Taylex Industries Pty Ltd v Aranooc Pty Ltd
[2018] APO 48
•30 July 2018
IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Taylex Industries Pty Ltd v Aranooc Pty Ltd [2018] APO 48
Patent Application: 2010286347
Title:Liquid Reservoir Connection System
Patent Applicant: Aranooc Pty Ltd
Opponent: Taylex Industries Pty Ltd
Delegate: M. G. Kraefft
Decision Date: 30 July 2018
Hearing Date: 24 May 2018, in Melbourne
Catchwords: PATENTS – section 59 – opposition to grant of patent – connection system enabling pivotal and longitudinal movement of conduit relative to reservoir – whether claims are novel – whether there is inventive step – claims including omnibus claim found to lack inventive step – whether invention is manner of manufacture – whether invention fully described – whether claims are clear – whether claims are fairly based – opportunity to amend specification allowed.
Representation: Patent attorney for the applicant: Mr Matt Pini, Pini IP
Patent attorney for the opponent: Mr Regan Gourley, Cullens.
IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Patent Application: 2010286347
Title:Liquid Reservoir Connection System
Patent Applicant: Aranooc Pty Ltd
Date of Decision: 30 July 2018
DECISION
Claims 1-9 do not have an inventive step over two prior art documents filed in this opposition, and considered individually.
The applicant is allowed two (2) months from the date of this decision to propose suitable amendments under Section 104 to overcome these findings.
Costs in accordance with Schedule 8 awarded against the applicant, Aranooc Pty Ltd.
REASONS FOR DECISION
BACKGROUND
Aranooc Pty Ltd (“the applicant”) filed patent application 2010286347 on 30 August 2010 as an international application under the Patent Cooperation Treaty (“PCT”). The international application is designated PCT/AU2010/001114. The application is based on an Australian provisional application filed on 31 August 2009 (“the priority date”). Application 2010286347 was advertised as accepted on 15 September 2016.
Taylex Industries Pty Ltd (“the opponent”) filed a notice of opposition on 15 December 2016. A statement of grounds and particulars followed on 10 March 2017.
The parties completed the evidentiary stages on 22 September 2017.
SPECIFICATION
The specification describes the present invention as relating to the field of connectable structures for use in residential properties, industrial properties, municipal parks, gardens or indoor/outdoor spaces. In one form, the invention relates to a connector system for use in the connection of liquid reservoirs, which may include tanks, and is particularly suited for use in equalising connected reservoirs and/or the liquid stored in such reservoirs.
As background, the specification discusses the increasing commonality of rain water storage tanks in residential areas. Traditional water storage tanks were large and unsightly, and limitations existed in locating them within properties. More recently, the aesthetics and dimensions of rain water tanks have improved enabling them to be placed alongside a house with minimal unsightly intrusion into the garden. Nonetheless the capacity of individual tanks often has had to be quite limited. To attain sufficient storage capacity to service a site, a number of interconnected tanks may be required that allow free flow of fluid between tanks.
The specification mentions a number of difficulties associated with interconnecting two or more liquid reservoirs. For example, difficulties may be caused by independent movement of tanks relative to adjacent tanks. Such movement places stress on the connection between tanks, potentially breaching any fluid tight seal and allowing leakage.
By way of example, the specification mentions one existing method of connecting tanks using a pipe to connect pre-cast ports of adjacent tanks and placing a washer and nut, or similar, at each end of the pipe to tighten the pipe in the port. Another existing method of connecting tanks uses a fitting such as a threaded metal screw that is fixed cast into the tank to define the port. A pipe with a corresponding thread at each end can then be screwed into the port.
The specification states that sealant can also applied in an attempt to achieve a watertight seal between a pipe and port in a tank. As an alternative to using sealant, some tanks are provided with an integral connector that is typically cast into the tank when it is fabricated. In another example, some tanks have an integral polymeric connector known as a ‘press seal’.
In the above examples, the specification consistently mentions the ongoing problems of expansion and contraction of pipe, port or tank and/or the independent movement of adjacent tanks.
The specification ends with nine claims. Aside from an omnibus claim at the end, claims 1 and 8 are independent claims. These claims read as follows.
