Siemens Industry, Inc. - [2017] APO 53

IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Siemens Industry, Inc. [2017] APO 53

Patent Application: 2015203296

Title:Method and Apparatus for Bi-Directional Downstream Adjacent Crossing Signalling

Patent Applicant:                   Siemens Industry, Inc.
Delegate:  M. G. Kraefft
Decision Date:  25 October 2017
Hearing Date:  27 September 2017, in Melbourne

Catchwords: PATENTS – examiner’s objection – whether claimed invention has inventive step – determining at one railway crossing predictor whether to transmit warning signal to second crossing based at least in part on signal indicative of whether second crossing predictor has detected presence of a train – claimed invention has inventive step – claims not supported by matter disclosed in specification – opportunity to amend available.

Representation: Counsel for the applicant: Mr Andrew Fox.
Patent attorney for the applicant: Mr Scott Sonnerman, AJ Park.

IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Patent Application: 2015203296

Title:Method and Apparatus for Bi-Directional Downstream Adjacent Crossing Signalling

Patent Applicant: Siemens Industry, Inc.
Date of Decision: 25 October 2017
DECISION
The inventive step objection has not been made out. On the other hand, the claims are not presently supported by matter disclosed in the specification, thus offending against subsection 40(3).
There may be patentable subject matter in the specification from which valid claims may be drafted by amendment under Section 104. Under sub-regulation 13.4(1)(g), the applicant is allowed three (3) months from the date of this decision to obtain acceptance of the application.
REASONS FOR DECISION
BACKGROUND

Siemens Industry, Inc (“the applicant”) filed patent application 2015203296 on 17 June 2015. The application is a divisional application based on application 2010315553. The latter application is based on US application 61/272726. The earliest claimed priority date is 27 October 2009.
The present application has been subjected to five examination reports. The remaining objection from the examination reports is that the claims do not involve an inventive step.
Following the fifth examination report, the applicant requested to be heard. Also at the request of the applicant, the hearing was conducted orally.
While the final date for acceptance of the application was 18 August 2017, patent sub-regulation 13.4(1)(g) may be available in the present case to extend the time to 3 months from the date of the present decision.
SPECIFICATION
In the background section, the specification describes a crossing predictor as an electronic device which is connected to the rails of a railroad track and is configured to detect the presence of an approaching train and determine its speed and distance from a crossing. The crossing predictor uses this information to generate a constant warning time signal for control of a crossing warning device. Examples of crossing warning devices in the specification are crossing gate arms, crossing lights and/or crossing bells or other audio alarm devices.
Trains may be expected to move in both directions along a track. In such situations, a shunt may be placed at the desired approach distance on both sides of a crossing. Crossing predictors typically detect a train on either side of the crossing, but do not have the ability to determine the direction of travel of a train or distinguish a train on one side of the crossing from one on the other side. Such crossing predictors may be referred to as bidirectional crossing predictors.
Moreover, two or more crossings may be located within a desired approach distance of each other. To prevent the signals transmitted by one crossing predictor from interfering with another crossing predictor in such situations, the crossing predictors are often configured to transmit on different frequencies. When the number of adjacent crossings gets larger though, a problem can occur. A certain amount of separation between transmitted frequencies is necessary to ensure that a crossing predictor can reliably discriminate between its frequency and an adjacent frequency, and the maximum distance at which a train may be reliably detected is inversely proportional to the transmission frequency. Thus, only a certain number of unique frequencies at which the crossing predictors may transmit are available.
To address such situations, techniques have been devised for using a crossing predictor to detect and predict the arrival of a train at a downstream crossing and transmit a constant warning time signal to a device at the downstream crossing accordingly. Such prediction and signalling may be referred to as “DAXing” where “DAX” is an acronym for “downstream adjacent crossing”. The specification states that those of skill in the art will recognise that, for tracks on which trains may move in either direction, DAXing may be desired when a train moves in one direction but not in the other direction. For example, on a track running in an east-west direction, it is desirable for a crossing predictor at a first crossing to DAX a second device at a nearby second crossing located to the east of the first crossing if a train is approaching the first crossing from the west. It would be undesirable to have the crossing predictor at the first crossing DAX the device at the second crossing if the train were approaching the first crossing from the east.
