Shen Dian Enterprise Ltd v Ark Corporation Pty Ltd - [2018] APO 92

IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Shen Dian Enterprise Ltd v ARK Corporation Pty Ltd [2018] APO 92

Patent Application: 2011205034

Title:Charging Apparatus and Portable Power Supply

Patent Applicant:                   ARK Corporation Pty Ltd
Opponent:  Shen Dian Enterprise Ltd
Delegate:  R Subbarayan
Decision Date:  21 December 2018
Hearing Date:  12 April 2018, in Canberra

Catchwords:  PATENTS – portable battery box with built-in charger – whether the claims are fairly based, novel and inventive – some of the claims lack fair basis – all of the claims are novel – all of the claims lack an inventive step – costs awarded

Representation: Counsel for the applicant: Tom Cordiner
Patent attorney for the applicant: Fisher Adams Kelly Callinans
Counsel for the opponent: Chris Burgess
Patent attorney for the opponent: IP Solved

IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Patent Application: 2011205034

Title:Charging Apparatus and Portable Power Supply

Patent Applicant: ARK Corporation Pty Ltd
Date of Decision: 21 December 2018
DECISION
The opposition is successful. Claims 3 and 20 are not fairly based. All the claims lack an inventive step in light of the combined disclosure of documents D5 and D14.
I allow the applicant a period of 2 months from the date of this decision to propose amendments that overcome the deficiencies that I have identified.
I award costs against the applicant.
REASONS FOR DECISION
BACKGROUND

Patent application 2011205034 in the name of ARK Corporation Pty Ltd (the Applicant) was filed on 27 July 2011. It claims an earlier priority date of 27 July 2010 from Australian provisional application 2010903353. Following examination it was advertised as accepted on 24 December 2015. A notice of opposition to the grant of the patent was filed on 23 March 2016 by Supercheap Auto Pty Ltd. The Statement of Grounds and Particulars (SGP) was filed on 23 June 2016. Following a request dated 1 August 2016 from Shen Dian Enterprises Ltd, the Notice of Opposition was amended to record the opponent as Shen Dian Enterprises Ltd (the Opponent). An amended SGP was filed by the opponent on 23 September 2016. The evidentiary stages were completed on 10 February 2017. On 13 March 2017, the applicant proposed amendments to the complete specification including what appeared to be substantial amendments to the claims. A further set of proposed amendments was filed on 15 May 2017 following the receipt of comments from the opponent. The proposed amendments were advertised as having been allowed on 4 January 2018. The matter was heard in Canberra on 12 April 2018.
GROUNDS OF OPPOSITION
The amended SGP includes the grounds of lack of novelty, lack of inventive step, lack of clarity, lack of fair basis, lack of full description, lack of manner of manufacture and lack of utility. However at the hearing, the opponent did not press the last three grounds. This decision is therefore restricted to the grounds of novelty, inventive step, clarity and fair basis.
RELEVANT LAW
The examination request for this patent application was filed on 9 April 2013. As a consequence, substantive amendments of the Patents Act (the Act) brought about by the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 do not apply to the present application. This includes the amendment to subsection 60 (3A) that allows the Commissioner to refuse a patent application if satisfied on the balance of probabilities that a ground of opposition exists.
Consequently the former standard for opposition proceedings applies and the opponent must establish that it is clear or practically certain that the patent is invalid (F Hoffman La Roche AG v New England Biolabs Inc [2000] FCA 283 at [29], [67]; 50 IPR 305 at 311, 319; Commissioner of Patents v Sherman[2008] FCAFC 182 at [18], [22]; 79 IPR 426; Genetics Institute Inc v Kirin-Amgen Inc [1999] FCA 742; [1999] 92 FCR 106 at [17]).
EVIDENCE
The opponent’s evidence in support comprises a declaration dated 13 September 2016 from Yimin Ke with exhibits YK-1 to YK-25 (Ke).
Mr Ke is an electrical engineer who founded Shen Dian Enterprises Ltd in 1993 which initially specialised in automotive electronic control system maintenance and repairs. Subsequently Shen Dian started designing and manufacturing battery chargers and marketed their first Shen Dian branded smart battery charger (Exhibit YK-20) in Australia and New Zealand in 2003. From 2005, Shen Dian started to manufacture chemistry-select battery chargers which are capable of charging batteries of different chemistry. Since 2007, Shen Dian has also been involved in the design and manufacture of portable battery boxes. They have supplied battery chargers and battery boxes to various automotive parts retailers including Supercheap Auto and Repco Auto Parts.
In his evidence, Mr Ke discusses various prior art battery chargers and battery boxes. He then provides his opinion on the claimed invention and why it is not novel and/or lacking in inventive step over some the prior art that he has discussed.
Evidence in answer from the applicant comprises a declaration dated 21 December 2016 from Richard Arakelian with exhibits RA-001 to RA-004 (Arakelian 1) and a declaration dated 21 December 2016 from Andrew Reade with exhibit AR-001 (Reade).
Mr Arakelian is a mechanical engineer who started a company called Ark Engineering Pty Ltd in 1978. This company changed its name to Ark Corporation Pty Ltd in 2004 and Mr Arakelian is currently the Managing Director. Ark designs and manufactures a variety of products for the automotive industry including battery boxes. He is named as a co-inventor of the invention of the opposed application. He states that Ark has granted Australian (2003258369) and US (7573229) patents for their first generation Ark battery box and that the present application is an improvement over this first generation battery box. Mr Arakelian is a named inventor in the AU and US patents. In his evidence he discusses Ark’s innovative track record and some of the awards received for their second generation product, which he refers to as the “Arkpak”.
Mr Reade is an industrial designer who is currently working as the Product Development Manager at Ark Corporation. He was involved in the design and manufacture of battery boxes from late 2009 and was the project manager and also co-inventor for the second generation Ark battery box. He provides his opinion on what was common general knowledge in the art in relation to battery boxes and battery chargers. He also discusses what is called the Peukert effect which can make measuring battery charge percentage difficult in large batteries. He then goes on to discuss the development of the second generation Ark battery box and the technical risks involved with this project. He concludes his declaration with his opinion as to how the claimed invention is different from the cited prior art.
The opponent did not file any evidence in reply.
New Documents filed at the Hearing and Regulation 5.23
Regulation 5.23 was introduced as part of the so called Raising the Bar reforms, and allows the Commissioner the discretion to consider a document that is relevant to the opposition, has not been filed in evidence and is available in the Patent Office. If the Commissioner proposes to rely on the document, the Commissioner must give the parties notice of the Commissioner’s intention to do so and an opportunity to give evidence or make representations about the document.
The operation of regulation 5.23 with respect to whether the Commissioner should rely upon a document has been considered in Merial Limited v Bayer Intellectual Property GmbH [2015] APO 16 where the delegate held that a decision under this regulation must have regard to the nature of the information and whether the information is likely, if not certain, to change the outcome of the opposition in a significant way.
The opponent filed at the hearing three new documents that they alleged establishes that D13, one of the documents that they rely on to establish lack of inventive step, was publicly available from at least July 2009 and requested that I bring these into the proceedings under the provisions of regulation 5.23. I advised the parties at the hearing that I would consider the relevance of these new documents in due course and if I decide to bring them into the proceedings I would advise the parties accordingly and also invite the applicant to file any additional submissions/evidence in relation to these documents.
I subsequently formed the view that document D13 is highly relevant and as the publication date of this document was uncertain, decided to bring the new documents into the proceedings and advised the parties accordingly on 27 August 2018. The applicant filed on 12 October 2018 additional submissions along with a new declaration from Mr Arakelian also dated 12 October 2018 (Arakelian 2).
SPECIFICATION
The present invention relates to portable battery boxes that are suitable for housing and charging batteries that are used for providing power in remote locations and in caravans and motor homes. Such boxes typically comprise a portable housing that can receive a battery and a lid to close the housing after the battery is placed in the housing. The battery box has electrical connectors and other componentry that allow the battery to be charged while it is within the housing.
