily and quickly determine whether the termite monitors have established the communication link with the controller would inevitably arise and the skilled addressee would therefore want to do something about it, with the solution lying within the CGK in the art.
65. In my view, the differences between the invention of claim 1 and the disclosure of D1 are nothing more than routine improvements that would be readily attempted by the skilled addressee as a matter of course using the CGK in the corresponding art. Claim 1 therefore lacks an inventive step over D1 and the CGK in the art.
66. In relation of independent claim 8, I can again see nothing in there that would not be obvious to the skilled person. It additionally defines generating an output at the wireless communication node to indicate direct or indirect communication between the wireless communication node and a data collector. I have been presented with no submissions from the applicant to suggest that this integer is in any way different or non-routine to providing an indicator at the pest control device. Mr Gurrin has stated that such a feature is a characteristic of the Zigbee network. Claim 8 is also therefore lacking in inventive step.
67. In relation to independent claim 14, this claim differs from claim 1 in that the indicator provides two outputs, a first output to indicate establishment of the wireless communication link and a second output indicative of failure to establish the wireless communication link. I have found that such a feature is CGK in the art of wireless networking. Claim 14 is also therefore lacking in inventive step.
68. In relation to the dependent claims, the opponent submitted a table setting out why in their opinion, each of the dependent claims is also lacking in novelty/inventive step, either based on the disclosure of D1 or being matters of CGK in the art. The applicant did not provide any submissions in response to this. I have looked at the table and find the opponent’s submissions persuasive.
69. Dependent claim 2 defines the bait as comprising an attractant for at least one of termites and bedbugs. D1 clearly relates to termites and this claim is therefore lacking in inventive step.
70. Dependent claim 3 defines the bait as comprising an attractant for rodents. While D1 is directed to termite detection, I can see nothing inventive in utilising the teachings of D1 in relation to the detection of rodents. The use of a bait for attracting rodents is extremely commonplace and the wireless networking arrangement is unchanged. This claim lacks an inventive step.
71. Claim 4 defines the system as further comprising a computer network in connection with the gateway, a data management server in communication with the computer network to receive and store data and a user access client connected to the comuter network to access data in the data management server. The opponent submitted that while D1 discloses a wired local processor for further processing, the GPRS/CDA disclosed therein has most of these features and any differences between the claim and D1 relate to information processing on a general computer system. I agree. The claim relates to how the information from the detectors can be processed by a generic computer and accessed by the user and would be very much part of the CGK. This claim lacks an inventive step.
72. Claim 5 provides for a second plurality of pest control devices and a wireless communication network similar to that of claim 1. Duplicating the system of claim 1 cannot make the invention inventive. This claim lacks an inventive step.
73. Claim 6 defines the human-detectable indicator as a visual indicator. This is part of the CGK. This claim therefore lacks an inventive step.
74. Claim 7 defines that the sensor generates the signal based on electrical capacitance. Dr Ewart has referred to the use of a sacrificial dielectric film that can provide a signal based on charge variation.[19] While D1 does not explicitly specify the signal being based on electrical capacitance, the evidence of Dr Ewart suggests that this is well known. The claim therefore lacks an inventive step.
[19] Ewart 2 at [2.10]
75. Claims 9 further defines separate first and second visual outputs to indicate establishment of and failure to establish wireless communication and claim 10 further defines a third visual output that provides an indication of a failure to establish wireless communication link after a predetermined period of time and claim 11 provides for installing a different pest control device in response to the third visual output. I have found that the use of different LEDs for this purpose is CGK. The feature of the third light coming on after a predetermined period of time of failing to establish a link and then using this to decide to install another device would appear to be no more than a routine variation to the visual feature. These claims therefore lack an inventive step.
76. Claim 12 relates to providing more than one group of pest control devices. Again, duplicating the system of claim 1 would be an obvious variation. This claim therefore lacks an inventive step.
77. Claim 13 relates to transmitting sensor information from the pest sensor to the data collector. This is disclosed in D1. This claim lacks an inventive step.
78. Claims 15-17 define the features of a gateway, a wireless communication node and the node being in another pest control device. These features are disclosed in D1 as being typical of a Zigbee network. These claims lack an inventive step.
79. Claim 18 defines a data management server that can store information which can then be accessed by the user. This is disclosed in D1. This claim lacks an inventive step.
80. Claim 19 defines the sensor as having either a hall effect device or a magnetoresistor. The specification refers to these types of devices in the context of an operator activated switch provided in the pest control device. While D1 does not disclose such a device, such devices are well known and there is nothing to suggest that incorporating such well-known devices would be anything more than routine. This claim lacks an inventive step.
81. Claim 20 defines the steps involved in initiating and establishing the wireless communication link. According to the opponent, these steps are characteristic of the Zigbee network. This claim lacks an inventive step.
82. In summary, all of the claims lack an inventive step.
MANNER OF MANUFACTURE
83. The opponent submitted that the claimed invention is not a manner of manufacture on the basis that it is a mere collocation of a known integers.