1.A connection system adapted to equalise the flow of liquid between a liquid reservoir and its exterior, the system comprising:
at least one port located within a wall of the liquid reservoir for providing a connection between the interior and exterior of the reservoir;
a conduit for enabling the passage of liquid via the at least one port;
a sealing means operatively connected to the at least one port for providing a liquid tight seal to an exterior surface of the conduit so that liquid flow is restricted to an internal passage of the conduit;
a barrier between the conduit and the wall of the liquid reservoir in the form of a moulding of resilient material which accommodates the sealing means and comprises at least one flange adapted to engage with and extend across the internal walls of the at least one port;wherein, in combination, the at least one port, the barrier and the sealing means form an arrangement for accommodating pivotal and longitudinal movement of the conduit in more than one direction with respect thereto so as to restrict contact between the conduit and the wall of the liquid reservoir and maintain the liquid tight seal.
8. A system for an outdoor structure, the system comprising:
at least one liquid reservoir tank adapted to function as one or a combination of a retaining wall, a partition and a supporting structure, the at least one liquid reservoir tank in operative connection with a subsidiary apparatus;
the subsidiary apparatus comprising one of a garden bed, a water feature, a pool or a spa and said subsidiary apparatus adapted to receive liquid from the at least one liquid reservoir tank;
a fluid connector intermediate the at least one liquid reservoir tank and the subsidiary apparatus, the connector comprising:
one or more resilient seals seated at the periphery of a port in the at least one liquid reservoir tank, and
a conduit which is adapted to be encircled and sealingly engaged by the one or more seals to form a liquid tight seal around the conduit and wherein the conduit can move relative to the port either pivotally or longitudinally such that the liquid tight seal is maintained through movement of the conduit in at least a longitudinal direction into or out of the port.APPLICABLE LAW
As a consequence of the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 (“the Raising the Bar Act”), there are substantial changes to the Patents Act 1990. The date of effect of those changes was 15 April 2013. The application of the Raising the Bar Act in the present case depends on the date of the request for examination. The applicant filed its request for examination on 10 April 2013. Consequently the Patents Act as in force immediately before 15 April 2013 applies in the present case.
This means the former standard for opposition proceedings applies and the opponent bears the onus of establishing that it is clear or practically certain that a valid patent could not be granted (F Hoffman-La Roche AG v New England Biolabs Inc [2000] FCA 283; 50 IPR 305 at 311, 319; Commissioner of Patents v Sherman [2008] FCAFC 182; 79 IPR 426; Genetics Institute Inc v Kirin-Amgen Inc [1999] FCA 742; [1999] 92 FCR 106 at [17]).
Section 18 of the Patents Act 1990 relates to patentable inventions. Relevant parts of subsection (1) appear 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
(c) is useful; and ………
Subsections 40(2)(a), (b) and (3) at the relevant time were as follows.
(2)A complete specification must:
(a) describe the invention fully, including the best method known to the applicant of performing the invention; and
(b) where it relates to an application for a standard patent - end with a claim or claims defining the invention; and …
(3)The claim or claims must be clear and succinct and fairly based on the matter described in the specification.
STATEMENT OF GROUNDS AND PARTICULARS
The opponent listed six grounds of opposition. These grounds were that:-
(1)the invention as claimed was not novel;
(2)the invention as claimed did not involve an inventive step;
(3)the complete specification did not disclose the invention in a manner which was clear enough and complete enough for the invention to be performed by a person skilled in the relevant art;
(4)the claims did not clearly and succinctly define the invention;
(5)the claims were not supported by matter disclosed in the specification; and
(6)the invention as claimed was not for a manner of manufacture.
The opponent provided particulars against each of the above grounds.
It may be noted that grounds 3 and 5 are applicable under the Raising the Bar Act rather than, relevantly to the present case, the Patents Act as in force before 15 April 2013. Nonetheless, at least for ground 5, the opponent described the particulars in terms of the Section 40 requirements in existence before the Raising the Bar Act came into force and, more specifically, that the claims lack fair basis.
In submissions the opponent addressed the grounds and particulars in the context of the Section 40 requirements as they existed before the Raising the Bar Act came into force. While the applicant noted the inapplicability of the original grounds 3 and 5 to the present case, the applicant had prepared its case on the basis of the correspondingly similar grounds before the Raising the Bar Act came into force. Moreover the applicant accepted at the hearing that its position had not been compromised by the opponent citing the incorrect grounds.
EVIDENCE IN SUPPORT
The opponent filed evidence in support from Mr Daryl Willsher. He is a director of the opponent. At the time of his declaration, Mr Willsher had been in the plumbing industry for 32 years and he was a licenced plumber and drainer. Mr Willsher had also been in the precast concrete industry for 26 years. During this time, Mr Willsher had been involved in the manufacture of rainwater tanks, septic tanks and wastewater treatment systems.