The specification states that the “advantages of the battery boxes include that the boxes protect the batteries themselves, componentry associated with charging and discharging, and that the housings facilitate ease of handling and reduce potential for injury to users”[1].
[1] Specification at page 1, lines 16-19
It then identifies the following drawbacks with some known battery boxes:
·Monitoring the recharging of the batteries disposed in the battery boxes is inflexible and difficult as they provide very little useful information about the charging process.
·A charging method applied to one type of battery may not be effective for other types of batteries, especially if the chemistry of the other types is different.
·Access to the battery terminals can be inhibited by structural members.
·The battery terminals could be exposed creating a danger for users.
·Some known battery boxes have to be lifted by their lids and this can cause deformation of selected areas of the box, which can then lead to other consequences like release of connecting cleats and clips.
·Some boxes do not have adequate controls and monitoring devices.
.
The present invention is stated to overcome one or more of the aforementioned drawbacks and a number of consistory clauses follow that by and large mirror the independent claims of the specification.
This is then followed by a detailed description of a preferred embodiment that gives a better understanding of the present invention. Figures 3 to 5 of the specification are reproduced below:
These figures show a battery box 10 that has a rectangular main body (12) with a hinged lid (20). A latch 30 serves to fasten the lid to the main body when the lid is in a closed position. A battery 14 can be housed within the box. One or more electrical access ports 40 are provided in the lid and can be operatively connected to the battery in order to charge/discharge the battery, monitor parameters of the battery and to provide power to or from the battery. The electrical access ports include an LCD display screen 41, a plurality of user input buttons 42, an external power supply socket 25, a power outlet 46 and a pair of battery posts 48. Hinged access covers 50, 51, 52 are also provided which in the closed position cover the access ports and protect them from damage and also inadvertent operation. The covers can be transparent or have a transparent window in order to view the access ports. Handles 70 are provided in the main body for lifting the battery box. The handles include apertures 71 to provide ventilation for the box and a cooling fan 60 in the lid circulates air within the box to cool the battery and the electrical/ electronic components.
The battery box is also provided with a charging apparatus for charging and/or discharging a battery that is placed inside the battery box. The charging apparatus has a processing system which comprises a processor, a memory, one or more input/output devices, the user input buttons 42 and the display 41 which are all coupled together by a bus. The processor controls the charging and conditioning of the battery and monitors and displays relevant charging information on the display.
The charging apparatus is capable of charging batteries of different chemistry and the processor will select the appropriate charging program based upon the chemistry of the battery that is selected by the user. When the charging apparatus is turned on, the processor will request the user to input the type of battery that is inside the battery box, using the user input buttons. Some of the battery types or chemistries mentioned in the specification include lead acid battery, gel battery, calcium battery and AGM battery.
Two reference voltage maps, namely a charging map and a discharging map, are stored in the memory for each of the different charging programs. The processor consults these reference maps periodically during the charging/discharging process to assess the condition of the battery and display the battery condition and other relevant information on the display. The information that can be displayed includes the following:
·Type of cycle
·Battery charge percentage (State of Charge) expressed as a percentage of full charge
·Battery Voltage
·Charging current
·Discharge current and
·Time to full charge or discharge expressed in hours
The specification also provides brief details of each of the different modes of charging, discharging, testing and simultaneous charging and discharging and the information that will be displayed in each of these modes.
The specification ends with 23 claims which as I noted earlier are claims that have been amended during the opposition proceedings. Independent claims 1, 3 and 20 are as follows:
1. A portable battery box for housing and charging a battery, the portable battery box including:
a housing including spaced-apart walls for receiving a battery for removable mounting therein and a lid for closing the housing;
a charging apparatus for charging the battery;
a display screen disposed on or in the walls or lid of the housing for displaying messages or images thereon relating to the battery,
wherein the messages or images include one or more in the group consisting of time remaining to charge completion, time remaining to discharge completion, battery charge percentage, and
one or more user input selectors to select for input into a processing system a type of battery removably mounted in the housing, the messages or images differing depending on the battery type input to the processing system, the type of battery selected on the basis of its construction.
3. A method of monitoring a charging or discharging operation of a battery which in use is removably disposed in a portable housing having opposed walls having an open top, and a lid for closing the open top, the method including the steps of:
receiving from one or more input selectors a battery type having a particular construction, relating to a selected battery for charging and/or discharging in the portable housing, into one or more computing processors;
measuring, by one or more computing processors, one or more measured battery charging and/or discharging parameters;
estimating one or more estimated charging and/or discharging parameters with one or more computing processors; and
displaying, with one or more computing processors, the measured and estimated charging and/or discharging parameters on a display screen mounted on or in the lid or walls of the portable housing, the display screen for displaying messages or images thereon relating to the measured and estimated charging and/or discharging parameters, wherein the measured and estimated charging and/or discharging parameters are selected from the group consisting of battery voltage, battery charge percentage, battery charging current, and battery discharging current.
20. A portable power supply suitable for housing different types of battery, the portable power supply comprising:
a housing having spaced-apart walls and an open top for receiving a battery;
a lid for closing the open top;
an inverter including a system for providing alternating current from the battery;
and a display screen disposed on or in the lid or walls of the housing, the display screen for displaying messages or images thereon relating to the battery;
wherein the messages or images on the display screen are selected from the group consisting of battery type, battery charge percentage, time remaining to discharge completion, and battery capacity in Ampere hours; and
one or more user input buttons for selecting the type of battery disposed within the housing, the display screen displaying differing messages or images depending on selection of the battery type.
CLARITY AND CLAIM CONSTRUCTION
The 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”.
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 Co v Commissioner of Patents (1974) 48 ALJR 59). While it is certainly possible to apply an overly meticulous, semantic analysis and come up with words or short phrases which are, strictly speaking, not perfect, I note it was said in Austal Ships Sales Pty Ltd v Stena Rederi Aktiebolag [2008] FCAFC 121, 77 IPR 229 at [81]:
“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”
Construction of the battery
The opponent submitted that it is unclear in claims 1 and 3 what is meant by “construction” of the battery. They argued that this could refer to the shape or size of the battery, the voltage of the battery or the chemistry of the battery.
The applicant submitted that it is clear from reading the claims in context that the construction of the battery refers to the chemistry of the battery and I am inclined to agree. The authorities have held that while the meaning of a term in a claim that is clear cannot be varied by reference to the body of the specification, if the meaning is unclear it is then permissible to resort to the body of the specification to clarify the meaning. This is clearly such an instance. There are various references in the body of the specification where it talks of battery type and construction in the context of the chemistry type of the battery, i.e. lead acid, calcium, AGM and gel. See for example page 2, lines 23-24; page 4, lines 22-25 and page 12, lines 16-21.
This term in the claims is clear.
Battery box
The applicant submitted that the term battery box would be understood in the art as being boxes or containers for housing batteries that are used as energy storage units either in remote locations or in marine/ automotive applications.