In situations in which three or more crossings are closely located and a sufficient number of unique transmission frequencies are not available, the specification states that it has been known to configure outer crossing predictors to DAX the inner crossing predictors, and sometimes also to DAX the downstream outer predictor. Since bidirectional crossing predictors cannot determine from which side of a crossing a train is approaching and because it is desirable for an outer crossing predictor to DAX an inner crossing predictor only when the inner crossing predictor is downstream with respect to the direction in which a train is travelling, the outer predictors are made to act as unidirectional predictors by placing an insulated track joint at the location of the outer predictor. The insulated track joint only allows the transmitted signal to propagate in one direction along the track. The crossing predictor will employ two circuits, one on each side of the insulated joint, with each circuit therefore detecting trains on only one side of the crossing. The crossing predictor is equipped with logic that can determine whether the train in one circuit has previously been seen by the other circuit and therefore can DAX in only the desired direction.
The use of insulated track joints to accommodate crossing predictors is costly, both in terms of installation and maintenance, and in the need for additional changes to installed signalling systems.
The specification, as presently proposed to be amended, contains twenty (20) claims. Claims 1 and 17 are independent claims. These claims are recited below.
1.A method for operating a crossing predictor, the method comprising:
detecting at a first crossing predictor the presence of a train in an approach, the first crossing predictor being located at a first crossing;
receiving at the first crossing predictor a first signal indicating whether a second crossing predictor spaced apart from the first crossing predictor has detected the presence of a train; and
determining at the first crossing predictor whether to transmit a constant warning time signal to a device located at a second crossing based at least in part on the first signal.
17. A first crossing predictor comprising:
a control unit;
a first port connected to the control unit, the first port being operable to receive a first signal from a second crossing predictor that is spaced apart from the first crossing predictor, the first signal indicating whether the second crossing predictor has detected a train in an approach of the second crossing predictor;
a second port connected to the control unit, the second port being operable to transmit a constant warning time signal to a device located at a second crossing;
a receiver connected to and under control of the control unit and being operable to receive a second signal;
wherein the control unit is adapted to detect the presence of a train in an approach based on a characteristic of the second signal and determine whether to transmit the constant warning time signal via the second port based at least in part on the first signal.
One may envisage several scenarios within the scope of the above claims. While accepting that the subject of the claims is a method for operating a crossing predictor, and a first crossing predictor, respectively, the body of the claims then somewhat loosely defines associated relationships of that predictor with other external elements, for controlling another crossing.
In respect to claim 1 for example, the correlation of the first and second crossing predictors with the location or control of the first and second crossings is rather open. For instance the first and second crossing predictors may both be predictors for the same crossing. Alternatively, the single first crossing predictor may be a predictor and/or controller, at least partially, for both the first and second crossings. The only limitations in respect to correlation between the elements are that the first crossing predictor is located at the first crossing, and that the first crossing predictor, through at least in part the first signal, determines whether to transmit a warning signal to the second crossing.
It may also be noted that claim 1 does not define any consequence or action arising from the first crossing predictor detecting the presence of a train in an approach, either at the first crossing or elsewhere. At the hearing, the applicant suggested that the claimed determination that was based at least in part on the first signal meant the determination was based on the first signal and some other feature. In the context of claim 1 as a whole, the applicant suggested the other feature on which the determination was based was the detection at the first crossing predictor, at least by inference. Subsequently the applicant accepted that the phrase “based at least in part on the first signal” included in scope a determination based wholly on the first signal. While the applicant’s intent may be to base determination, of whether to transmit a warning signal, on the first signal and on detection at the first crossing predictor of the presence of a train, claim 1 is wholly silent in respect to determination based on the latter.
