Taranis Power Group Pty Ltd v LAA Industries, Anderson IP v LAA Industries - [2023] APO 52

IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Taranis Power Group Pty Ltd v LAA Industries,
Anderson IP v LAA Industries [2023] APO 52
Patent:2017210650

Title:Motor Starting and Control System and Method Utilised by Directly Connecting Islanded Reciprocating Engine Powered Generators

Applicant:LAA Industries Pty Ltd

Opponent 1: Taranis Power Group Pty Ltd
Opponent 2: Anderson IP
Delegate:Dr N. R. Madsen – Deputy Commissioner of Patents

Decision Date: 13 October 2023

Hearing Date: Written submissions completed 29 August 2023

Catchwords: PATENTS – opposition under section 104 – electric motor and control system for pumping – allowability under subsection 102(2)(b) considered – whether as a result of the amendments, the specification would claim matter not clear or supported, or specification fails to clearly and completed describe the invention – amendment allowable – costs awarded against the opponents

Representation: Patent attorney for the applicant: Armour IP
Counsel for opponent 1: J. S Cooke SC and A. E. McDonald

Patent attorney for opponent 1: Patenteur
Patent attorney for opponent 2: Anderson IP

IP AUSTRALIA
AUSTRALIAN PATENT OFFICE

Application: 2017210650

Title:Motor Starting and Control System and Method Utilised by Directly Connecting Islanded Reciprocating Engine Powered Generators
Applicant:LAA Industries Pty Ltd
Date of Decision: 13 October 2023
DECISION

I consider the amendment of 12 December 2021 allowable. I award costs in accordance with Schedule 8 of the Patent Regulations 1990 against each opponent.
REASONS FOR DECISION
BACKGROUND