The opponent submitted that the term “portable battery box” does not place any limitation on the size of the battery box other than that it should be portable and that it would also include boxes for housing small batteries such as those used in small portable electronic devices.
As noted earlier, the specification starts by describing portable battery boxes as boxes that are suitable for housing and charging batteries that are used for providing power in remote locations. The rest of the specification including the preferred embodiments again clearly suggest that the batteries that are housed in these boxes are big batteries and not the small ones that are used in small electronic devices.
Mr Reade states that battery boxes are for housing batteries that “are about 100 to 120 Ah to usefully deploy power for, say, a 150W light, which may draw about 12 Amperes when in use”[2].
[2] Reade at [32]
This view is also supported by Mr Ke when he states “As their name suggests, portable battery boxes include a housing for containing and protecting a battery and associated componentry, such as charging circuitry. Portable battery boxes are typically used as a supply of suitable electrical power when in a remote location, such as camping or fishing. By way of example, portable battery boxes may be used for powering a camp fridge and/or lights”[3].
[3] Ke at [17]
While the plain meaning of the term “battery box” would appear not to place any limitation on the size of the battery or on the size of the box, it is clear from the specification as a whole and the evidence of Mr Reade and Mr Ke that the term “battery box” in the context of the present invention would be understood in the art as referring to boxes or containers for housing batteries that are used for providing power in remote locations and in caravans and other recreational vehicles.
Is the battery charging apparatus within the housing/battery box
The opponent submitted that it is not clear whether claim 1 requires the battery charger to be housed within the battery box. However I beg to disagree. Claim 1 defines a “portable battery box” that includes a charging apparatus for the battery that is received within the housing of the battery box. This definition, in my view, clearly requires the charging apparatus to be one of the components of the battery box. The actual location of the charging apparatus in the battery box is however not specified.
In relation to claim 3 which is directed to a method of charging a battery and claim 20 which is directed to a portable power supply, a similar conclusion is not readily apparent. While these claims define that the battery is disposed in a portable housing there is no explicit definition of a charging apparatus or its location. While references to charging and discharging the battery in the housing and to one or more computing processors for measuring and estimating charging and discharging parameters and displaying such parameters on a display screen mounted on the lid of the housing, clearly indicate the presence of a charging apparatus, I can see no further requirement that this charging apparatus should be a component of the portable housing. The applicant admitted as much at the hearing. Hence claims 3 and 20 do not require the charging apparatus to be a component of the portable housing and could well be an external charging apparatus that can be electrically connected to the battery in the portable housing for charging purposes.
Display Screen
Each of the independent claims defines a display screen that is disposed or mounted on the walls or lid of the portable housing and which is capable of displaying messages or images thereon.
The opponent submitted that the inclusion of a display on a battery charging device, such as a battery box, was a well-known feature at the priority date and that a display screen can be “as simple as a few LED lights on a flat surface that explains what each LED light means (eg, battery full or battery empty, of charge)”[4].
[4] Opponent’s written submissions at [6.16]
The Macquarie Dictionary Online defines “display” as “an electronic system capable of representing information visibly, as on a screen” and a “screen” as “something affording a surface for displaying films, slides, etc”.
Therefore a “display screen” in the context of the present invention could be construed as an electronic system that has a surface that can display visible information in the form of messages or images.
Based on this construction I would not consider one or more LED lights on a wall of battery box housing to be a display screen that can display information in the form of messages or images.
Messages or Images
Claim 1 defines that the messages or images that can be displayed on the display screen include “one or more in the group consisting of time remaining to charge completion, time remaining to discharge completion, battery charge percentage”.
I agree with the opponent’s submission that this definition would be met if any one of the specified parameters can be displayed and there is no requirement that the display should also be able to display each of the specified parameters. For instance a display that displays only the battery charge percentage and not the time remaining to charge completion or the time remaining to discharge completion would still fall within the scope of this claim.
Similarly claims 3 and 20 also only require that the display be able to display at least one of the parameters specified and not all of them.
In relation to the parameter of battery charge percentage, the opponent submitted that the claim does not specify any particular level of accuracy and that even basic images of battery charge levels such as a plurality of bars would suffice. Again I agree. I also note that figures 8 and 9 of the present application also show the battery charge levels through a plurality of bars.
FAIR BASIS
The approach to assessing fair basis was summarised by Bennet J in Sigma Pharmaceuticals (Australia) Pty Ltd v Wyeth [2011] FCAFC 132 at [64]:
“Section 40(3) of the Act provides that the claims of a patent must be fairly based on the matter described in the specification. The test for determining whether a claim is fairly based is determined by the application of the principles set out in Lockwood (No 1) at [69]. Section 40(3) requires a “real and reasonably clear disclosure” of what is claimed. The invention must be broadly described in the body of the specification and not travel beyond the matter disclosed. As the High Court emphasised in Lockwood (No 1), s 40(3) does not involve an analysis of the inventor’s rights to the invention but whether, as a matter of drafting, the claims can be said to reflect what is disclosed or stated in the body of the specification”.
The opponent submitted that each of the independent claims lacks fair basis as they “do not require that the charging apparatus be within the housing or battery box, whereas the body of the specification provides no real and reasonably clear disclosure of the invention without the charging apparatus being within that housing or box. As a result, the invention as claimed travels beyond the matter disclosed in the specification”.
The applicant argued that independent claim 1 clearly defines the charging apparatus to form part of the battery box and that while claims 3 and 20 do not require the charging apparatus to form part of the battery box, they do not lack fair basis for the following reasons:
·They are supported by broad consistory statements in the body of the specification that do not require the charging apparatus to form part of the battery box or housing.
·These consistory statements are not inconsistent with the description as a whole. For example the specification states at page 3, line 8 that the battery box preferably includes a battery charger.
·The fact that the preferred embodiment describes the battery charger as being part of the battery box provides no basis for finding that claims 3 or 20 lack fair basis.
In relation to claim 1, I have earlier found that the charging apparatus is a component of the battery box and therefore the opponent’s submissions in relation to this ground do not apply to claim 1.
While I accept that the consistory statements on page 3 and pages 4, 4a generally mirror claims 3 and 20 respectively in that they do not require the charging apparatus to be a part of the battery box/portable housing, the High Court in Lockwood[5] has clearly stated that consistory statements that mirror the claim cannot provide fair basis if these statements are inconsistent with what the rest of the specification asserts as the invention:
“A “coincidence of language” between a claim and part of the body of a specification does not establish fair basing if that part of the language of the specification does not reflect the description of the invention in the light of the specification as a whole.”
[5] Lockwood Security Products Pty Ltd v Doric Products Pty Ltd [2004] HCA 58
It is clear that the preferred embodiment described discloses the charging apparatus and the display screen to be components of the battery box. The charging apparatus includes a processing system that is adapted to receive information about the battery type from the user input selector buttons on the housing and accordingly choose the appropriate charging cycle for the chosen battery type. The processing system also then displays on the display screen that is provided on the walls or lid of the housing, relevant information on the charging process, which information is also dependent on the battery type chosen. All of this is clear and understandable when the charging apparatus is a part of the portable housing.
There is however no description of an embodiment where the charging apparatus is not part of the portable housing, but where the display screen that provides charging process related information is a part of the portable housing as required in claims 3 and 20. While there are the consistory statements and a lone statement on page 3 that the battery box need only preferably include a charging apparatus, I can find no real disclosure of the charging apparatus not being in the portable housing when the display screen is part of the portable housing. As the display screen needs to display charging related information that is dependent on the battery type and charging cycle that the charging apparatus is using, the display screen needs to receive this information from the processing system associated with the charging apparatus. If the charging apparatus was not part of the portable housing, the description is totally silent on how the display screen would communicate with the processing system of an external charging apparatus to get this information. While a skilled addressee may be able to work out how this could be done and perform the invention using his common general knowledge, the fact remains that there is still no real and reasonably clear disclosure of such an arrangement as required for fair basis.
In my view, claims 3 and 20 that require the display screen to be disposed on the lid or walls of the housing but do not also limit the charging apparatus and its processing system to be a part of the housing, travel beyond the matter disclosed in the body of the specification. These claims are therefore not fairly based.
NOVELTY
It is well established that the general test for lack of novelty is the reverse infringement test. The classic formulation of this test is that given by Aickin J in Meyers Taylor Pty Ltd v Vicarr Industries Ltd, [1977] HCA 19 at [20]; 137 CLR 228 at 235:
“The basic test for anticipation or want of novelty is the same as that for infringement and generally one can properly ask oneself whether the alleged anticipation would, if the patent were valid, constitute an infringement”.
This test is satisfied if the alleged anticipation discloses all the essential features of the invention as claimed (see Nicaro Holdings Pty Ltd v Martin Engineering Co, [1990] FCA 40; (1990) 91 ALR 513 at 517). In order to meet this requirement, the prior art must "contain clear and unmistakeable directions to do what the patentee claims to have invented" (The General Tire & Rubber Company v The Firestone Tyre and Rubber Company Limited, [1972] RPC 457 at 486). In a similar vein, what a prior art document teaches is to be distinguished from what might be “included” or “encompassed”. “A prior broad disclosure thus may not be sufficient ‘in the absence of the skilled addressee understanding or perceiving’ the later claimed invention therein” (Sanofi-Aventis Australia Pty Ltd v Apotex Pty Ltd (No. 3), [2011] FCA 846 at [180]).
The only claims that have been opposed under this ground are independent claim 3 and its appended claim 23. The opponent submitted that these claims are not novel over prior art (D1) US 5780992.
D1 is titled “Rechargeable battery system adaptable to a plurality of battery types” and describes a portable electronic device that can determine the chemistry of the rechargeable battery pack that is inserted into the device and use that information to choose a charging cycle that is best suited for that battery type. Figure 1 of D1 is reproduced below:
The device is a portable data collection terminal 10 that uses a rechargeable battery pack 12. The battery pack is inserted into a battery cavity 14 in the data terminal and secured therein by means of the battery endcap 16. The data terminal includes a display screen 20 and a data input stylus 18 using which data can be input into the system. An external power supply can be connected to the terminal in order to operate the terminal or to recharge the battery pack. The data terminal is capable of determining the chemistry/type of the battery pack by either receiving such information that is stored in the battery pack or by running certain sub-routines. This information is then used to choose a particular battery charging algorithm that is optimised for that battery chemistry. Battery information such as battery construction, nominal output voltage, present output voltage and total battery capacity, number of recharge cycles can be displayed on the display screen.
The opponent relied on the evidence of Mr Ye who is of the view that all of the features of claim 3 are disclosed in D1 and has also provided a novelty table identifying the claimed features in D1.
It would appear that the reason that the opponent cites this document only against claim 3 and not also against claim 1, is that claim 3 does not require a battery box as would be understood in the art, instead only requiring that the battery to be disposed in a portable housing. While that may be so, it would certainly appear from figure 1, that D1 is quite different in construction to the housing of the battery box of the present invention.
The applicant identified three features of claim 3 that they submitted are not disclosed in D1:
(a) “a battery which in use is removably disposed in a portable housing having opposed walls having an open top, and a lid for closing the open top”.
The applicant argued that data terminal shown in Figure 1 does not feature a housing consisting of opposed walls having an open top, and a lid for closing the open top. Instead, the device has an end cap on the bottom right hand end of the device (item 16).
It is clear from figure 1 that the cavity 14 into which the battery pack is inserted is a horizontally extending cavity that opens on to the front side of the data terminal. While the opponent submitted that this is merely a matter of orientation of the device, it is quite clear that the device of D1 is designed to be used in the orientation that is shown in figure 1. The location of the display and controls on the device would require the device to be in this orientation during use.
The orientation of the housing of claim 1 is different from that of D1.
(b) “receiving from one or more input selectors a battery type having a particular construction, relating to a selected battery for charging and/or discharging in the portable housing, into one or more computing processors”.
The applicant submitted that while the data terminal of D1 has an “input stylus” that enables data to be input, there is no disclosure that the input stylus can be used to select the battery type. To the contrary, D1 discloses that the processor itself makes an automatic determination about what the battery type is, without any input from the user and there is therefore no disclosure of receiving a battery type having a particular construction from one or more input selectors, as claimed.
The opponent accepted that there is no disclosure of user input of the battery type, but argued that the sensing function of D1 that makes the automatic determination of the battery type constitutes an input selector within the scope of claim 3.
The Macquarie Dictionary Online defines the term ‘select’ as “to choose in preference to another or others; pick out” and ‘selector’ as “a device which selects”. Therefore the term ‘one or more input selectors’ requires that there be at least one device that can be used to select or choose the type of battery that is disposed in the housing. In my view, a sensor or subroutine that automatically identifies the type of battery would not fall within the scope of an ‘input selector’ as there is no device that allows the choosing or selection of one type of battery in preference to another type.
This feature is not disclosed in D1.
(c) “displaying, with one or more computer processors, the measured and estimated charging and/or discharging parameters on a display screen mounted on or in the lid or walls of the portable housing”.
The applicant submitted that the display screen of D1 is mounted to the left of the battery cavity and is therefore not mounted on the walls of the portable housing in which the battery is disposed.
Claim 3 requires that the portable housing have opposed walls and that the battery is in use housed in a cavity within the housing. I fail to see any requirement that the cavity should have opposed walls. The display screen is mounted on the walls of the portable housing constituted by the data terminal and claim 3 clearly includes within its scope the display being mounted on the walls of the housing. This feature is disclosed in D1.
All the other features of claim 3 are disclosed in D1. However as features (a) and (b) are not disclosed claim 3 is novel over D1.
INVENTIVE STEP
The statutory basis for inventive step is set out at s7(2) and s7(3) of the Act, and is reproduced below:
“(2) For the purposes of this Act, an invention is to be taken to involve an inventive step when compared with the prior art base unless the invention would have been obvious to a person skilled in the relevant art in the light of the common general knowledge as it existed in the patent area before the priority date of the relevant claim, whether that knowledge is considered separately or together with the information mentioned in subsection (3).
(3) The information for the purposes of subsection (2) is:
(a) any single piece of prior art information; or