In summary, the first crossing predictor may simply be viewed as a remote controller acting only on the first signal, indicating whether a second crossing predictor spaced apart from the first crossing predictor has detected a train, to determine whether to control the second crossing.
A similar variety of alternatives, as for claim 1, may be envisaged for claim 17. I would firstly note that claim 1 does not specify the first signal coming from the second crossing predictor but more broadly indicating whether the second crossing predictor has detected a train. In claim 17, the first port is clearly operable to receive the first signal from the second crossing predictor. The latter claim also defines a little more detail in respect to the control unit of the first crossing predictor being adapted to detect the presence of a train in an approach based on a received second signal and determine whether to transmit a warning signal to the second crossing based at least in part on the first signal from the second crossing predictor. On the other hand, there is no definition of what approach the second signal signifies nor is there any consequence, action or determination made by the control unit or any other device in respect to the second signal. Moreover there is no association, by location or by control, of the first crossing predictor with any first crossing. In a similar way to claim 1, the crossing predictor of claim 17 may simply be viewed as a remote controller acting only on the first signal from the second crossing predictor to determine whether to control the second crossing.
APPLICABLE LAW
As mentioned above, the application was made on 17 June 2015. As a consequence, substantive amendments to the Patents Act 1990 brought about by the Intellectual Property Laws Amendment (Raising the Bar) Act 2012, effective 15 April 2013, apply in the present case.
Thus the standard of proof that applies to the examination of the present application is the balance of probabilities (Section 49 of the Patents Act). I must accept the application if satisfied on the balance of probabilities that the application complies with the Act. If I am not so satisfied then I can refuse the application.
Section 18 of the Patents Act 1990 relates to patentable inventions. An extract of subsection (1) appears below.
(1)Subject to subsection (2), an invention is a patentable invention for the purposes of a standard patent if the invention, so far as claimed in any claim:
(a) is a manner of manufacture within the meaning of section 6 of the Statute of Monopolies; and
(b) when compared with the prior art base as it existed before the priority date of that claim:
(i)is novel; and
(ii)involves an inventive step; and ….
Section 40 relates to the requirements of specifications. In respect to the claims in the present case, subsection (3), as recited below, may be pertinent.
(3)The claim or claims must be clear and succinct and supported by matter disclosed in the specification.
EXAMINATION REPORTS
The examination reports have maintained an inventive step objection throughout the examination stages. In the most recent report, the examiner has maintained that the present claims 1-20 do not involve an inventive step compared to US Patent 3422262 to Brockman (“D2”) combined with common general knowledge in the art. Figure 1 of D2 is reproduced below for ease of reference.
In a similar vein to the scenarios discussed above for the present claims, the examiner explained the relevance of D2 against the claimed invention by equating the presently defined crossing predictors to D2 in the following way.
“First crossing predictor: Fig. 1 (right side, associated with highway B) in the form of the combination of transmitter F2(2) (sic), signal SB, interlocking equipment (25), line receivers F2 (24 and 22), and track receivers F1 (13) and F2 (23).
Second crossing predictor: Fig. 1 (left side, associated with highway A) in the form of the combination of transmitter F1(1) (sic), signal SA, interlocking equipment (15), line receivers F1 (14 and 12), and track receivers F1(11) and F2(21).
D2 further discloses that the first crossing predictor receives a first signal indicating whether a second crossing predictor has detected the presence of a train as follows:
Col. 4 lines 16-32:
‘The line wires 4 are extended from crossing A to crossing B, and the line wires 6 are extended a suitable distance to the right to reach the entrance to the approach section for the highway B. The Track Receiver 23 is connected across the track rails 2 with its output connected across the line wires 6. At the other side of highway crossing B the approach section extends beyond the highway A. The Track Receiver 21 is connected across the track rails 2 at the appropriate approach point with its output connected to the line wires 4. The Line Receivers 22 and 24 are connected respectively to the line wires 4 and line wires 6, and supply their respective outputs to the associated interlocking equipment 25, which also receives an input from the island 30 (sic) apparatus 26. The interlocking equipment 25 controls the signals SB for the highway B in the usual way described above for highway A.’