AU 2017210650 is an Australian patent application (the application) accepted on 12 February 2019 in the name of LAA Industries Pty Ltd (the applicant). The application claims priority from provisional patent application AU 2016903254.
Following acceptance the application was opposed under section 59 by three parties, these being: Allied Pumps Pty Ltd (Allied); Taranis Power Group Pty Ltd (Taranis); and Stephen Anderson (Anderson). These oppositions were heard, and each were successful[1] on the basis that the claims lacked novelty and inventive step. In those decisions, while expressing that he could not identify a feature which could be used as a basis for a novel and inventive claim, the delegate provided an opportunity for the applicant to amend. The applicant amended the application in accordance with section 104 on 17 December 2021 and a delegate of the Commissioner considered these amendments allowable.
[1] Allied Pumps Pty Ltd v LAA Industries Pty Ltd [2021] APO 46 (‘Allied decision’), Stephen Anderson v LAA Industries Pty Ltd [2021] APO 47, Taranis Power Group Pty Ltd v LAA Industries Pty Ltd [2021] APO 48.
Three opponents (Allied, Taranis, and Anderson IP) filed a notice of opposition to the proposed amendments and each opponent indicated an intention to file evidence. Evidence in support was filed by Anderson IP and Taranis. No evidence in support was received from Allied. Evidence in answer was filed by the applicant, followed by evidence in reply from Taranis and Anderson IP. As preparations were being made for the hearing of the matter, Allied indicated that they withdrew their opposition to the amendments.
The remaining opponents argued that the proposed amendment was not allowable because as a result of the amendments, the claims lack clarity and lack support, and that the specification does not disclose the invention in a manner that is clear and complete enough. They are thus said to fail section 102(2)(b).
For completeness, the evidence before me in the present matter includes:
·     Evidence in support in the form of declarations filed by Taranis and Anderson IP respectively from Tony Spirovski (“Spirovski #1”, dated 16 September 2022 with exhibit TS3-1) and Syed Mofizul Islam (“Islam #1”, dated 16 September 2022 with annexure SMI-A)
·     Evidence in answer in the form of a declaration from Philipp Jonas Voss (“Voss”, dated 20 October 2022 with exhibits JPV-1 to JPV-3)
·     Evidence in reply in the form of declarations filed by Taranis and Anderson IPrespectively from Tony Spirovski (“Spirovski #2”, dated 25 November 2022 with exhibit TS4-1) and Syed Mofizul Islam (“Islam #2”, dated 25 November 2022)
In submissions there was debate over experience of the experts as to their relevance to the present matter, and the weight that should be given to their declarations. I have considered the evidence of each party and note that the exercise of construction of the claims is primarily the responsibility of the delegate. Where “terms of art” are present, declarants may be of assistance, but I do not consider such construction issues arise in the present matter. I will consider the weight to be given to particular pieces of evidence if and where required in this decision.
THE RELEVANT LAW
Subsection 102(2)(b)
Relevantly to the present matter, according to subsection 102(2)(b) an amendment of a complete specification is not allowable after the relevant time if, as a result of the amendment, the specification would not comply with subsection 40(2) or (3). Such matters under s40 include whether the invention is clearly and completely disclosed, and whether the claims are clear and supported.
Notably, the legislation requires that the failure to meet the requirements must be the result of the amendment, the relevant time in this case being the time of acceptance of the application.
s40(2)(a) - The invention must be clearly and completely disclosed.
In Jusand Nominees Pty Ltd v Rattlejack Innovations Pty Ltd[2], Rofe J referred to the judgement of Burley J in Cytec Industries Inc. v Nalco Company[3] who in turn referred to respective decisions of Deputy Commissioners of Patents Barker and McCaffery in CSR Building Products Limited v United States Gypsum Company[4] and Evolva SA[5], presenting the following as guiding the consideration under s40(2)(a):
[2] [2022] FCA 540 at [376] to [378]
[3] [2021] FCA 970
[4] [2015] APO 72
[5] [2017] APO 57
“At [143] in Cytec Burley J referred to CSR Building Products in which Dr Barker considered at [95] that assessing whether the disclosure requirement was satisfied involved the following steps:
(1) construe the claims to determine the scope of the invention claimed;
(2) construe the description to determine what it discloses to the person skilled in the art; and
(3) decide whether the specification provides an enabling disclosure of all the things that fall within the scope of the claims.
At [144] his Honour also added two further steps from Evolva SA [2017] APO 57 at [45]:
(1) Is it plausible that the invention can be worked across the full scope of the invention?
(2) Can the invention be performed across the full scope of the claims without undue experimentation?
The last step aligns with what Jacob LJ described in Novartis AG v Johnson & Johnson Medical Ltd [2010] EWCA Civ 1039 (Novartis) as the heart of the disclosure test:
Can the skilled person readily perform the invention over the whole area claimed without undue burden and without needing inventive skill?”
s40(3) - The claim(s) must be supported by matter disclosed in the specification.
The requirement of support was discussed by Burley J in Merck Sharp & Dohme Corporation v Wyeth LLC[6]:
“In CSR Building Products Ltd v United States Gypsum Company [2015] APO 72, Dr S D Barker adopted the summary provided by Aldous J in Schering Biotech at 252 – 253, which has been often followed in the United Kingdom (emphasis added):
...to decide whether the claims are supported by the description it is necessary to ascertain what is the invention which is specified in the claims and then compare that with the invention which has been described in the specification. Thereafter the court’s task is to decide whether the invention in the claims is supported by the description. I do not believe that the mere mention in the specification of features appearing in the claim will necessarily be a sufficient support. The word ‘support’ means more than that and requires the description to be the base which can fairly entitle the patentee to a monopoly of the width claimed.
That approach encapsulates broadly the claim support obligation under s 40(3). To it may be added the requirement that the technical contribution to the art must be ascertained. Where it is a product, it is that which must be supported in the sense that the technical contribution to the art disclosed by the specification must justify the breath of the monopoly claimed”.