(b) a combination of any 2 or more pieces of prior art information;
being information that the skilled person mentioned in subsection (2) could, before the priority date of the relevant claim, be reasonably expected to have ascertained, understood, regarded as relevant and, in the case of information mentioned in paragraph (b), combined as mentioned in that paragraph.”
The Dictionary in Schedule 1 of the Act defines the prior art information for the purposes of subsection 7(3) to comprise:
(i)information in a document that is publicly available, whether in or out of the patent area; and
(ii)information made publicly available through doing an act, whether in or out of the patent area.
The test for whether an invention is obvious is whether it would have been a matter of routine to proceed to the claimed invention. In Wellcome Foundation Ltd v VR Laboratories (Aust.) Pty Ltd, [1981] HCA 12, 148 CLR 262 at 286 [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."

Where the invention lies in a combination of integers, the question is not whether each individual integer was obvious but rather whether the combination as a whole was obvious when compared to the prior art base. In Alphapharm[6] at [41], the High Court stated:
“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 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.”
[6] Aktiebolaget Hässle v Alphapharm Pty Limited [2002] HCA 59
Person Skilled In The Art
In Root Quality Pty Ltd v Root Control Technologies Pty Ltd, [2000] FCA 980, Finkelstein J stated at [70] and [71] that the skilled addressee is the person to whom the patent is addressed and who must construe it. Such person works in the art or science with which the invention is connected or is likely to have a practical interest in the subject matter of the invention. A variety of people may have that interest. Finkelstein J further noted various descriptions given to the skilled addressee. These included the “uninventive skilled worker in the particular field” (Leonardis v Sartas No 1 Pty Ltd, (1996) 67 FCR 126) and the “person skilled in the art” (Genentech Inc v Wellcome Foundation Ltd, (1989) 15 IPR 423).
The opponent submitted that the hypothetical person skilled in the art would have a reasonable knowledge of the field of the invention gained from obtaining an electrical or electronics engineering degree and working in the field of battery chargers and portable power supplies. They made much of the fact that Mr Ke is a qualified electrical engineer with years of experience in the field of battery chargers and battery boxes whereas Mr Reade has qualifications only in industrial design and less than a year’s experience in the design of battery boxes and Mr Arakelian does not appear to have any electrical engineering qualifications and that therefore Mr Ke’s evidence should be given more weight than those of Mr Reade and Mr Arakelian. They also highlighted the fact that both Mr Reade and Mr Arakelian work for the applicant.
While Mr Reade and Mr Arakelian may not have any formal qualifications in electrical engineering, they both have been involved in designing and manufacturing battery boxes. While Mr Reade’s experience with battery boxes is only from late 2009, as one who was heavily involved in the development of the second generation Ark battery box I would assume that he would have gained a good understanding of the state of the art and what was common general knowledge in the art. He also states that he worked with a team of experts including electronics engineers in the this project and that his opinion in his declaration represents the combined knowledge of this team. Mr Arakelian clearly has substantial experience in designing and manufacturing battery boxes and agrees with the Mr Reade’s statements regarding the CGK in this art. I am therefore of the view that evidence of Mr Reade and Mr Ke are also of equal probative weight as that of Mr Ke. While they do work for the applicant and in that respect are not independent experts, the same holds true for Mr Ke as well, as he works for the opponent. In the circumstances, I am of the view that the relative, probative value of the evidence from each of the parties is substantially neutral.
Problem to be solved
There was some divergence of opinion between the parties as to the problem that is sought to be addressed by the claimed invention.
The opponent was of the view that the problem is that existing battery boxes with chargers were only suitable for batteries of a particular chemistry and would not be effective if used with batteries of different chemistries.
The applicant on the other hand submitted that problem is two-fold, namely existing battery boxes did not provide adequate information on the charging process and also could not be used to charge batteries of different chemistries.
As I noted earlier, the specification clearly mentions that “monitoring the recharging of the batteries disposed in the battery boxes is inflexible and difficult in known models of portable battery box, in that there is little useful information about the charging process indicated” and that “a charging method applied to some types of batteries is not always effective for other types of batteries, depending on the chemical composition of the battery and other factors, and if the battery in the box is changed to a different type, the charging may be ineffective”. These statements clearly support the applicant’s view of the problems that are sought to be addressed. I will therefore use these problems as the basis for assessing inventive step of the claimed invention.
Prior Art for Inventive Step
The opponent relied on several documents in addition to D1 in support of its case on obviousness. I will briefly discuss the disclosure of these documents.
D5 (US 7573229) is a US patent in the name of Mr Arakelian that is assigned to the present applicant. It describes a portable battery box with a battery charger that is housed within the lid of the battery box (the Ark first generation battery box). This document was published in August 2009.
D6 is a “product knowledge sheet” of the Calibre Deep Cycle Gel Battery Pack. No publication information for this knowledge sheet has been provided, but according to Mr Ke this is the commercial product of Shen Dian’s CPU 2000 battery box product that was first marketed in 2007. It has a built-in charger that can be powered by a 12 volt power source. It has an analogue gauge to show the voltage. This document refers to the product as a battery pack and not as a battery box. It does not disclose nor am I able to discern from the image on the product knowledge sheet any housing with walls and lid to removably receive a battery.
D10 is the Haigh Product Catalogue that provides a brief description and photographs of the Haigh battery box which has a housing for removably receiving a battery and a lid for closing the housing. It does not have a built-in charger, but has a battery condition indicator in the form of LED lights.
D11 is a product brochure of the Calibre 44 Ah Power Pack. No publication information for this knowledge sheet has been provided, but according to Mr Ke this is the commercial product of Shen Dian’s CPU 4000 battery box product that was first marketed in February 2010. It has a built-in charger that can be powered by a 12 volt power source. It has a digital voltage display and LED indicators for charge status. It does not disclose nor am I able to discern from the image on the knowledge sheet any housing with walls and lid to removably receive a battery. This document refers to the product as a battery pack and not as a battery box.
D13 is a product manual of the Redarc BMS 1215 Smart Start Battery Management system. It includes a battery charger that can charge batteries of different chemistries based on user input selection of the battery chemistry. It includes a remote monitor with a display screen that can be mounted anywhere convenient and this display can display battery and charge information. There is no publication information on this document. Mr Ke has stated at [47] that this product was released in the market before the priority date but does not provide any release date. The opponent submitted that the new documents that they filed at the hearing (that I have subsequently brought into the proceedings) establish that the Redarc product was available for sale from at least July 2009. I will discuss this later in this decision.
D14 is a new product release brochure of Projecta's lntelli-Charge Battery Charger that is capable of charging various lead-acid battery chemistries as selected by a user. It includes a remote control display that can be mounted anywhere convenient and this display can display battery and charge information. The brochure has the date November 2009 on the cover page. Mr Ke has stated that this product first came onto the market in 2009.
D15 is the product manual of Shen Dian’s SBC10M battery charger that is capable of charging lead-acid batteries of various chemistries as selected by a user. While it has a couple of analogue gauges to show current and voltage, there is no display screen. There is no information on this document as to when this manual was published but Mr Ke has stated that this product was first marketed for sale in 2007.
D16 is the product manual of Shen Dian’s Power Train battery charger that is capable of charging lead-acid batteries of various chemistries as selected by a user. While it has a few LED indicators to show the charging state, there is no display screen. There is no information on this document as to when this manual was published but Mr Ke has stated that this product was first marketed for sale in 2009.
D17 is the product manual of CTEK's MULTI XS 3600 battery charger and describes a smart battery charger that is capable of being configured by a user to charge lead-acid batteries of different types. While Mr Ke has stated that the user can select the chemistry, the manual talks of three user select modes where each of the modes would appear to be related to the ampere-hour of the battery or the operating temperature rather than a strict chemistry of the battery. While it has a mode selection button and possibly a few indicators to show the mode chosen, there is no display screen. There is no information on this document as to when this product came into the market or when this manual was published. Mr Ke has stated at [47] that this product was released in the market before the priority date but does not provide any release date.
Common General Knowledge (CGK) in the art
The relevant principles in relation to CGK were summarised by Dodds-Streeton J in Wake Forest University Health Sciences v Smith & Nephew Pty Ltd (No 2) [2011] FCA 1002 (30 August 2011) as follows:
“94. In Minnesota Mining and Manufacturing Co v Beiersdorf (Australia) Ltd [1980] HCA 9; (1980) 144 CLR 253 (“Minnesota Mining”) at 292, Aickin J, (subsequently cited with approval in Lockwood Security Products Pty Ltd v Doric Products Pty Ltd (No 2) [2007] HCA 21; (2007) 235 CLR 173 (“Lockwood (No 2)”) at 196-197), stated that common general knowledge is: “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”. It is well understood to be, as stated in Lockwood (No 2) at 196, “part of the mental equipment of those concerned in the art under consideration”.
95. It is not enough that information is publicly available. In Lockwood (No 2), the High Court stated at 197 that:
The effect of Minnesota Mining and Wellcome Foundation was that for the purpose of determining inventiveness prior disclosures which were publicly available information, but which were not part of common general knowledge, were excluded from consideration.
96. Information does not constitute common general knowledge merely because it might be found, for example, in a journal, even if widely read by persons in the art: see British Acoustic Films Ltd v Nettlefold Productions (1936) 53 RPC 221 (“British Acoustic”) at 250 affirmed in General Tire and Rubber Co v Firestone Tyre Rubber Co Ltd (1971) 1a IPR 121 (“General Tire”) at 135.
97. In Alphapharm Pty Ltd v H Lundbeck A/S & Anor [2008] FCA 559; (2008) 76 IPR 618 (“Alphapharm”) at 667, Lindgren J recently observed:
[I]t was held in Astra that information recorded in a document, even a document widely circulated within the art, is not part of general common knowledge merely because the skilled addressee could be expected to locate it. The question is whether it is "generally accepted without question" or "generally regarded as a good basis for further action" by the bulk of those in the art...
98. In Aktiebolaget Hässle v Alphapharm Pty Ltd [2000] FCA 1303; (2000) 51 IPR 375 the Full Federal Court made clear at 391 that “[w]hat might be found by a diligent searcher is not the same as “common general knowledge”.
99. A fact does not form part of the common general knowledge merely because it is known or even well known. Nor does the use of something per se qualify it, as Luxmore J in British Acoustic (cited by the Court of Appeal in General Tire at 135) stated at 250:
It is certainly difficult to appreciate how the use of something which has in fact never been used in a particular art can ever be held to be common general knowledge in the art.”
Based on the evidence from Mr Ke and Mr Reade, it appears to be common ground that the following were CGK in the art at the priority date of the claimed invention.
·Battery boxes of various dimensions with lids
·The Haigh battery box. This battery box has a lid and also LED indicators to show the state of charge of the battery housed within the battery box.
·Use of battery chargers to charge batteries housed in battery boxes.
·Batteries of different chemistries such as calcium, AGM and gel.
·Battery charging devices having processing systems that can measure battery charging and discharging parameters.
·Charging method applied to one type of battery may not be effective for other types of batteries.
·Display screens in general
·User input selectors such as buttons adjacent to display screens.
The applicant submitted that according to Mr Reade, an important part of the CGK is the Peukert effect, which is significant in deep cycle batteries that are typically used in battery boxes. According to Peukert’s law, the discharge current of deep cycle batteries can be very high which can dramatically reduce the capacity rating of the battery and as the rate of discharge increases, the battery's available capacity decreases. This effect makes measuring battery charge percentage more difficult in deep cycle batteries[7]. There is no evidence from Mr Ke to refute this. I therefore accept that the Peukert effect was part of the CGK.
[7] Reade at [18]
The opponent also submitted that the following were also CGK, but this was disputed by the applicant.
Battery boxes with built-in battery chargers