There is clearly connectivity between wiring linking the crossing predictors. There is no reason why a signal sent by one will not be capable of being received by the other.”
Further in the examiner’s report:
“Transmitting a constant warning time signal at operating crossing predictors is considered to be common general knowledge (and well known) before the priority date of the instant application, as demonstrated by for example D4 which discloses at the abstract for example:
‘… a communication system for providing relatively constant warning time at a rail grade crossing for trains with prediction of the approach of a train from a remote controller via rail-based communications to a crossing controller…’, involving generating signals when a prediction occurs.”
SUBMISSIONS
In respect to D2, the applicant submitted that a crossing predictor A associated with highway A and a crossing predictor B associated with highway B operate on different frequencies F1 and F2, and so operate autonomously and independently relative to one another. In relation to crossing predictor A, a single frequency F1 is applied through transmitter 10 at highway crossing A and is transmitted in each direction away from highway A along the tracks 2. At the extreme end of each section, a track receiver 11, 13 responds to such frequency F1 and transfers it to a pair of line wires 4, 6 extending back to highway crossing A. The applicant further suggested that a person skilled in the art would understand that crossing predictor A is able to determine whether a train is moving towards or away from the respective crossing without reference to, and independently of, the crossing predictor B.
The applicant described crossing predictor B operating in substantially the same way at frequency F2. By the use of different signals at individual frequencies, this principle can be extended in D2 to several different highway crossings which all operate at different frequencies.
The applicant submitted that nowhere does D2 contemplate communication between crossing predictors A and B, such as via line wires 4 and 6. More specifically, due to the use of specific frequencies in D2, there is no communication between line receivers 12 and 14 and line receivers 22 and 24. The two crossing predictors in D2 work entirely autonomously and independently.
The applicant accepted that the common general knowledge included the following. Firstly, the detection at a first crossing predictor, located at a first crossing, of the presence of a train in an approach. Secondly, there was the transmission of constant warning time signals at operating crossings.
In response to the examiner’s contentions, the applicant submitted that D2 should be read as a person skilled in the art would. The consideration is to determine what information D2 would convey to the person skilled in the art. The applicant stated that D2 did not convey to a person skilled in the relevant art that crossing predictor B, operating at frequency F2, included track receiver 13, operating at frequency F1. The applicant believed that this was not a reasonable or common-sense approach of the highway crossing control systems disclosed in D2. Rather, the transmission and receiver componentry, operating at the same distinct frequency, plus the associated interlocking equipment connected to the receiver componentry and the island apparatus together constituted a crossing predictor in D2. The same point applied in respect to crossing predictor A, operating at frequency F1, and track receiver 21, operating at frequency F2.
Furthermore, the applicant stated that D2 did not convey to a person skilled in the relevant art that a signal sent by crossing predictor A (frequency F1) was capable of being received by crossing predictor B (frequency F2). The applicant submitted that a purposive construction would convey that receiving necessitated using a receiver for its technical purpose to obtain information carried by a signal. Thus, a signal of frequency F1 in D2 cannot be received by a receiver which is tuned to a different frequency F2. The applicant cited a passage from D2 in support. At column 3, lines 55-66:-
“Each track receiver, such as 11, is tuned rather sharply to transfer its particular carrier frequency F1 to the line wires 4 which carry such frequency back to the highway crossing A where it is received by the line receiver 12. Such line receiver 12 is also tuned rather sharply to its particular carrier frequency F1, and includes suitable amplifying and demodulating apparatus. Such demodulating apparatus provides an output to the interlocking equipment only if the modulating frequency allotted to carrier frequency F1 is present. The same operation is of course true of track receiver 13 and line receiver 14 as controlled over line wires 6.”