[6] (No 3) [2020] FCA 1477 at [546]- [547]
It is therefore the case that under s40(3), the matter in a claim of a specification must be supported by an enabling disclosure in the description and any drawings, graphics, photographs and sequence listing (i.e., the body of the specification).
s40(3) - The claim(s) must be clear.
The correct approach to the construction of claims was discussed by Bennett J in H Lundbeck A/S v Alphapharm Pty Ltd[7]:
“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”
[7] [2009] FCAFC 70 at [118] – [120]
The requirement for clarity will 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[8]. Further, “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” (Flexible Steel Lacing Co v Beltreco Ltd[9]).
[9] [2000] FCA 890 at [81]
THE INVENTION
The delegate in his decisions regarding the section 59 opposition summarised the invention. In the Allied decision, he wrote as follows:
“The invention relates to an engine-powered generator system for starting, powering and controlling electric motors and motor-driven devices.
The description states at paragraph 1:
‘The present invention relates to a system for starting and controlling an electric motor and/or motors solely via an optimally sized generator connected directly to said electric motor, including induction motor and/or motors, eliminating the need for external conventional current-limiting motor starting and control devices such as VSD (Variable Speed Drives), Soft-starters, Star/Delta Starting, Auto-transformers or the need to use expensive Wound-rotor motors.’
The invention is essentially using less electronics (than a traditional generator) to ‘condition’ power in between the engine-powered generator (which generates electricity) and the electric motor (which consumes the electricity).
Because there is less ‘conditioning’ of power between the generator and electric motor, this requires changes to the system, (when compared with a traditional generator) to ensure enough power is delivered to the electric motor when it is needed. In particular, this requires more active control of the engine speed (when compared with a traditional generator).
The system has sensors to measure the parameters of the effects of the motor (in particular fluid flow, fluid pressure or fluid level), instead of the parameters of the motor itself. The measured parameter is then compared against the desired ‘parameter set-point’. For example, if the motor drives a pump to keep water at a particular level, data from the water level sensor is compared against the desired water level. The speed of the generator is adjusted based on this comparison to keep the system at the parameter set-point.
I provide Figure 1 below as an informative depiction of the above.
The claims as proposed to be amended.
Prior to amendment there were 20 claims. The proposed amendment removes claim 20 and adds underlined features to claim 1 as follows:
A starting and control system for an assembly having an electric motor or motors, the system comprising:
– a generator assembly comprising an engine coupled to an alternator;
– an automatic voltage regulator (AVR) for controlling voltage output of the alternator;
– an engine control unit (ECU) for controlling an operation of the generator engine;
– a system controller connected to the AVR and operable to control the AVR, the system controller controlling the manner in which the AVR controls the alternator voltage output, the system controller being connected to the ECU and operable to control the manner in which the ECU controls the generator engine speed and therefore frequency of the voltage output from the alternator,
– a borehole water level sensor which provides an output to the system controller;
– wherein parameter set points including a parameter set point of predetermined water level are set in the system controller, and the system controller receives sensor signals, and based on type of control selected – selected from fluid flow, fluid pressure and fluid level – the system controller is configured and operable to control the AVR and/or the ECU to vary the speed of the generator engine and the alternator voltage output by the generator assembly so that the speed of the electric motor or motors is appropriately varied to maintain the parameter set points, and
– wherein alternator voltage is controlled by the system controller and the AVR to increase or decrease in proportion to changes in engine speed which maintains the speed to voltage relationship required to suit the motor or motors' electrical characteristics.
SUMMARY OF SUBMISSIONS
Opponent 1 is Taranis, and regarding the clarity of the claims I summarise their submissions in the following three respects:
1.The amendment introduces into claim 1 the requirement for a borehole water level sensor which provides output to the system controller and also a parameter set point of predetermined water level. They argue that these are present regardless of whether fluid level control is selected, and that the function of these added features is unclear when fluid flow or fluid pressure are selected for control.
2.The amendment uses inconsistent language in using three different terms to refer to fluid level being borehole water level, predetermined water level and type of control selected from fluid level.