“In our submission the combination comprising the network is known and operates independently of the combination comprising the plural pest control devices which are also known. The network is not new according to patent specification any network can be employed and the pest control devices are not new as these are cross referenced from the prior art. All the claims rely on this same collocation since they only add known elements to the independent parts. They do not create any new synergism”.[20]
[20] Opponent’s written submissions at [49]
84. They further submitted that the network and the pest control device each performs its own function independently of the other even though there is some working relationship between them, and the claimed invention is therefore still a collocation. They referred me to British Celanese, Ld. v. Courtalds Ld.[21], where Lord Tomlin stated as follows:
“It is accepted as sound law that a mere placing side by side of old integers
so that each performs its own proper function independently of any of the othersis not a patentable combination, but that where the old integers when placed together have some working inter-relation producing a new or improved result then there is patentable subject-matter in the idea of the working inter-relation brought about by the collocation of the integers”.[21] (1935) 52 R.P.C, 171 at 193
85. The present invention claims a system comprising a plurality of pest control devices that can detect the presence of a pest, generate a signal indicative of pest presence and a wireless communication circuit that can transmit the signal wirelessly to a controller through a gateway. Each of the pest control devices includes a sensor, a controller to generate an electronic signal and a wireless communication circuit to transmit the electronic signal, all built into it. In my view, this is more than the mere placing side by side of a known pest control device and a known wireless network. The incorporation of the controller and the wireless communication circuit in the pest control device are critical to the generation and wireless transmission of the electronic signal to the communication node. There is clearly a tangible working relationship between the pest control device and the wireless network. The human detectable indicator on the pest control device also interacts with the gateway and wireless communication node to indicate establishment of the wireless communication network. This again provides a further working interrelationship between the pest control device and the wireless network.
86. In my view, there is a working relationship between the pest control devices and the wireless network, and the claimed invention is not a mere collocation of known integers. The claimed invention is a manner of manufacture.
87. The opponent also submitted that even though physical apparatus is involved, as the claim does not place any limitation on the actual structure of the pest control devices and how they interact with the network, the substance of the claimed invention is merely networked computers programmed to interpretation information in relation to the presence of pests and this is clearly not patentable subject matter.
88. Again, I remain unconvinced. The substance of the invention is how to transmit pest detection signals wirelessly to a remote controller and also to provide at the pest control device an indication to the operator that the sensor has been wirelessly linked to the wireless network. It is not merely interpretation of information as suggested by the opponent. This attack on manner of manufacture also fails.
SUPPORT
89. The opponent submitted that the claims lack support because there is no technical contribution to the art either in relation to the pest sensor or to the wireless networking. They argued that the only pest sensor described is the modified mouse trap in figure 3.
90. I do not find this submission persuasive. What the test requires is to decide whether the scope of the claims extends beyond the technical contribution disclosed in the description. When one reads the description, it is clear that the alleged technical contribution to the art is the provision of a sensor in a pest detection station that can detect the presence of pests and on detection of pests communicate this information to a central controller through a wireless network and further having a human detectable indicator to indicate whether the pest detection station is linked to the wireless network. Each of the independent claims defines a pest control device having a sensor that can wirelessly communicate with a controller/data collector and a human detectable indicator to indicate establishment of wireless communication capability. While the only pest sensor described in the preferred embodiments is a mouse trap, the present invention is not limited to any particular pest or pests but is disclosed as being suitable for detecting a variety of pests. The type of pest or the structural aspects of the pest detector is clearly not critical to the invention. In my view, the independent claims do not extend beyond the contribution to the art and are supported by the description.
91. The opponent also submitted that claim 2 lacks support as far as bedbugs are concerned. While I accept that there is no detailed description in relation to bedbugs and the invention is primarily directed to the detection of termites, the description does disclose that the present pest control system can be used for a range of other pests including rodents, bedbugs and other troublesome insects (page 9, lines 15-20). There is no evidence from the opponent’s experts to establish that the pest control system of the present invention could not be made to work with bedbugs. In the absence of such evidence I cannot be satisfied that claim 2 lacks support.
92. The opponent also submitted that claim 7 which defines that the sensor generates a detection signal based on electrical capacitance and claim 19 which defines that the device comprises a hall effect device or a magnetoresistor also lack support as there is no disclosure of how these might be used for any pest.
93. In relation to claim 7, the feature of electrical capacitance finds support in the specification at page 9, line 7. While there is no embodiment described in relation to the use of electrical capacitance, I have no evidence to establish that the skilled addressee would not be aware of how to use electrical capacitance to generate a detection signal. This claim is supported.
94. In relation to claim 19, the feature of a hall-effect device or magnetoresistor finds support in the specification at page 11, line 2. These components are in relation to an operator activated switch in the pest control device and not to generate a signal. Hall-effect devices and magnetoresistor devices are both well known in the art of switches. This claim is supported.
CONCLUSION
95. The opposition is successful. All of the claims lack an inventive step. None of the other grounds have been made out.