Moreover, the applicant submitted that the fact that communication is transmitted via only two pairs of wire lines 4 and 6 in D2 says nothing about which components communicate with each other. For such communication, not only is transmission required but also reception. In D2, the reception is frequency dependent. No communication is established between circuits operating under different frequencies.
Additionally the applicant stated that nowhere does D2, or the common general knowledge, teach or suggest determining at the first crossing predictor whether to transmit a constant warning time signal to a device located at a second crossing based at least in part on the signal that has indicated whether a second crossing predictor, spaced apart from the first, has detected a train.
The applicant also noted the invention’s savings in installation and maintenance costs by avoiding the use of insulated track joints ([010] of the specification). On this point, the applicant cited the decision in Zetco Pty Ltd v Austworld Commodities Pty Ltd (No 2), [2011] FCA 848. That case related to plumbing fittings used to connect instantaneous gas operated water heaters to a gas and water supply. At [33] of the Zetco decision, Bennett J stated:-
“The background of the invention says that, hitherto, a number of individual fittings had been required to interconnect the pipe supplying water and gas to the meter. The invention is intended to simplify such an arrangement, inter alia, to enable it to be more quickly and easily installed or removed. In the preferred embodiment of the invention in Fig 3, only a single fitting is required to effect the coupling. This fitting is in the form of a valve described and claimed as having a pipe coupling at the inlet and a nut and tail outlet. The valve has a quasi-sphere. The specification describes the valve as ‘having’ each of these, not just the quasi-sphere.” (emphasis in the original)
Moreover at [181]:-
“… a fair reading of the claim in the context of the specification requires the valve to be in one piece; claim 1 is to a prefabricated valve encompassing the nut and tail component. A unit that is made up of different parts screwed together by a plumber is not the combination claimed.”
Finally at [229]:-
“In the present case, as is apparent from the specification of the Patent and the evidence, the key part of the inventive step was the idea of the combination in a single valve. It is not to the point that the idea was simple or that it did or did not come easily to the inventor. …. As the High Court said in Lockwood Security Products Pty Ltd v Doric Products Pty Ltd (No 2) [2007] HCA 21; (2007) 235 CLR 173 at [60] and [111], an idea of combining integers may be simple but may still involve an act of insight that means that the combination is not obvious. While the analysis of problem/solution may be of assistance in resolving questions of obviousness, there may, as is the case here, be no recognised problem. Plumbers were able to connect hot water systems using existing valves and connectors. However, Mr Scott Michaels recognised the advantages of a single manufactured valve that would enable the connection to occur faster, with fewer manual connections and with less chance of leakage.”
The applicant summarised the Zetco case by noting that the individual components all previously existed, they were now combined together into a single unit, the combination saved on installation costs and that an inventive step was recognised. In referring to a claimed combination and the savings in installation costs, the applicant thus stated the Zetco case was similar to the present case.
INVENTIVE STEP
Subsection 7(2) of the Patents Act states that an invention is taken to involve an inventive step unless it would have been obvious to a person skilled in the relevant art in the light of the common general knowledge as it existed before the priority date of the relevant claim, whether that knowledge is considered separately or together with information mentioned in subsection (3).
Subsection 7(3) states the information for the purposes of subsection (2) is any single piece of prior art information, or a combination of any 2 or more pieces of prior art information that the skilled person mentioned in subsection (2) could, before the priority date, be reasonably expected to have combined.
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."
The High Court in Aktiebolaget Hässle v Alphapharm Pty Ltd, [2002] HCA 59, (2002) 56 IPR 129 at [50] – [53], appeared to approve of the Wellcome test. In discussing what was meant by a matter of routine the High Court noted and accepted an affinity with the approach in Olin Mathieson Chemical Corporation v Biorex Laboratories Ltd, (1970) 87 RPC 157, of whether the person skilled in the art would directly be led as a matter of course to try what was claimed in the expectation that it might well produce a useful alternative.