3.With reference to the evidence of Mr Voss they submit that if “predetermined water level” in the amended claim refers to any measurable water level, and not the borehole water level, then it is not clear how the system is being controlled because the only water level disclosed in the application is the borehole water level.
Opponent 2 is Anderson IP and their submissions regarding the clarity of the claims are similar. They submit that there is no clear connection between the “borehole water level sensor” and “sensor” signals, and between the “borehole water level sensor” and predetermined water level. Fundamentally they suggest that it is not clear that there is any working interrelationship, nor is any operative relationship implied. They also submit that there is no clear connection between “fluid level” and the surrounding claim integers and particularly no clear working relationship between this term and the newly added features. The argue that:
“It is not clear whether the claim requires the system controller of Claim 1 to use the ‘output’ that is provided by the ‘borehole water level sensor’ in cases where ‘fluid level’ control applies; and … It is not clear whether the claim requires the system controller to maintain the ‘predetermined water level’ parameter set point in cases where ‘fluid level’ control applies.
Regarding the other two control methodologies (namely, ‘fluid flow’ and ‘fluid pressure’), Claim 1 is not clear as to whether the ‘predetermined water level’ set point is maintained by the system controller in cases where either type of control applies.
If the ‘predetermined water level’ set point is not maintained in cases where ‘fluid flow’ or ‘fluid pressure’ applies, then it is not clear what purpose is served by that set point in such cases. Similarly, it is not clear what purpose is served by the ‘borehole water level sensor’ of Claim 1 in such cases. The inclusion of both the ‘borehole water level sensor’ and ‘predetermined water level’ in Claim 1 indicates that these integers are essential to the working of the claimed system. The specification does not provide any information suggesting that these features are not essential. If the integers are essential, then it is impossible to determine the ambit of Claim 1 in cases where either the ‘fluid flow’ or ‘fluid pressure’ type of control applies. The terms of Claim 1 do not, therefore, provide any workable standard that is suitable for the intended use of the invention in such cases.”
The applicant addresses the opponent’s arguments regarding lack of clarity of the claims as exemplified by the following:
“The specification describes that ‘one or more set points may be set in the system controller 16 for one or more parameters’ with ‘inputs from the sensors 26, 28, 30 provid[ing] … indications of the current levels of the respective parameters’.
The description clearly outlines a number of parameters, each of which is measured by a different sensor, and each of which can be set as a set point. The claimed water level is one of these parameters, measured by the claimed borehole water level sensor, and with a setpoint of a predetermined water level.”
and
“By reason of the proposed amendment, the skilled addressee must also consider if the starting and control system also has a borehole water level sensor which provides an output to the system controller, and if the parameter set points include parameter set point of predetermined water level. There is no suggestion that a skilled addressee would have any difficulty in ascertaining the presence or otherwise of these additional integers. The claim (as a result of the amendment) is clear.
Regarding the ground of support, Taranis submit that the technical contribution to the art is a set-point starting and control system with control selectable from fluid flow, fluid pressure or fluid level. They argue that the amendment produces a claim which is broader than the technical contribution to the art, noting that the added features of the amendment are required regardless of the control selection. They suggest that there is no support in the specification for the use of a borehole water level sensor which provides output to the system controller and a parameter set point of predetermined water level in a system where fluid flow or fluid pressure is selected.
On this same ground, Anderson IP submits along the same lines in that in the absence of a clear working interrelationship between the relevant features and there is no disclosure in the specification how the particular sensor is used in fluid flow and fluid pressure modes, there being an undue burden in doing so. Both opponent’s arguments against support for the claims align with the submissions they make as to whether there is a clear and complete enough disclosure in accordance with s40(2)(a).
The applicant’s request for leave to amend points to paragraphs [25] and [70] of the specification in support of a disclosure of the relevant features, and they also point to paragraph [23] in their submissions. They suggest that while it may be argued that the specification does not describe relevant aspects in detail, the person skilled in the art would understand the use of a borehole water level sensor without the need for further description. They argued that identifying a lack of working interrelationship is not relevant to the present questions under s40(3) and s40(2)(a).
CONSIDERATION
Claim construction and clarity