96. Although I have found all of the claims to lack an inventive step, it is possible that there is subject matter in the specification that is both novel and inventive. I therefore allow the applicant a period of 2 months from the date of this decision to propose amendments that would overcome my adverse findings.
COSTS
97. Both parties have sought costs in this matter. As the opponent has been successful, I awards costs according to schedule 8 against the applicant.
R Subbarayan
Delegate of the Commissioner of PatentsAnnex – Claims of the specification
1.A system comprising:
a plurality of pest control devices, each pest control device comprising (i) a bait comprising a pest-consumable material, (ii) a sensor operable to generate a detection signal indicative of a pest presence, (iii) a controller configured to receive the detection signal and generate an electronic signal based on the detection signal, and (iv) a wireless communication circuit operable to transmit the electronic signal,
a gateway to receive electronic signals from the plurality of pest control devices, and
a wireless communication node operable to relay electronic signals to the gateway from the plurality of pest control devices,
wherein (i) the wireless communication node, the plurality of pest control devices, and the gateway are configured to establish a wireless communication network, and (ii) each pest control device comprises a human-detectable indicator to indicate establishment of the wireless communication network.2.The system or claim 1. wherein the bait comprises an attractant for at least one of bedbugs and termites.
3.The system of claim 1, wherein the bait comprises an attractant for rodents.
4.The system of any one of claims 1 to 3, further comprising:
a computer network in communication with the gateway, and
a data management server in communication with the computer network to receive and
store data based on the electronic signals from the plurality of pest control devices; and a user access client connected to the computer network to access data stored in the data management server.5.The system of any one of claims 1 to 4, further comprising:
a second plurality of pest control devices, each pest control device comprising (i) a bait
comprising a pest-consumable material, (ii) a sensor operable to generate a detection signal indicative of a pest presence, (iii) a controller configured to receive the detection signal and generate an electronic signal based on the detection signal, and (iv) a wireless communication circuit operable to transmit the electronic signal, and
a second wireless communication node operable to relay electronic signals to the
gateway from the second plurality of pest control devices.6.The system of any one of claims 1 to 5, wherein the human-detectable indicator is a visual indicator.
7.The system of any one of claims 1 to 6, wherein the sensor is operable to generate the detection signal based on electrical capacitance.
8.A method comprising:
positioning a wireless communication node at a first position,
generating a first output at the wireless communication node to indicate direct or indirect communication between the wireless communication node and a data collector,
positioning a pest control device at a second position, the pest control device comprising a pest sensor, a bait comprising a pest-consumable material, and a wireless communication circuit, and
generating a second output at the pest control device to indicate direct or indirect communication between the pest control device and the data collector.9.The method of claim 8, wherein the first output comprises a luminous visual output and the second output comprises a luminous visual output.
10.The method of claim 8 or claim 9, further comprising generating a third output different than the first output at the pest control device when the pest control device fails to establish a wireless communication link after a predefined period of time.
11.The method of claim 10 further comprising:
installing one or more other pest control devices in response to the third output, and
after the installing of the one or more other pest control devices attempting again to establish the wireless communication link for the selected pest control device.12.The method of any one of claims 8 to 11, further comprising:
positioning additional pest control devices to form a number of pest control device groups,
providing a number of different gateways, the gateways each corresponding to a respective one of the number of pest control device groups,
monitoring each or several different locations with the respective one of the number of pest control device groups. the different locations being remote from one another;
from each or the different gateways,
communicating information to a data management server and
establishing user access with the data management server.13.The method or any one or claims 8 to 12, further comprising:
transmitting sensor information from the pest sensor or the pest control device to the wireless communication node and
relaying the sensor information from the wireless communication node to the data collector.14.A system, comprising:
a pest control device, comprising:
a pest sensor operable to generate one or more signals representative of pest detection;
a bait comprising a pest-consumable material,
circuitry comprising (i) a wireless communication transceiver coupled to the pest sensor to transmit information corresponding to the pest detection, and (ii) a controller to execute operating logic to establish a wireless communication link with one or more other devices, and
an indicator coupled to the circuitry to provide a first operator output indicative of establishment of the wireless communication link, and a second operator output indicative of failure to establish the wireless communication link.15.The system or claim 14, further comprising a gateway to receive the information corresponding to the pest detection from the pest control device.
16.The system or claim 15, further comprising a wireless communication node operable to relay the information corresponding to the pest detection to the gateway from the pest control device.
17.The system or claim 16, wherein the wireless communication node comprises a second pest control device.
18.The system or any one or claims 15 to 17, wherein the gateway comprises means for communicating sensor status information from the pest control device to a data management server. and the data management server comprises (i) means for storing and evaluating the sensor status information and (ii) means for accessing data stored with the data management server by a user.
19.The system of any one of claims 14 to 18, wherein the pest control device comprises at least one of a hall effect device or a magnetoresistor.
20.The system of any one of claims 14 to 19, wherein the pest control device comprises a component responsive to user input to place the transceiver in an installation mode, and the controller is configured to execute the operating logic to establish the wireless communication link with one or more other devices during the installation mode.
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