In AstraZeneca AB v Apotex Pty Ltd, [2014] FCAFC 99, the court held at [203] that in formulating the problem it is not permissible to incorporate information that is not available to the person skilled in the art either as common general knowledge or information available under subsection 7(3).
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 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 by Alphapharm to be obvious, bearing in mind that the selection of the integers in which the invention lies can be expected to be a process necessarily involving rejection of other possible integers.”
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 applicant and the examiner did not appear to present positions on the nature of the person skilled in the present art. The closest to a position may perhaps be derived from the examiner’s third report. In that report and with reference to D2, the examiner stated that a person skilled in the art would recognise the feasibility or potential of communication between two crossings in the extension of wires between them.
In the absence of any particular views, I would consider the person skilled in the present art would be one versed in railway crossing prediction, signalling and control systems. Such a person may for example be a signalling, rail transportation and/or railway crossing control engineer.
Common General Knowledge
As mentioned earlier, the applicant accepted that the common general knowledge included the following. Firstly, the detection at a first crossing predictor, located at a first crossing, of the presence of a train in an approach. Secondly, there was the transmission of constant warning time signals at operating crossings. I accept these would have been items of common general knowledge at the relevant time.
Whether There is an Inventive Step
US 3422262 (“D2”)
D2 discloses a railway crossing signal control system. Referring to Figure 1 of D2 above, two highways A and B cross a track 2 and are located relatively close together. Each of the highways A and B is provided with suitable highway crossing signals SA and SB.
Highway crossing A has associated therewith a transmitter 10 which has its output connected across the track rails 2 on opposite sides of the crossing through a capacitor CA1. Transmitter 10 transmits a suitable carrier frequency F1 modulated by a suitable lower frequency. Track receivers 11 and 13 are connected across track rails 2 and are tuned to transfer their carrier frequency F1 to line wires 4 and 6 which carry such frequency back to highway crossing A where it is received by line receivers 12 and 14. These line receivers supply outputs to interlocking equipment 15 which, together with the island apparatus, controls the crossing signals SA. In operation, the approach of a train from either direction acts to release the line receiver for the corresponding direction and set the signals SA into operation. The signal control is removed when the train has passed highway crossing A as detected by the island track circuit apparatus.
Similarly, highway crossing B has associated therewith a transmitter 20 connected across the track rails 2 on opposite sides of the highway crossing B through a capacitor CB1. Transmitter 20 transmits at a different carrier frequency F2 suitably modulated at a selected lower frequency. Track receivers 21 and 23 are connected across track rails 2, tuned to carrier frequency F2 and with their outputs connected to line wires 4 and 6 respectively. Line receivers 22 and 24 are connected respectively to line wires 4 and 6, and supply their outputs to interlocking equipment 25 which also receives input from island apparatus 26. The interlocking equipment 25 thus controls the signals SB for highway B.
The applicant submitted that, in D2, a crossing predictor A associated with highway A and a crossing predictor B associated with highway B operate on different frequencies F1 and F2, and so operate autonomously and independently relative to one another. That is, each crossing predictor is made up directly of those components tuned to the respective frequencies F1 or F2. As noted earlier though, the scope of the claims allows several scenarios.
One approach could be the examiner’s approach that the apparatus on the right hand side of Figure 1 of D2 may be viewed as a first crossing predictor associated with a first crossing and the apparatus on the left hand side as a second crossing predictor associated with a second crossing. A train may be detected at the first crossing predictor by track receivers 13 and 23 with both being located at the first crossing. Track receivers 13 and 23 have their outputs connected across line wires 6. Similarly, track receivers 11 and 21 of the second crossing predictor have their outputs connected across line wires 4. Line wires 4 and 6 clearly extend across both crossing predictors. Under this approach, the first crossing predictor may thus receive a first signal at carrier frequency F2 from track receiver 21 of the second crossing predictor to line receiver 22 of the first crossing predictor indicating whether the second crossing predictor, spaced apart from the first crossing predictor, has detected the presence of a train. Consequently D2 may be said to anticipate at least the detecting and receiving steps of claim 1. On the other hand, I need to determine whether the examiner’s approach is appropriate in the present case.