I will first construe the claimed invention as proposed to be amended and deal with the ground of clarity. I will initially do so by taking a plain reading of the features in question in isolation. With this in mind, claim 1 is directed to a starting and control system for an assembly having an electric motor or motors. Relevantly, the starting and control system comprises the following features (with underlined features added by amendment):
– a borehole water level sensor which provides an output to the system controller;
– wherein parameter set points including a parameter set point of predetermined water level are set in the system controller, and the system controller receives sensor signals, and based on type of control selected – selected from fluid flow, fluid pressure and fluid level – the system controller is configured and operable to control the AVR and/or the ECU to vary the speed of the generator engine and the alternator voltage output by the generator assembly so that the speed of the electric motor or motors is appropriately varied to maintain the parameter set points
Present in the claim as proposed to be amended is a borehole water level sensor which provides an output to a system controller. Plainly there is no issue with the scope of this term in isolation. It is directed to a sensor that can measure the water level of a borehole and provides an output to the system controller.
Present in the claim as proposed to be amended are parameter set points that are set in the system controller. This system controller thus receives output from a borehole water level sensor and comprises settable parameter set points. Specifically, these parameter set points includes a set point representing a predetermined water level. Again, plainly this feature in isolation is easy to understand. It is simply data entered into the system controller that represents a predetermined level of water.
Also present in the claim is the ability to select different types of control, or in other words, different modes of control. A control mode can be fluid flow control. A control mode can also be a fluid pressure control mode or a fluid level control mode. Ultimately, types of control mode are selected, and the speed of a generator engine and alternator voltage is controlled to maintain the parameter set points. Clearly individually there is no issue in construction of these features and the arguments of the opponents fundamentally go to an issue of clarity when claim 1 as proposed to be amended is considered as a whole. I will address these various arguments as they are presented by the opponents.
Taranis: Unclear how borehole water level sensor and setpoint of predetermined water level function when in flow or pressure control modes
Taranis submit that the function of the added features is clear when in fluid level mode, but that it is unclear how the borehole water level sensor and water level set point function within the claim when flow or pressure control is selected. Reference is made by Taranis to the evidence of Mr Spirovski[10] who identifies that he could not reconcile the need to include the added features in circumstances of fluid flow or fluid pressure modes. Taranis characterise the submissions of the applicant in regard to this argument as considering the features in isolation.
[10] Spirovski #1 at [12], [13]
In addressing this argument, I agree with Taranis that I must consider the claim as a whole. In this regard I first turn to the borehole water level sensor. Claim 1 as proposed to be amended comprises a borehole water level sensor which provides an output to the system controller. There is no further reference in the claim to the borehole water level sensor. While there is a general reference to the controller receiving sensor signals, these sensor signals are not referred to again in the claim. As such, there is no operational functioning of the borehole water level sensor or the sensors more broadly that is defined in the claim other than their receipt by the system controller. On this basis, it is clear to me that the sensor signals (including the borehole water level sensor) may or may not be used in maintenance of the parameter set points. Thus, the borehole water level sensor may or may not be used in each of operating modes. The claim is merely limited to the presence of a borehole water level sensor which provides an output to the system controller. A third party ascertaining whether or not what they propose to do falls within the ambit of the claim as per Monsanto, need only determine if a borehole water level sensor is present. It is a feature that is actively claimed and present regardless of the selected operation mode.
The argument of the opponent also applies to the predetermined water level in that they suggest it is unclear how this is to function when in pressure or flow modes. Again, turning to the wording of the claim clearly present is the requirement for a parameter set point of a predetermined water level. Regardless of the selection of fluid flow, pressure or level, the system controller of the claim as proposed to be amended is configured and operable based on the selection from fluid flow, pressure and level, to control the generator engine and the alternator voltage to thus vary speed of motors to maintain the parameter set points. This control is clearly a reference to the antecedent parameter set points in the feature “wherein parameter setpoints including a parameter set point of predetermined water level are set in the system controller”. Thus, based on the selection of modes of operation, the claimed control is a configuration and operability to maintain the antecedent set points, and these set points include the predetermined water level. If one is seeking to determine whether what he proposed to do falls within the ambit of the claim it is clear to me that via the selection of modes, the predetermined water level can be maintained as being one of the parameter set points. How this control might be logically or algorithmically performed under each of the modes does not go to an issue of clarity of the claims. The claim is simply limited to the fact that the set points are maintained via the use of the modes of operation.
I note that prior to amendment, parameter set points were not defined in any way. They could have taken any values representative of any relevant characteristic. Based on the type of control selected from fluid flow, fluid pressure and fluid level, the controller is configured and operable to ultimately control speed to maintain these un-defined set points. The presently proposed amendments merely narrow the claim to include a specific set point that is controllable based on the selection from the three control modes. This is the boundary of the claim and on my reading, it is straight forward for the skilled addressee to determine whether or not they are within its bounds. Regardless of the type of control that may be selected, the system must include the new features. In this sense the claim is broad and is not concerned with how the added features are used in the context of control mode selection.