100. The opponent submitted that battery boxes with built-in battery chargers were CGK as evidenced by documents such as D5, D6, D10 and D11, but this was disputed by the applicant who submitted that only battery boxes without chargers such as the Haigh battery box were CGK at the priority date.
101. Of these four documents the Haigh box does not have a battery charger; the CPU 2000 and the CPU 4000 are battery packs and do not appear to have a discrete housing to removably receive the battery and a lid for closing the housing. Hence these documents do not in my view, support the opponent’s submission that they are evidence that battery boxes with chargers had become part of the CGK. While US patent document D5 discloses a battery box with a built-in charger and the corresponding PCT application was published in 2005, this lone patent document cannot establish that battery boxes with chargers were CGK at the priority date, without further evidence that the information in this document had become part of the background knowledge that is available to all in the art at the priority date. A mere assertion by Mr Ke without further evidence or corroboration from an independent expert would not constitute such evidence especially when Mr Reade is clearly not of the same view.
102. I am not satisfied that the evidence clearly establishes that battery boxes with built-in battery chargers were CGK at the priority date.
Battery chargers with user selection of battery type (chemistry)
103. The opponent submitted that the evidence of Mr Ke is that battery chargers that could charge batteries of different chemistries with user input selectors for selecting the type of battery was CGK in the art at the priority date.
104. Mr Ke has stated at [47]:
“Additionally, I would note that a number of our competitors have also released similar battery charger products with multi-chemistry charging presumably for the above reasons and before the Priority Date of the Opposed Application. By way of example, the Projecta range of lntelli-Charge battery chargers (see Exhibit YK-15) include an input button for the manual selection by a user of battery chemistry type from gel, AGM, wet and calcium. Similarly, Redarc's Smart Start Battery Management System (see Exhibit YK- 14) includes a battery setup menu that allows for selection of the type of battery (i.e., gel, AGM, calcium and standard lead-acid) under charge. Additionally, CTEK's MUL Tl XS 3600 battery charger (see Exhibit YK-18) product can be configured to charge many different types of lead-acid battery, such as wet, maintenance-free, AGM and gel batteries”.

He has also stated at [70]:
“Claim 1 finally recites that the portable battery charging system includes one or more user input selectors, which input into the processing system the type of battery construction as selected by the user. As I have noted in paragraphs 45 to 47 above, this feature was well known in the art of battery charging devices at the Priority Date, as evidenced by D13 to D17. By way of example, I would refer to Shen Dian's SBC10M battery charger (i.e., D15), which not only allows for the selection of battery chemistry (i.e., gel/AGM, lead acid and calcium), but also of the voltage (i.e., 6V, 12V and 24V) of the battery to be charged”.

105. Out of these 5 documents relied on by the opponent, there is no publication information on four of these documents. Mr Ke has stated that D14 and D16 came into the market in 2009 and D15 in 2007. While he has also stated that D13 and D17 came into the market before the priority date he does not provide any dates as to when they became available to the public. Even the new documents that I have brought into the proceedings give an availability date for D13 at best in July 2009. These dates certainly suggest that while a few manufacturers may have started making/marketing multi-chemistry battery chargers with user selection before the priority date, they were still new to the market at the priority date.
106. While Mr Reade does not explicitly state that multi-chemistry chargers were not CGK at the priority date, he does list at paragraph [17] of his evidence, things which had become part of the his (and his team’s) background technical knowledge at the priority date of July 2010 and multi-chemistry battery chargers with user selection of battery chemistry does not feature in this list.
107. Mr Ke’s assertion regarding this feature is not corroborated with evidence from an independent expert. While he refers to certain documents that disclose multi-chemistry chargers in support of his assertion, there is no evidence to clearly establish that the disclosures in these documents or their related products had become assimilated as part of the background knowledge of persons working in this field at the priority date.
108. I am not satisfied that the evidence clearly establishes that user select multi-chemistry battery chargers had become CGK at the priority date.
Display Screens on battery boxes for displaying messages or images relating to the battery
109. The opponent submitted that display screens on battery boxes that can display messages or images relating to the battery were CGK at the priority date as evidenced by documents D1-D15. They argued that a display screen can be “as simple as a few LED lights on a flat surface that explains what each LED light means (eg, battery full or battery empty, of charge)”[8].
[8] Opponent’s written submissions at [6.16]
110. The applicant disputed that this feature was CGK and submitted that “At its highest, the CGK concerning portable battery boxes was limited to the display of basic charge capacity information, using three or four LED lights”[9].

[9] Applicant’s written submissions at [78(b)]
111. While Mr Reade has stated at [17] that display screens in general were well known, he does not accept that display screens on battery boxes were CGK at the priority date when he states at [37] that he “knew only of battery boxes which included three or four LED lights to indicate the battery charge capacity” and that “This kind of display resolution masked manufacturers' inability to provide more accurate information in 2010”.
112. While some of the documents such as D1, D2, D13 and D14 have a display screen that can display information relating to the battery, they are not on the walls or lid of a portable housing of a battery box. Most of the other documents have a few LEDs to indicate the charge status of the battery. I have earlier rejected the argument that an indicator comprising a few LEDs can be considered to be a “display screen” on the basis that a “display screen” in the context of the present invention should be construed as an electronic system that has a surface that can display visible information in the form of messages or images.
113. While I accept that the provision of LED lights on battery boxes to indicate charge capacity and charge status of the battery in the box was CGK, I am not satisfied that the evidence clearly establishes that display screens on portable battery boxes to display information relating to the battery were CGK at the priority date.
Obviousness in light of CGK alone
114. The opponent submitted that the each of the independent claims does not involve an inventive step as all of their features were CGK in the art and combining these well-known features would have been obvious to the skilled addressee.
115. The applicant responded that the opponent’s evidence falls well short of establishing that a number of features formed part of CGK and that the combination of these features was obvious and that Mr Ke’s evidence should be treated with caution as his opinion is given in the full glare of hindsight. They submitted that the features of each independent claim interact with each other to provide a portable battery box that can house, protect, charge and/or discharge a battery having a chemistry of the user’s choosing and also provide relevant information in relation to the battery type, charge status and the charging process to enable the user to make informed decisions about battery charging and use.
116. Clearly each of the independent claims is for “a combination patent in the proper sense of that term, i.e. it combines a number of elements which interact with each other to produce a new result or product. Such a combination may be one constituted by integers each of which is old, or by integers some of which are new, the interaction being the essential requirement” (Minnesota Mining & Manufacturing Co v Beiersdorf (Australia) Ltd (1980) 144 CLR 253 per Aickin J at 266.
117. There are two key elements in each of the independent claims. Firstly the user can choose a battery construction (chemistry) of their choice for fitting inside the portable housing and then be able to indicate the construction of the battery chosen to a processing system using input selector buttons. Secondly the display screen provided on the portable housing can display battery related messages based on the battery construction that has been inputted into the system.
118. The first element is directed at addressing the problem of being able to charge batteries of different construction by the user identifying to the processing system the construction of the battery. The second element is directed at addressing the problem of user not having sufficient information about the battery charge levels and the charging process.
119. Whilst on the face of it, it would appear that these two elements are quite independent; there is clearly a working interaction between these elements. The processing system chooses an appropriate charging cycle on the basis of the battery construction that is input by the user and it also then identifies and estimates certain battery charge related information again on the basis of the battery construction which is then displayed on the display screen on the portable housing. Hence to establish that the claimed invention is obvious, the opponent needs to establish that not only each of the integers is CGK, but also that the combination of these integers would have also been a matter of routine.
Claim 1
120. The opponent submitted that claim 1 would be obvious, given that it was well known to have portable battery boxes with chargers in them and it would have been plain at the priority date to provide a chemistry-select charger in the battery box if the battery box was adapted to use batteries of different chemistries.
121. I have earlier found that battery boxes with built-in battery chargers and display screens on battery boxes were not part of the CGK at the priority date. Consequently claim 1 would not have been obvious to a skilled addressee at the priority date.
Claim 3
122. As discussed earlier, claim 3 does not require the charging apparatus to be in the portable housing. There is also no clear definition of the location of the one or more input selectors, which therefore also need not be within/on the housing. However claim 3 requires that the display screen that can display the measured and estimated charging and/or discharging parameters to be mounted on the lid or walls of the portable housing.
123. Battery boxes without a built-in charging apparatus (such as the Haigh battery box) were CGK at the priority date. The opponent submitted that as multi-chemistry battery chargers with manual selection of battery construction was CGK at the priority date, it would have been obvious to the skilled addressee to use such a multi-chemistry battery charger to charge a battery placed in a Haigh battery box.
124. I have earlier found that multi-chemistry battery chargers with manual selection of battery construction and display screens on battery boxes were not part of the CGK at the priority date. Consequently claim 3 would not have been obvious to a skilled addressee at the priority date.
Claim 20
125. Claim 20 which defines a portable power supply also requires user selection of battery type and a display screen mounted on the lid or walls of the portable housing that can display charge related information based on the selection of the battery type. As these features are not CGK, it follows that this claim is also non-obvious in light of the CGK at the priority date.
Obviousness in light of D1 and CGK
126. The opponent submitted that each of the independent claims is clearly lacking an inventive step over D1. They argued that the use of user select buttons to choose the type/construction of the battery that is received in the portable housing was very much part of the CGK for chemistry-select battery chargers and the skilled addressee would have as a matter of routine replaced the automatic battery type detector of D1 with such user select input buttons.
127. The applicant submitted that firstly the skilled addressee would not have considered D1, even assuming that it had been ascertained, as relevant for solving the stated problems in relation to battery boxes, as D1 is not about battery boxes and secondly even if they had considered it to be relevant, it would not have been obvious to substitute user select buttons for the automatic battery type detector of D1.
Would D1 have been ascertained, understood and regarded as relevant
128. Mr Ke states that D1 is a document that “a skilled person working in the design and development of battery chargers and battery boxes could reasonably be expected to have ascertained, understood and regarded as relevant to the Opposed Application”[10]. However as submitted by the applicant, it appears to be a bare assertion that is not supported by any convincing reasoning. The only basis I could find was the opponent’s argument that the claims do not place any limitation on the size of the battery box.
[10] Ke at [19]
129. Mr Reade states that when he started the design process for the present invention, he reviewed patent databases and searched the internet for competitor products using the term “portable battery box” and he did not come across document D1 and that even if he had, he would not have considered that it contained useful information in addressing the problems with battery boxes.