In his evidence, Mr Willsher discussed the background art around aboveground rainwater tanks. He mentioned the commonality of providing multiple, interconnected tanks as a way of increasing capacity. Mr Willsher stated that almost all modern, residential rainwater tank installations utilise polyvinyl chloride (“PVC”) piping for such coupling. He further stated that the use of rubber seals when connecting tanks in such manner was very common to allow for movement between tank and pipe, and that the use of rubber seals around PVC pipes had been standard since before the priority date.
Mr Willsher then discussed the features of all the claims of the application and stated that all the features were very commonly known at the priority date. He also exhibited and discussed three US patents and concluded that all the features of at least claims 1-6 and 9 were clearly disclosed in those documents. In respect to the additional subsidiary apparatus of claim 8, Mr Willsher stated that it was extremely well known for rainwater tanks to supply a garden bed, water feature, pool or spa, and that the tank’s use did not influence the choice of coupling at the port.
EVIDENCE IN ANSWER
The applicant filed evidence in answer from Mr John Carrick Woodhouse and Mr Matthew Bernard Pini.
Mr Woodhouse is the managing director of the applicant and the named inventor for the present application. In the 1980s, Mr Woodhouse operated a wood heater manufacturing business. He stated that he was involved in the design, marketing and sale of wood heaters, hot water systems and solar systems. Subsequently, Mr Woodhouse launched a company that developed a product using iodine disinfectant and sanitation technology for use in the food washing and processing industry. Mr Woodhouse stated that the underlying technology involved extensive use of water treatment and water processing technologies such as “O” ring seals, solenoid valves and back flow prevention devices, remote computer control and data logging systems, as well as flow calculation and pressure management. In 2008, Mr Woodhouse founded the present applicant company and described a necessity to use some of the prior seal and water management experience to design better seal devices. The intent was to improve the connectivity of tanks together with conduits that would be subject to movement in either direction. Mr Woodhouse stated that this particular technology evolved into the subject matter of the present application. Mr Woodhouse also mentioned ten years of experience in the pre-cast industry.
In evidence, Mr Woodhouse principally challenged the opponent’s evidence on the commonality of the claimed features and on the relevance of the cited US patents. In summary, he stated that none of the opponent’s prior art were suitable for two-way application for a connection system for pipes and conduits. That is, the seals were one-way directional in their use and could not be used if there was a need to accept a pipe from either direction.
Mr Pini is the patent attorney responsible for the prosecution of the present application. He submitted that the addressee of the present application would be a combination of a person with skills in pipe/conduit fittings for conveying water and a person with skills in the installation and assembly of large building structures such as connectable concrete tanks that are adapted to form structural or retaining walls. He concluded the skilled addressee required a combination of plumbing, building, hydraulic and construction engineering skills.
Mr Pini further argued against the opponent’s prior art disclosing a connection system of the nature claimed in the present application. Moreover, he argued the seals of the prior art were adapted for one-way insertion of pipes only.
EVIDENCE IN REPLY
The opponent filed evidence in reply from Mr Willsher. He principally noted the applicant’s stresses in its evidence in answer on two-way connection systems and on several undesirable characteristics of the sealing devices disclosed in the opponent’s prior art. Mr Willsher though challenged the relevance of that discussion as it was not directed to the invention as claimed in the present case. Consequently Mr Willsher maintained the position that the opponent’s prior art clearly disclosed the invention as claimed.
NOVELTY
Under subsection 7(1), an invention is taken to be novel unless it is not novel in the light of the prior art base. Information in a document forms part of the prior art base for the purposes of novelty if it was published before the priority date of a claim, or the information was contained in a specification published after the priority date of the claim under consideration and, if that information is, or were to be, the subject of a claim of the specification, that claim has, or would have, a priority date earlier than that of the claim under consideration (referred to as “whole of contents” novelty).
It is well established that the general test for lack of novelty is the reverse infringement test. The classic formulation of this test is that given by Aickin J in Meyers Taylor Pty Ltd v Vicarr Industries Ltd, [1977] HCA 19 at [20]; 137 CLR 228 at 235:
“The basic test for anticipation or want of novelty is the same as that for infringement and generally one can properly ask oneself whether the alleged anticipation would, if the patent were valid, constitute an infringement”.