I do not find the claim unclear in relation to this argument of Taranis.
Taranis: Inconsistent language across different terms
The next point I will address as raised by Taranis was that the amendment uses inconsistent language in the form of three different terms and that this renders the claim unclear, these terms being borehole water level, predetermined water level, and type of control selected from fluid level. Reference is made to expert evidence in this argument and therein are some contradicting interpretations of the terms, in particular disagreement as to whether a predetermined water level set point was to be limited to a borehole water level.
To me, plainly a borehole water level sensor and its output is one thing in the claim, and a predetermined water level set point is another. These features may be related in that the set point may be used with reference to the sensor output or it may not. Consistent with my observation above, based on the control mode selected, the predetermined set points are maintained, including the water level set point. As such, I cannot see how the use of different language to describe different features renders the claim unclear. Individually each of the features are clear in that I see no basis for a borehole water level sensor sending output to a system controller, a predetermined water level set point, or fluid flow/pressure/level to not be understood by the person skilled in the art merely because of their collective presence in the claim and the use of different language. On my reading, the different language represents different features.
I do not find the claim unclear in relation to this argument of Taranis.
Taranis: Only water level disclosed is borehole water level
A further argument put by Taranis is that if the predetermined water level can be any measurable water level and not the borehole water level, then it is not clear how the system is being controlled because the only water level disclosed in the application is the borehole water level. The claim does not in any way seek to limit its scope by how the system is being logically configured in terms of particular pieces of data. The system is simply being configured and is operable to maintain the set points (including a water level) and optimal motor control. The system configured and operable in the presence of sensed and output borehole water level data, and also in the presence of parameter set points involving a predetermined water level. There is nothing in the claim to suggest that the predetermined water must refer to the borehole, it could be another water source sensed in some other way, with the borehole water level sensor data still being provided to the controller. Properly construed the predetermined water level may refer to the sensed borehole data or it may not. For a skilled addressee to determine if what they intend to do falls within the scope of the claim they need only ask: “if present, is the feature of a borehole water level sensor outputting to a system controller?” and, “if present, is the feature of configured control of the parameter set points including a predetermined water level set point?” The claim is directed to these features broadly and in as much, is directed to their use in any manner. The fact that other specific water level sensors are not disclosed in the application does not render the claim unclear.
I do not find the claim unclear in relation to this argument of Taranis.
Anderson IP: No clear connection between ‘borehole water level sensor’ and ‘sensor signals’
Anderson submits that:
“The term, ‘sensor signals’, has no antecedent integer in Claim 1. Furthermore, Claim 1 does not define whether these signals are necessarily produced by any particular component of the system, or that they originate from any source external to the system. It is, therefore, not clear whether any working relationship exists between the ‘output’ that is provided by the ‘borehole water level sensor’ and the ‘sensor signals’ that are received by the system controller of the invention”.
They add that the term is expressed in the plural and that the claim does not say whether these sensor signals include signals ‘output’ by the ‘borehole water level sensor’. Ultimately, they argue there are three alternative constructions as follows:
a)   The ‘sensor signals’ defined in Claim 1 consist exclusively of signals ‘output’ by the borehole water level sensor;
b)   The ‘sensor signals’ comprise a non-limiting list of multiple sensor signals, which include but are not limited to signals ‘output’ by the borehole water level sensor; or
c)   As per [b)] above, except that the ‘sensor signals’ do not include any signals ‘output’ by the borehole water level sensor.
In response the applicant notes construction b) is appropriate.
Clearly the claim does not limit the way in which sensor signals are used, they are simply received. With this in mind it is clear to me that sensor signals are present such that the system has them available for use in different circumstances, or more specifically, in different types of control. There is no requirement for a defined working interrelationship here in determining the metes and bounds of the claim in question. Present in the claim is a borehole water level sensor which provides an output to the system controller along with the receipt by the system controller of sensor signals. A plurality of sensor signals are received by the system controller, and one of the sensor signals received by the system controller is a borehole water level sensor. The boundary of the claim’s scope is clear in this regard. There are multiple sensors which include but are not limited to a borehole water level sensor as per option b) above.
I do not find the claim unclear in relation to this argument of Anderson IP.
Anderson IP: No clear connection between ‘borehole water level sensor’ and ‘predetermined water level’
Anderson submits with reference to the argument above that it is not clear whether the claim as proposed to be amended requires the system controller to use the output that is provided by the borehole water level sensor to maintain the predetermined water level parameter set point. Reference is made by Anderson IP to expert evidence and constructions taken by those experts however I do not consider their evidence necessarily to my task of construction at this point. Regardless of how the claimed system is used, present in the claim is a borehole water level sensor which provides an output to a controller, and also present is a predetermined water level set point. They may refer to each other in operation or they may not. The claim simply requires that these features are present.
