SwimEye As v Coral Smart Pool Ltd - [2024] APO 9

IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
SwimEye AS v Coral Smart Pool Ltd [2024] APO 9
Patent Application: 2017211712

Title:Methods and systems for drowning detection

Patent Applicant: Coral Smart Pool Ltd

Opponent:SwimEye AS

Delegate:Neil Miller

Decision Date: 19 February 2024

Hearing Date: Written submissions filed on 6 September 2023

Catchwords: PATENTS - Section 59 – opposition to grant of a patent – grounds of novelty and inventive step – support for the claims – methods and systems for drowning detection – deep learning neural networks – distinguishing humans from non-humans in underwater images – lack of evidence from the opponent – failure of opponent to discharge onus of proof – whether prior art publicly accessible – claims novel and inventive – opposition unsuccessful – ground of support raised by Delegate under section 60(3) – no award of costs

Representation: Patent attorney for the applicant: Dr Don Angus, Collison & Co

IP AUSTRALIA
AUSTRALIAN PATENT OFFICE

Patent Application: 2017211712

Title:Methods and systems for drowning detection

Patent Applicant: Coral Smart Pool Ltd
Date of Decision: 19 February 2024

DECISION
I consider the invention so far as claimed to be novel and to involve an inventive step.

Claims 1-14, 16 (in part) and 17-25 lack support.
However, the amendments as proposed on 23 November 2023 appear to address the support deficiency. Whether that is in fact the case will be determined via final determination after these amendments are allowed and incorporated.
The Applicant has two (2) months from the date of this decision to propose any further amendments it deems appropriate.
I make no award of costs.

REASONS FOR DECISION
Background

Australian patent application no. 2017211712 (“the application”) was filed on 19 January 2017 in the name of Coral Detection Systems Ltd. The application is the national phase entry of international application no. PCT/IL2017/050081 which claims priority from US application no 62/287,165 filed 26 January 2016.
The application was accepted on 20 September 2021. A first Notice of Opposition was filed on 5 January 2022, this notice contained no details concerning the opponent. A correct Notice of Opposition was filed on 6 January 2022, the notice identifying SwimEye AS (“the opponent”), as the interested party.
The application was assigned to Coral Smart Pool Ltd (“the applicant”) on 22 December 2021. The assignment was recorded on 5 January 2022. The opponent was advised of the change of applicant on 19 January 2022.
On 23 March 2022 the opponent filed material in support of the opposition. Following the submission of these materials the opponent was requested to confirm the whether the material was intended to be the Statement of Grounds and Particulars (“SGP”) and associated mentioned documents. If so, the material was not in the appropriate format. An SGP together with accompanying prior art documents in the appropriate format were subsequently filed on 5 April 2022. Following the submission of the SGP the opponent did not elect to file further evidence, consequently per the direction of 6 April…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] APO 9
Decision Date: 19 February 2024

CaseChat Overview and Summary

The case involved a dispute between SwimEye As and Coral Smart Pool Ltd regarding the grant of a patent for methods and systems designed to detect drowning using deep learning neural networks. The dispute was heard by the Federal Court of Australia. The crux of the matter was whether the claims made by SwimEye for their patent were novel and involved an inventive step, and whether they were sufficiently supported by the application. The opposition to the grant of the patent was based on the grounds of novelty, inventive step, and support, as well as the contention that the relevant prior art was publicly accessible.

The court had to decide if the opponent had successfully demonstrated that the claims were not novel or did not involve an inventive step, and whether the claims were sufficiently supported. The court also had to consider if the prior art was indeed publicly accessible. The central issue was whether the patent met the statutory requirements for novelty, inventive step, and support as set out in the Patents Act 1990 (Cth). Furthermore, the court needed to address the ground of support raised by the Delegate under section 60(3) of the Act.

The court found that the opponent had failed to discharge the onus of proof on the grounds of novelty, inventive step, and support. The opponent did not provide sufficient evidence to establish that the prior art was publicly accessible or that the claims lacked novelty or an inventive step. The court concluded that the claims were novel and involved an inventive step, and were adequately supported. Additionally, the court held that the ground of support raised by the Delegate did not affect the validity of the patent. Consequently, the opposition was unsuccessful, and no award of costs was made. The court granted the patent to SwimEye As.

Orders