130. I have identified the problem as one that relates to battery boxes and more particularly to charging batteries of different types/chemistries in battery boxes. D1 as noted earlier is titled “Rechargeable battery system adaptable to a plurality of battery types”. In my view, the PSA searching for a solution to the identified problem of not being able to charge batteries of different types would not have restricted their search to battery boxes but would have looked wider at battery chargers in general. In doing so, they would have ascertained D1 as the title is clearly relevant to this problem. However D1 relates to a portable electronic device, such as a data collection terminal that uses a rechargeable battery pack to provide operational power for the device. While it has a cavity for receiving the rechargeable battery pack, I would not consider such a device as a battery box or a portable housing for housing a battery. Also it is the undisputed view of Mr Reade that the small batteries in D1 would not be affected by Peukert’s law unlike deep cycle batteries and hence any battery charge percentage measurement in D1would not need to take this law into account. In my view, while the PSA would have ascertained D1, they would not have considered this document to be relevant when trying to address the drawbacks with battery boxes that are used for housing batteries for providing power in remote locations.
131. D1 is not therefore part of the prior art base for assessing inventive step.
Is the claimed invention obvious in light of D1
132. Although I have found that D1 is not part of the prior art base, as the parties provided relevant submissions and for the sake of completeness, I will also decide whether the claimed invention would be obvious over D1 and the CGK if it would have been ascertained, understood and regarded as relevant in addressing the stated problem.
133. As discussed earlier, in D1 the chemistry/type of the battery pack is automatically determined by the device by either receiving stored information in the battery pack or by running certain sub-routines and this information is then used to select an appropriate charging cycle. D1 therefore provides a solution to the problem of not being able to charge batteries of different constructions. However it does not disclose user input selection of the battery construction. Any input using the input stylus is not for the purposes of selection of the battery construction.
134. While Mr Ke states that user input selector for multi-chemistry battery chargers was well known, he does not provide any convincing reasons as to why the skilled addressee would want to replace the automatic detection system of D1 with user selection. While he says that he does not consider the manual selection of battery type to be essential to the working of the present invention, I reject that. The specification only describes manual input and there is no teaching at all about automatic detection that could suggest that manual input is not essential to the invention.
135. Mr Reade on the other hand explains why manual user input is important and was chosen for inclusion in the present invention.
“Automatic detection is risky and unsafe since the method relies on measuring voltage over time of the battery. As I say in the section "Background and Common general knowledge", variances between different lead acid battery types and even between manufacturers of the same chemistry of battery can cause an incorrect reading to be made, leading to the wrong conclusion on the battery type, and a consequent possible injury to a user”[11].
[11] Reade at [35]

136. There is no evidence from the opponent that this was a well-known drawback of automatic battery type detectors and that for this reason the skilled addressee would have wanted to substitute the automatic battery detection system of D1 with a manual input selector even though D1 already solves the problem of charging batteries of different chemistries. Furthermore I have also found that user select multi-chemistry battery chargers were not CGK at the priority date.
137. The evidence does not clearly establish that the claimed invention lacks an inventive step in light of D1 and the CGK.
Other Obviousness submissions
138. The opponent also submitted that “it would be obvious to combine the features of known battery boxes (such as found in any of D5, D6, D10 and D11) with known chemistry-select battery charges (such as found in any of D13 to D17) by the simple act of using such apparatus to charge the batteries within such boxes” and that “If necessary, any of these pieces of prior art would have been ascertained, understood and regarded as relevant and combined with the common general knowledge to achieve the same result”[12].
[12] Opponent’s written submissions at [11.8], [11.9]
139. Section 7(3) requires that the information relied on to establish lack of inventive step should be information that the skilled person could, before the priority date of the relevant claim, be reasonably expected to have ascertained, understood, regarded as relevant and where, as in the present case reliance is placed on a combination of 2 or more pieces of prior art information, the skilled person could also be reasonably expected to have combined those 2 or more pieces of prior art information.
140. In opposition proceedings such as these the onus is on the opponent to establish that the documents that they rely on satisfy these requirements of section 7(3). The opponent submitted that the evidence of Mr Ke clearly establishes this.
141. Mr Ye has made a general statement at [19] that each of documents D1-D21 that he has mentioned in his evidence “is a document that I consider a skilled person working in the design and development of battery chargers and battery boxes could reasonably be expected to have ascertained, understood and regarded as relevant to the Opposed Application”.
142. He also states that he and his group of engineers at Shen Dian “routinely consult trade journals, such as the Australian, Automotive Aftermarket Association (AAAA) Magazine, and supplier catalogues”[13]; that he was “regularly exposed to marketing material, including cold calls, pamphlets and emails directed to the componentry of various automotive products, such as battery boxes”[14] and that “Among the main resources I consulted, together with my team of engineers at Shen Dian, since at least 1999 up to the Priority Date were scientific papers and patent specifications, such as those I have already outlined in paragraph 11. I read patent specifications for a number of reasons, but most importantly to keep up with the state of art in the field and to make sure that we were not infringing any existing IP rights”[15].
[13] Ye at [11]
[14] Ye at [11]
[15] Ye at [19]
143. Mr Reade for the applicant also states that “When developing a product, I review patent databases and search the internet for competitor products and discuss the results with my patent attorneys”[16].
[16] Reade at [12]
144. It is therefore clear that both Mr Ke and Mr Reade consult patent data bases when developing a new product. While Mr Reade does not mention trade journals, one would expect that the PSA would also subscribe to popular trade journals and magazines such as the Australian, Automotive Aftermarket Association (AAAA) Magazine mentioned by Mr Ke. It is also highly likely that the PSA would conduct some kind of internet search using keywords relevant to the product.
145. I have earlier discussed the disclosure of each of these documents relied on by the opponent.
146. In relation to Shen Dian’s portable battery packs D6 and D11, I have found that they do not have a housing with a lid to removably receive a battery. Hence these documents are clearly not relevant in terms of combining with chemistry-select battery chargers and can be excluded from further consideration.
147. D5 is a patent document published in August 2009 that relates to Ark’s first generation portable battery box. I am satisfied that the PSA would have ascertained, understood and regarded this document as relevant.
148. D10 is a brief product description of the Haigh Battery box with lid from the Haigh “Product Catalogue 08” where I assume the “08” refers to 2008. Mr Reade admits that this Product had become part of the background technical knowledge before the priority date. Haigh is a well-known Australian company that specialises in Automotive products including battery related products under the brand name Battery Link. I am satisfied that the PSA would have ascertained, understood and regarded this document as relevant.
149. D17 is the product manual of CTEK's MULTI XS 3600 battery charger. There is no publication information on this document. While Mr Ke had made a general statement that this product was available before the priority date he does not provide any further information on when this product and the product manual became available. Due to this lack of information I cannot be satisfied that the PSA could be reasonably expected to have ascertained this document.
150. D13 is a product manual of the Redarc BMS 1215 Smart Start Battery Management system for use in caravans and motor homes that can charge batteries of different chemistries. It includes a main charging unit, a remote monitor and other peripherals such as a current shunt and a battery sensor. The main charging unit is required to be mounted to a solid support close to the battery to be charged. The remote monitor can be mounted in any convenient location insider the caravan or motor home and includes a display screen to display battery and charge information. The user can input the chemistry of the battery to be charged using the remote monitor.
151. There is no information either on this document or from Mr Ke to establish when this product manual was published. The onus lies with the opponent to clearly establish that D13 is a document that (i) was published before the priority date and (ii) the PSA could be reasonably expected to have ascertained, understood and regarded as relevant.

152. As mentioned earlier Mr Ke has stated that this product was available before the priority date but does not provide any further information as to the approximate period it came into the market. The opponent submitted that the three new documents that they produced at the hearing with a request to bring them into the proceedings under regulation 5.23, establish that this product and its manual was available in the market before the priority date. As I have decided to bring these into the proceedings, I will now discuss these documents.
153. Two of these documents are copies of journal articles written by Collyn Rivers, one is titled “Charging – a new approach” published in the journal “The Wanderer” of July 2009 and the other is titled “Battery Management Dramas Solved” published in the journal “Automotive Electrical & Air Conditioning News” of June/July 2009. Both articles discuss a new product called the Redarc Smart Start Battery Management System BMS 1215 that that is stated to be released in July 2009. They briefly discuss the main components of the BMS 1215 and some of the advantages it has in the context of Recreational Vehicles. The author is trialling one of the very first units in his vehicle.
154. The third document is a screenshot from the Wayback Machine Internet Archive of the BMS1215 Manual (D13) according to which the earliest capture of this manual is 16 September 2009.