I do not find the claim unclear in relation to this argument of Anderson IP.
Anderson IP: No clear connection between ‘fluid level’ and surrounding claim integers
Anderson submits that the term fluid level has no antecedent basis in the amended claim and the word fluid is not used other than in this term leading to the semantics of the claim not requiring a clear working relationship between this term and the newly added features of the amended claim. A detailed account of their submission in this regard is reproduced above at paragraph [18]. The argument under this basis reflects that of Taranis that I have addressed earlier under the heading above from paragraph [27] referring to the idea that it is unclear how borehole water level sensor and setpoint of predetermined water level function when in flow or pressure control modes, and I refer to my discussion above in that regard.
Adding to this, I note that it does not appear necessary to the determination of the ambit of claim 1 as proposed to be amended to understand the purpose and function of the borehole water level sensor and predetermined water level set point when fluid flow or fluid pressure are selected as a control type. The claim simply requires that selection of control type enables the control of the set points. The relevant scope of the claim is that present in the starting and control system is:
·     A borehole water level sensor which provides an output to the system controller
·     Plural sensor signals received by the system controller
·     Plural parameter set points one of which being a predetermined water level
·     Based on the selection of control from flow, pressure or level, the system is configured and operable to maintain the plural parameter set points.
I see no reason why the skilled addressee could not work out if what they propose to do takes these features. How the system is configured to do the task of controlling the set points is not the subject of the claim, and in this sense the claim as it stands is rather broad, although clearly narrower than that prior to amendment as a particular sensor and set point provided to the system is claimed.
I do not find the claim unclear in relation to this argument of Anderson IP.
The amendment does not introduce an issue of clarity. The construction of claims is a question for me as delegate that can be assisted by evidence. In this case, in spite of difficulties alleged by the evidence of the opponents in construing the claim in question, I consider the claim clear. The evidence has been of little assistance.
Support
I summarise both Taranis and Anderson IP’s submissions regarding the ground of support as follows:
·Taranis suggest that “[t]here is no support in the specification for the use of a borehole water level sensor which provides an output to the system controller and a parameter set point of predetermined water level in a system where ‘fluid level’ or ‘fluid pressure’ is selected as the type of control.” They suggest the technical contribution to the art includes only one type of set point control and that there is no support for a system controller controlling fluid level other than by us of the borehole water level sensor.
·Anderson IP refers to their arguments under the ground of clarity in suggesting that there is no clear working relationship between the relevant features. They suggest that the specification does not disclose how to use the borehole water level sensor signal for fluid flow or fluid pressure mode, or how to use the other sensor signals in the claim for the fluid level control mode. Similar is said of the set point of the predetermined water level. Ultimately, their argument is one that the specification does not provide enablement across the whole scope of the claim, there being an undue burden or further invention required.
In their request for leave to amend the applicant pointed to paragraphs [25] and [70] of the specification. These paragraphs are as follows:
In a preferred embodiment, the electric motor or motors operates a borehole pump or pumps, and the load system includes one or more load environment sensor or sensors including a borehole water level, pressure sensor or speed monitor, which provides an output to the system controller
In the preferred embodiment, one or more set points may be set in the system
controller 16 for one or more parameters. Such parameters may include, for example:
•    A predetermined water level
•    A predetermined water head
•    A predetermined belt speed
•    A predetermined pressure rating
•    A predetermined torque
•    A predetermined fan speed
•    Other sensor-measurable parameter
On my reading of these paragraphs the concepts of a borehole water level sensor and predetermined water level setpoint are presented in isolation as possible system additions. Similar can be said of paragraph [73] which generally introduces the maintenance of the set points based on signal levels and the type of control selected. Reading the specification as a whole I do not see any suggestion that the technical contribution to the art is a particular way of controlling using particular sensors, setpoints and modes of operation. The specification generally suggests these features as optional and not necessarily connected in a particular manner of control. Instead, the technical contribution to the art as put forward by the specification appears to relate to the general use of sensor and setpoint data to guide the control of voltage and speed of the generator so as manage speed of motors and maintain desired operational characteristics of motors.
The background of the invention in the specification discusses problems related to the oversizing of generator engines that is not addressed in the specification by the specific uses of sensors and operation modes, but is addressed by features of the claim that were present prior to amendment relating to the use of an automatic voltage regulator (AVR) for controlling voltage output of the alternator and an engine control unit (ECU) for controlling operation of the generator engine. The system controller is configured and operable to control the AVR and/or the ECU to vary the speed of the generator engine and the alternator voltage output by the generator assembly so the speed of the electric motors is appropriately varied to maintain set points, wherein the alternator voltage is increased or decreased in proportion to engine speed to maintain the desired speed voltage relationship to suit the motor’s characteristics.