The applicant submitted that D2 should be read in the light of the body of the specification of D2 and as a person skilled in the art would read the document. The General Tire & Rubber Company v The Firestone Tyre and Rubber Company Limited decision, [1972] RPC 457 at 485, put the position as follows:-
“The earlier publication and the patentee’s claim must each be construed as they would be at the respective relevant dates by a reader skilled in the art to which they relate having regard to the state of knowledge in such art at the relevant date.”
The examiner’s position in respect to D2 was to assign the elements of Figure 1 of D2 as components of either the first or the second crossing predictors, based on relative location only and not on function. In particular the components in the right-hand half of Figure 1 were assigned to the first crossing predictor while the components in the left-hand half of Figure 1 were assigned to the second crossing predictor. On the other hand, D2 clearly describes the tuning of each track receiver to transfer its particular carrier frequency where it is received by a particular line receiver tuned to the same carrier frequency. For instance, at column 3 lines 55-65 of D2, track receiver 11 is tuned to transfer its particular carrier frequency F1 to line wires 4 which carry such frequency back to highway crossing A where it is received by line receiver 12. Such line receiver 12 is also tuned to its particular carrier frequency F1. That is, while line wires 4 may carry multiple signals between multiple components, the individual communications are between specific components tuned to the same carrier frequency. To my mind, it would be more appropriate for a person skilled in the art of railway crossing prediction, signalling and control systems to group components on the basis of the carrier frequency they use as the components on different carrier frequencies do not interact in any way. As such, it would be more likely than not that the person skilled in the art would consider the transmitter, track receivers and line receivers tuned to carrier frequency F1 to be components of a first crossing predictor in D2 while the transmitter, track receivers and line receivers tuned to carrier frequency F2 would be components of a second crossing predictor. On this basis I think a reader of D2 skilled in the present art would not have read D2 in the way the examiner has read the document. I find D2 does not disclose an interrelationship between first and second crossing predictors in the way the examiner has construed D2. It thus follows that I find that D2 at best merely discloses one claimed feature of the present case, that being the adaptability of the first crossing predictor to detect the presence of a train in an approach. On this reading of D2, the features of a first crossing predictor receiving a signal indicative of a second crossing predictor detecting a train and determining whether to transmit warning signals on that basis are not disclosed in D2, nor did they appear obvious as a combination at the relevant time on the material before me. I would find the claimed invention has an inventive step over D2.
If I accepted the examiner’s approach, such that D2 may be said to anticipate at least the detecting and receiving features of the claimed invention, then the following discussion would appear pertinent. In terms of highway crossing control and based on line receiver and island apparatus inputs, interlocking devices 15 and 25 are devices for determining whether to transmit warning signals to highway crossing signals SA and SB, respectively. Notably, there is no connectivity between interlocking equipment 25 of the first crossing predictor to enable transmission of a warning signal to the second crossing signals SA. Similarly there is no connectivity between interlocking equipment 15 of the second crossing predictor and highway crossing signals SB. D2 does not disclose the claimed feature in both the present claims 1 and 17 of determining at the first predictor whether to transmit warning signals to a second crossing.
It is again notable that the two crossings in D2 are controlled by apparatus operating on two different carrier frequencies. Thus, while there may be connectivity through the line wires 4 and 6 between both crossing predictors, it is also clear that the line receivers for each crossing predictor are tuned to different frequencies F1 and F2. Clearly, each of the interlocking equipment 15 and 25 determines independently for each crossing whether to operate the respective crossing signals SA and SB. Again, there are no communications for determining whether to transmit warning signals from one crossing predictor to the warning device of another crossing.