155. The applicant filed further submissions and also further evidence from Mr Arakelian regarding the new material that I have brought into the proceedings. In his further evidence Mr Arakelian has stated that:
·The Rivers’ articles do not prove the actual release date of the Redarc product as it was not uncommon for products to not be released at their anticipated or publicised date.
·The Rivers’ articles do not refer to the product manual or to its publication date.
·Neither he nor Mr Reade was aware of the Redarc product before the priority date.
·The Redarc product does not relate to a portable battery box and a search for battery boxes would not therefore bring up this document.
·The components of the Redarc product are not suitable for use in a portable battery box as the main charging unit is too large to fit into a portable battery box.
·It discloses disparate charging and monitoring components that are meant for permanent installation all around a caravan and there is no teaching to combine all of these components as part of a portable battery box.

156. The applicant also submitted that the Courts have cautioned against reliance on the Internet Archive on the basis that they are hearsay. In E & J Gallo Winery v Lion Nathan Australia Pty Limited [2008] FCA 934; 77 IPR 69 Flick J stated:
“Nothing is known as to the ‘business’ of the ‘Internet Archive Wayback Machine’ other than the hearsay statement itself that it ‘allows people to visit archived versions of Web sites’. And nothing is known as to the knowledge of the persons who recorded the information”. [127]

“…the reliability of the results of the web search undertaken by Mr Weeks was also open to serious doubt and raised questions as to who it was that recorded the information and how accurately that task was undertaken”. [129]

157. In Shape Shopfitters Pty Ltd v Shape Australia Pty Ltd (No 2) [2017] FCA 474, Mortimer J agreed with the abovementioned comments made by Flick J and stated:
“Snapshots of internet searches on particular dates, all of which are between just under and just over a year after the respondent adopted the name “SHAPE Australia” contribute little by way of proof as to what participants in the commercial construction industry were likely to believe about the commercial relationship between the applicant and the respondent since 26 October 2015, but it is not the kind of evidence the applicant can test as it should be able to”.

158. While the Courts have tended to reject evidence from the Internet Archive on the basis that they are tantamount to hearsay, the Commissioner is not bound by such rules of evidence. I am therefore entitled to rely on any material available to me including material from the Internet Archive, noting however that the probative weight given to any material from the Internet Archive will need to take into account the fact that it is from a source the reliability of which is uncertain.
159. As I noted earlier, there is absolutely no publication details on D13 itself. However the evidence from the Internet Archive certainly suggests that the product manual of D13 was available online from around late September 2013. This date is also consistent with the Rivers journal articles that the BMS 1215 would be available for purchase from July 2013. While Mr Arakelian has submitted that it is not uncommon for new products to be not released on the publicised dated, there is no further evidence to suggest that this was the case in relation to the BMS 1215. I also note that both the Rivers articles include a schematic layout of the BMS 1215 that is identical to the typical setup in figure 2.4.4 of D13 again suggesting that D13 was a published document. Based on all of the material available to me I am satisfied that document D13 was published and became available online from at least the end of September 2013.
160. The question that I still need to answer is whether the PSA could be reasonably expected to have ascertained D13. Although I have found that product manual of D13 was published before the priority date, there is no evidence to show that it was widely circulated or known within the industry. While Mr Ke has stated that the Redarc multi-chemistry battery charger was released in the market before the priority date, he has not clearly stated that he was aware of the product manual of D13, other than the general statement at [19] that I have referred to earlier. The opponent is relying on the product manual of D13 rather than the prior use of the actual product. Mr Arakelian on the other hand has stated that neither he nor Mr Reade was aware of D13 or the Redarc product before the priority date and that the search they conducted in relation to battery boxes did not bring up this document. While I am of the view, that the PSA trying to find a solution to the identified problem would have searched more widely than just battery boxes, there is no evidence to establish that the PSA could have identified D13 in their search. As Mr Ke, Mr Reade and Mr Arakelian are all employees of either the opponent or the applicant, I have no basis to prefer the evidence of Mr Ke to that of Mr Reade and Mr Arakelian. Based on the evidence I cannot be clearly satisfied that the PSA would have ascertained D13. D13 is therefore not s7(3) prior art information for assessing inventive step.
161. Even if D13 would have been ascertained, in my view, it would not have been obvious to combine the teachings of this document with battery boxes disclosed in documents D5 or D10.
162. D13 clearly specifies that the main unit “must be mounted to a solid support, preferably the vehicle chassis” and that it “must not be installed in a location with any less than 10 cm clearance at the top of the Main Unit, to allow for airflow across the heatsink fins”[17]. It further states that main unit should not be mounted vertically or upside down. It is also a fairly sizeable unit that measures 350x185x79 mm. In my view, the size of the unit and the mounting restrictions would not permit the unit to be incorporated in a battery box with a portable housing. I can find no motivation for the PSA to combine the disclosure of D13 with that of D5 or D10.
[17] D13 at 2.2.1
163. D14 is a New Product Release brochure for the Projecta’s Intelli-charge multi-chemistry battery charger with user selection and a remote display. It has the date November 2009 on the front page, which prima facie would suggest that the brochure was published/released sometime in November 2009. Mr Ke has stated that the Projecta product first came onto the market in 2009 and that he became aware of this product from Projecta’s product catalogues. Neither Mr Reade nor Mr Arakelian has disputed the publication date of this document. I am therefore satisfied that this brochure and the actual product became available in November 2009. I am also satisfied that the PSA could be reasonably expected to have ascertained D14 based on Mr Ke’s statement that he found out about the Projecta product through their product catalogue. While D14 does not relate to a portable battery box, it discloses a charger that can charge batteries of different chemistries and furthermore it also has a display screen that allows the user to control and monitor the charger’s performance. I am therefore also satisfied that the PSA would have understood and regarded this document relevant in view of the problems to be addressed.
164. D15 and D16 are product manuals of Shen Dian’s SBC10M and Power Train battery chargers respectively that can charge batteries of different chemistry as selected by a user. No publication details are evident on these manuals. Mr Ke has stated that SBC10M was first marketed in 2007 and the Power Train was first marketed in 2009. As they are both Shen Dian’s own products, Mr Ke would certainly have firsthand knowledge of these two products and when they were released into the market. The applicant has also not disputed this. I am therefore satisfied that these products were publicly available before the priority date. However the opponent is relying on the information in the product manuals of these products and not the prior use of these products. There is no further information from the opponent as to how many of these products were sold before the priority date, whether the manuals accompanied the product or was also available online such that inferences can be drawn as to whether the PSA could be reasonably be expected to have ascertained these manuals when trying to address the problems with battery boxes that I have identified. Based on the evidence I cannot be satisfied that the PSA could be reasonably expected to have ascertained these documents.
Obviousness Considerations
165. The question then is would it have been obvious to the PSA to combine the disclosure of D14 with either D5 or D10 and by doing so would have arrived at the claimed invention. Although the opponent primarily focussed on the Haigh battery box of D10, in my view the more relevant prior art is D5 as it relates to a battery box with a built-in charger whereas D10 is a battery box without a built-in charger. I will therefore restrict my inventive analysis to the combination of D14 and D5. I will now discuss the disclosures of these documents in more detail.
D5 (US 7573229)
166. This US patent is titled “Portable Water Resistant Multi-function Lead-Acid Battery Box” and was published on 11 August 2009. Mr Arakelian is the named inventor of this patent. Figures 1 and 3 of this document are reproduced below:
167. The battery box includes a body 1 with an open top for housing a battery 2, a lid 6 for closing the top. A number of electrical components are housed within the lid. These include a battery recharger/conditioner 20, status indicators in the form of green and red LEDs 24, 25 to indicate whether the whether the charger is in a charging mode or a conditioning mode and a battery charge indicator with a user interface 31 and 4 LEDs. Each of the LEDs corresponds to a particular state of charge of the battery, namely quarter charge, half charge, three quarter charge and full charge. The corresponding LED lights up when the user interface button is pressed. D5 also states that “In some embodiments (not shown), the LEDs are supplemented with indicia on the vertical side of the lid, the indicia indicating the state of battery charge either graphically or
Numerically”.[18]
[18] D5, column, lines 41-44
168. While not admitted in the opposed application, it would appear from Mr Arakelian’s evidence that this prior art battery box is the first generation Arkpak that is mentioned as one of the known models of portable battery boxes in the present application that has some of the drawbacks such as not being able to charge batteries of different chemistries, and not providing enough information about the charging process.
D14: Projecta Intelli-Charge Battery Chargers
169. D14 is a product catalogue of the Projecta Intelli-Charge Battery Chargers. There are a number of models in this range including small and large models. A photograph of two of the models and the LCD display and remote control is reproduced below:
170. D14 discloses on page 5 that Projecta Intelli-Charge battery charger is designed for use with all types of batteries including Gel, AGM, Wet and Calcium and that upon selecting the battery chemistry type, the charger will adjust the charge to precisely match the battery type, extending battery life and improving battery performance. The battery types referred to are clearly deep cycle batteries that Mr Reade identifies as being typically used in battery boxes.
171. It discloses on page 7 that the charger’s performance can be controlled and monitored with the remote control display. From the photograph it can be seen that the remote control has a LCD display screen and four control buttons called “Volts Amps”, “Charge Rate”, “Battery Type” and “Recond”. The “Battery Type” button is clearly for the purposes of the user to input the type of battery that is to be charged. The LCD display appears to show the type of battery (AGM), battery charge level/percentage in the form of a battery image and a reading of 35.0 but it is unclear what this reading indicates. One of the larger models shown in the photograph also has its own display screen and the same four control buttons. While there is no explicit disclosure of a processing system, the fact that the charger is able to use different charging cycles for different battery types and also display charging related information on the LED display clearly requires the use of a processing system.
172. D14 clearly provides solutions to both the problems that I have earlier identified in that the battery charger can charge batteries of different chemistries and the LCD display screen can provide additional useful information in respect of the charging process.
Is the invention obvious?
173. The question is whether the PSA having ascertained D5 and D14 would have been led to combine the disclosures of these two documents and in doing so would have been directly led to the claimed invention.
174. While Mr Ke has not specifically addressed the combination of D5 and D14, he is of the view that it would have been a matter of routine to combine documents disclosing battery boxes with documents disclosing multi-chemistry battery chargers.
“In my opinion, the chemistry-select battery chargers of D13 to D17 disclose all of the features of Claim 1 with the possible exception of the feature of "a housing for receiving a battery for removable mounting therein and a lid for closing the housing". Nonetheless, I consider it would have been routine for the skilled person to include the features of such chemistry-select battery chargers together with a housing for receiving a battery to be charged, particularly given that, as mentioned previously, battery boxes, and in particular those including charging circuitry, were well known in the art at the Priority Date”[19].
[19] Ke at [117]