It follows that there is a disclosure in the specification of the claim as proposed to be amended. As to whether this disclosure is enabling, I first note that prior to amendment the claimed invention was directed to any of a plurality of sensors and any parameter set points being controlled based on the type of control selected from fluid flow, fluid pressure and fluid level. Fundamentally, any issue of enablement, if it exists now in the claim as proposed to be amended would have existed prior to amendment. The claims were not found to lack support by the delegate in his decisions under section 59.
That aside, the evidence of the opponent’s experts appears to go no further than to generally say that they would not be able to determine how the system of amended claim 1 would operate using the new features[11]. Mr Spirovski also adds[12] that “he is not certain it would be possible to achieve success for either fluid flow or fluid pressure using borehole water level sensor as output alone”. Consistent with my discussion earlier this evidence goes more to the argument of clarity than support, and does not raise significant doubt as to whether the invention can be performed across its full scope. Having construed the claim and identified the nature of the technical contribution from a reading of the specification as a whole it is clear to me that the specification contemplates that any suitable operation of sensors and parameters is appropriate. With this in mind, I see no basis for an undue burden or no need for further invention in applying the teaching of the specification to implement the claimed invention.
[11] Spirovski #1 at [14], Islam #2 at [12]
[12] Spirovski #1 at [15]
A relevant point raised by the opponents is that there may be no working interrelationship between the newly added features and the other features of the claim and to an extent this is correct. For example, the borehole water level sensor data need not be used at all to be within the scope of claim 1 as proposed to be amended. There is clearly a potential for a working interrelationship which goes to the breadth of the claim in simply requiring data from a particular sensor to be present in the claim. On its face, it would appear that the addition of such a feature, in addition to a particular set point being merely a water level, would not be inventive. The specification appears to suggest such feature are peripheral optional additions to the invention. However, I will leave this matter to the delegate to decide as part of his final determination.
A further argument of Anderson IP was that:
“Claim 1 is directed to a starting and control system for an assembly have an electric motor or motors, and is not confined to any particular motor. In particular, Claim is not confined to an electric motor or motors operating a borehole pump or pumps. As such, Claim 1 could, for example, be directed to an electric motor for a conveyor/fan powered by the motor or motors to propel material/air being conveyed farther or nearer.”
I do not see any issue of support arising here. Again, any sensors and set points were present previously in the claim, so any issue does not appear to arise as a result of the amendment. Secondly, in the context of the borehole water level sensor and predetermined water level, all that is required by the claim is the appropriate varying of motor operation to maintain the set points including a predetermined water level. The system of claim 1 must therefore be capable maintaining such a set point. As above, the technical contribution to the art does not relate to the particular logic of how the set points are maintained and how the sensors are used.
I consider that the amendment does not give rise to an issue of support.
Clear and complete disclosure
As discussed above, the opponents’ submissions as to a lack of clear and complete disclosure speak to the same issues posed as was the case under the ground of support. I do not see any lack of enablement across the full scope of the claims, and I do not see issues arising as a result of the amendment.
I consider that the amendment does not give rise to an issue of clear and complete disclosure.
CONCLUSION
I consider the amendment is allowable as it is clear and does not give rise to an issue of support or clear and complete disclosure. The oppositions are unsuccessful.
COSTS
The opposition to the s104 amendments is unsuccessful and I see no basis to depart from the usual practice to award costs against the unsuccessful parties, being Taranis and Anderson IP.
Dr N. R. Madsen
Deputy Commissioner of Patents

[8] (1974) 48 ALJR 59, “Monsanto”