It would thus need to be assessed whether the determination remotely at one point of whether to transmit warning signals to a crossing at another point based on a signal from a second predictor was inventive at the relevant time. As mentioned earlier, in the absence of any consequence of the claimed first crossing predictor detecting the presence of a train in an approach, either at the first crossing or elsewhere, the claimed first crossing predictor may simply be viewed as a remote controller acting only on the first signal from the second crossing predictor to determine whether to control the second crossing.
At the relevant time, the art appeared to relate the use of remote controllers in the following way. At paragraphs [007] and [008] of the specification, DAXing is described as the use of a crossing predictor at a first crossing to DAX a second device at a nearby second crossing if the first crossing predictor has detected the approach of a train from one direction at the first crossing. That is, the first crossing predictor is responsive to the detection of a train at its own site to remotely determine whether to DAX a downstream site. Similarly, in a further document mentioned in the examiner’s fourth and fifth reports, US Patent 7575202 (“D4”) to Sharkey et al, remote units or controllers are described for DAXing a crossing controller at a railway crossing based on the approach of a train at the unit or controller’s remote site. While the examiner appears to have raised D4 to indicate that the transmission of constant warning time signals was common general knowledge in the art at the relevant time, D4 is instructive also in respect to DAXing. Nonetheless I am not satisfied on the material before me that the remote determination by one crossing predictor of whether to send warning signals to a second crossing, based on a signal indicating whether a second crossing predictor has detected a train, was common general knowledge, or known, or a matter of routine in the art at the relevant time.
I conclude the claimed invention has an inventive step in light of the information before me.
SECTION 40
Subsection 40(3) requires that the claims be supported by matter disclosed in the specification. In Voestalpine Schienen GmbH v Nippon Steel & Sumitomo Metal Corporation, [2017] APO 32, the delegate referred, at [182], to the Explanatory Memorandum accompanying the Raising the Bar Bill and noted the intent of aligning Australian law in respect of the “support” requirement with overseas jurisdictions, such as in the United Kingdom (“UK”).
In Generics (UK) Limited v H Lundbeck A/S, [2009] UKHL 12, the House of Lords appeared to support, at [36] – [38], the principles from a decision of the EPO Technical Board of Appeal. Quoting specifically at [36]:-
“This means that the definitions in the claims should essentially correspond to the scope of the invention as disclosed in the description. In other words, … the claims should not extend to subject-matter which, after reading the description, would still not be at the disposal of the person skilled in the art.”
In the present case I have noted earlier that the crossing predictor, as defined in at least claims 1 and 17, may simply be viewed as a remote controller acting only on the first signal from the second crossing predictor to determine whether to control the second crossing. To eliminate the use of insulated track joints, as suggested by the specification (for example at [010] and [042]), and control DAXing dependent on direction of train travel, the crossing predictors in the present case are clearly reliant on further inputs to provide operational control than presently claimed. The following would appear to be necessary. The first and second crossing predictors are respectively associated with first and second crossings. Moreover, a first crossing predictor’s determination of whether to transmit warning signals to a second crossing is based on signals indicative of detection of a train at a first crossing’s approach and indicative of whether a second crossing predictor, spaced apart from the first crossing predictor, has detected a train. Moreover, the determination of whether or not to transmit warning signals to a second crossing is based on whether the second crossing predictor, through the first signal, has detected a train before detection of a train by the first crossing predictor.

I conclude the claims are not presently supported by matter disclosed in the specification.
CONCLUSION
The inventive step objection has not been made out on the information before me. On the other hand, the claims are not presently supported by matter disclosed in the specification, thus offending against subsection 40(3).
I think there is patentable subject matter in the specification from which valid claims may be drafted by amendment under Section 104. Under sub-regulation 13.4(1)(g), the applicant is allowed three (3) months from the date of this decision to obtain acceptance of the application.
M. G. Kraefft
Delegate of the Commissioner of Patents