“I consider it a routine step for the skilled person to combine known battery boxes, such as those disclosed in D5, D6, D10 and D11, together with a chemistry-select battery charger, such as D13 to D17, whichw were well known in the art at the Priority Date, to arrive at the invention of Claim 1”[20].
[20] Ke at [120]

175. The applicant did not provide any submissions as to why it would not have been obvious to combine the teachings of D14 with D5 other than Mr Reade’s statement that D14 does not relate to battery boxes and that this document would not have been ascertained. I have already rejected that argument and found that D14 would have been ascertained. As it clearly relates to the problems identified, the PSA would also have considered it highly relevant.
176. Having ascertained both D5 and D14, in my view, it would have been straightforward for the PSA to realise that the battery charger housed within the battery box of D5 could be replaced with a multi-chemistry charger disclosed in D14 in order to charge batteries of different types in the one battery box. D14, unlike D13, does not place any restrictions on the mounting of the charging unit and would therefore be suitable for incorporating within a portable housing of a battery box.
177. D5 also discloses that the lid is provided with battery charge indicators in the form of LEDs and that this can be supplemented with indicia that indicate the state of charge graphically or numerically. D14 discloses a display screen in the battery charger itself as well as in a remote control that can display information in relation to the type of battery that is input by the user and information relating to the charging process including voltage/current, the charging rate and level of battery charge. It would also therefore have been a matter of routine for the PSA to incorporate such a display instead of the LEDs and the numerical display of D5 in order to provide further useful information. Such a requirement to provide this further information would also become necessary when the charger is a multi-chemistry charger that uses different charging cycles for different battery types. While there is no explicit disclosure in D14 that the information provided on the display screen will differ depending on the type of battery, in my view it is implicit given the different charging cycles required. While claim 1 defines different messages in a group, as the opponent submitted it only requires that the display screen displays information relating to at least one of the different parameters in the group. Both D5 and D14 display information about the battery charge levels/percentage.
178. While the applicant submitted that the inventors were not confident that including a display screen on the portable battery box was worthwhile (in light of Peukert’s law) or that by doing so they could design the dimensions of the battery box so as to still remain portable, I am not convinced that these would have been reasons for not combining these two documents. While Mr Reade talks about the Peukert effect, the specification itself make no mention of this effect. In any event as D14 relates to deep cycle batteries, its processing system would need to take into account Peukert’s law (which was part of the CGK) when estimating battery charge percentage. It is also clear that the display screen of D14 is fairly compact and could be quite easily incorporated in the lid or walls of the battery box of D5. I also note that there is nothing in the specification that suggests that in incorporating a multi-chemistry charger and a display screen in the battery box, there were any practical difficulties that had to be overcome.
179. I am satisfied that claim 1 lacks an inventive step in light of the combined disclosure of documents D5 and D14.
180. Independent claim 3 also lacks an inventive in light of these documents as the display is able to display at least battery voltage and battery charge percentage. I also note that this claim does not require the battery charger to be a component of the battery box.
181. Independent claim 20 has similar features to the other two independent claims but in addition requires an inverter for providing alternating current from the battery. The use of inverters to provide alternating current from a battery is CGK and where there was a need to provide an alternating current from the battery box, it would have been a matter of routine to include an inverter. This claim also therefore lacks an inventive step.
182. In relation to the dependent claims, the opponent submitted that these simply add well known and desirable features to a battery box with a multi-chemistry charger and that therefore these claims also are lacking an inventive step. I will now look at each of these claims.
183. Claim 2 specifies a group of battery types that are all disclosed in D14. This claim therefore lacks an inventive step.
184. Claim 4 recites that the estimating step includes consulting a voltage map for a relevant battery type. Mr Ke has stated that this feature was well known at the priority date and that as an example the processors in the Shen Dian chemistry-select battery chargers of D15 and D16 also included reference data with respect to battery voltage and state of charge for different types of batteries. Neither Mr Reade or Mr Arakelian have disputed this. I am therefore satisfied that this feature was CGK and therefore claim 4 lacks an inventive step.
185. Claim 5 that depends from claim 4 recites that the estimating step includes calculating the charge or discharge time remaining from an alogorithm which utilizes the battery charge percentage values from the voltage maps. Again Mr Ke is of the view that this feature was CGK and this has not been disputed by Mr Reade or Mr Arakelian. I am therefore satisfied that this feature was CGK and therefore claim 5 lacks an inventive step.

186. Claim 6 depends from claim 1 and recites that the battery box includes user input buttons on the wall or lid of the housing. D5 has a user interface button on the lid of the battery box. It would therefore been a matter of routine to put the input buttons for the user input selector also on the lid of the housing. Claim 6 therefore lacks an inventive step
187. Claim 7 defines the provision of a USB port and Mr Ke’s undisputed view is that this was CGK at the priority date. Claim 7 therefore lacks an inventive step.
188. Claim 8 recites that the battery box includes a DC to AC inverter or a 110V general power outlet. Claim 9 further recites that this inverter is removably mounted in the housing. Claims 10-12 further recite that the general power outlet is mounted on one of the walls or lid and recessed therefrom, provided with an access cover that extends over the top wall to an adjacent side wall and is hinged to the top wall. Mr Ke’s undisputed view is that these features were either CGK at the priority date or a mere design choice. I agree that the provision of an inverter and a general power outlet of specified voltage would be a matter of routine. D5 also discloses external battery terminals 8, 9 that are recessed 12, 13 and provided with access covers 14, 15. Doing something similar for the general power outlet would be a matter of routine. The shape of the access cover and the location of the hinge would certainly be matters of design choice. Claims 8-12 therefore lack an inventive step.
189. Claim 13 depends from claim 1 and recites that the user input buttons are configured to select the battery capacity in Ampere hours for input into the processing system. Mr Ke is of the view that this feature was CGK at the priority date, but I have earlier found that multi-chemistry chargers were not CGK at the priority date. However this feature appears to be disclosed in D14 as it has a button for adjusting charge rate and it states on page 6 that “Intelli-Charge allows you to adjust and select the charge rate from as low as 2 Amps to best suit the size of your batteries”. This claim therefore lacks an inventive step.
190. Claim 14 depends from claim 1 and recites that the battery box includes a pair of handles recessed into respective end walls. While D5 discloses a recessed handle on the top of the lid, putting recessed handles on the end walls would be a design choice and a matter of routine. This claim therefore lacks an inventive step.
191. Claim 15 depends from claim 1 and recites that the battery box further includes at least one DC Anderson plug in electrical connection with the battery. Mr Ke’s undisputed view is that these plugs were either CGK at the priority date and that it would be obvious to incorporate one in the battery box. This claim therefore lacks an inventive step.
192. Claim 16 depends from claim 3 and recites that the receiving step includes receiving battery capacity in Ampere hours and the estimating step includes estimating the time remaining to charge completion or time remaining to discharge completion. Mr Ke’s undisputed view is that such features were well known at the priority date. Also as I noted earlier, D14 can adjust the charge rate based on the amperage of the battery. Furthermore the equation given in page 15 of the opposed specification would appear to be a standard equation for estimating the time remaining to charge completion. I am satisfied that claim 16 lacks an inventive step.
193. Claim 17 depends from claim 3 and recites that the estimating step involves consulting relevant storage maps stored in the processor. This feature is similar to that recited in claim 4 which I have found lacks an inventive step. It follows that claim 17 also therefore lacks an inventive step.
194. Claim 18 depends from claim 3 and recites that the receiving step is conducted via at least one user input button in electrical communication with the computing processor. This feature is disclosed in D14. Claim 18 therefore lacks an inventive step.
195. Claim 19 depends from claim 3 and recites that the method includes the further step of measuring temperature of the charger and stopping charging if the measured temperature exceeds a cutout temperature. Again it is Mr Ke’s undisputed view that such features were well known at the priority date. While D14 does not explicitly disclose stopping charging, it includes the feature of measuring temperature and adjusts the charger’s output to prevent overcharging. I am satisfied that incorporating this claimed feature would have been a matter of routine. This claim therefore lacks an inventive step.
196. Claim 21 depends from claim 20 and recites that the power supply includes one or more AC power outlets electrically connected to the inverter. Mr Ke’s undisputed view is that such a feature was CGK at the priority date. This claim therefore lacks an inventive step.
197. Claim 22 depends from claim 20 and recites that the power supply includes one or more user input selectors to operate the display. This feature is disclosed in D14. This claim therefore lacks an inventive step.
198. Claim 23 depends from claim 3 and recites the different types of batteries that can be charged. These types are disclosed in D14. This claim therefore lacks an inventive step.
Conclusion on inventive step
199. All of the claims lack an inventive step when the disclosures of documents D5 and D14 are combined.
CONCLUSION
200. The opposition is successful. Claims 3 and 20 are not fairly based. All the claims lack an inventive step in light of the combined disclosure of documents D5 and D14.
201. Although all the claims are lacking an inventive step, there may well be novel and inventive subject matter in the specification. I therefore allow the applicant a period of 2 months from the date of this decision to propose amendments that overcome the deficiencies that I have identified.
COSTS
202. Both parties have requested the award of costs. As the opposition is successful, I award costs according to schedule 8 against the applicant.
R Subbarayan
Delegate of the Commissioner of Patents