This test is satisfied if the alleged anticipation discloses all the essential features of the invention as claimed (see Nicaro Holdings Pty Ltd v Martin Engineering Co, [1990] FCA 40; (1990) 91 ALR 513 at 517). In order to meet this requirement, the prior art must "contain clear and unmistakeable directions to do what the patentee claims to have invented" (The General Tire & Rubber Company v The Firestone Tyre and Rubber Company Limited, [1972] RPC 457 at 486). In a similar vein, what a prior art document teaches is to be distinguished from what might be “included” or “encompassed”. “A prior broad disclosure thus may not be sufficient ‘in the absence of the skilled addressee understanding or perceiving’ the later claimed invention therein” (Sanofi-Aventis Australia Pty Ltd v Apotex Pty Ltd (No. 3), [2011] FCA 846 at [180]).
The opponent relied on the following documents to contend that claims 1-7 principally lacked novelty.
US Patent 4103901 (“D1”)
This document relates to an elastomeric moulded gasket. The gasket is stated to be particularly useful for resiliently supporting a sewer pipe in an opening through the wall of a manhole. It also provides a tight seal, closing the space between the wall of the opening and the pipe.
Claim 1 of the present application defines a connection system adapted to equalise liquid flow between a liquid reservoir and its exterior whereas D1 principally relates to the use of a gasket supporting a sewer pipe in an opening in the wall of a manhole. The opponent contended that a manhole fell within the definition of a liquid reservoir. In this respect the opponent stated that an empty reservoir was still a reservoir. That is, a reservoir merely needed to be adapted to hold liquid which was clearly within the capability of a manhole. In the alternative, the opponent stated that manholes access sewer systems and if the sewer system backed up, then the manhole would contain liquid and thus be a liquid reservoir. The applicant indicated that, while a manhole may be subject to some flow or infiltration of fluid at times, it was clearly not a liquid reservoir in the context of the application. In principle a manhole is to serve as an access point for maintenance.
The Oxford English Dictionary ( defines a manhole as a hole or opening in a floor, pavement, boiler, etc., through which a person may pass to gain access to a structure or mechanism for inspection, maintenance, etc. Similarly the Macquarie Dictionary ( defines a manhole as a hole through which a person may enter a sewer, roof cavity, steam boiler, etc.
The Oxford English Dictionary defines a reservoir as a lake or large pool, natural or man-made, used to store water. The Macquarie Dictionary defines a reservoir as a natural or artificial place where water is collected and stored for use or, alternatively, a receptacle or chamber for holding a liquid or fluid.
Clearly a reservoir is a place for the intended retention or storage of a liquid, while a manhole is an entry and/or service point for personnel to access some structure. I am not satisfied that the above definitions would support a position that a manhole is a liquid reservoir.
At the hearing the opponent further referred to the website of the assignee of D1 ( There was nothing about this website in evidence in this opposition, nor was the content of the site at the priority date established in this case. For the sake of completeness though, I will briefly refer to it. Therein there is a link titled “Manhole size versus Pipe Size”. This may suggest manholes being envisaged similarly to pipes and perhaps being conveyances for liquid. On the other hand, the discussion therein is in the context of appropriate pipe diameters and angles to fit round concrete structures such as manholes. There would appear to be no envisaging of the manhole itself as a liquid storage or conveyance facility.
In summary I am not satisfied that a manhole fits the concept of a liquid reservoir in the present case. Moreover I am not satisfied that D1 discloses a system adapted to equalise the flow of liquid between a manhole and elsewhere. Claim 1 defines a connection system adapted to equalise the flow of liquid between a liquid reservoir and its exterior. I find that D1 does not disclose a system adapted in such way.
Accordingly I conclude that claim 1 is novel over D1. Since claims 2-7 are dependent on claim 1 then I conclude that claims 2-7 are also novel over D1.
US Patent 4333662 (“D2”)
This document relates to a gasket for sealing the annular gaps between pipes and structures into which the pipes extend. More particularly, the gaskets are for use in sealing connections between sewer pipes and underground structures such as manholes.
As with D1, the environment of use of the system of D2 would appear to be an issue compared with claim 1 of the application. D2’s environment of use may appear somewhat broader than for D1 as the former describes the use of gaskets in sealing connections between sewer pipes and underground structures generally, such as manholes. Nonetheless the substance of D2’s disclosure relates to connections of pipes to manholes. I see insufficient reason to interpret the disclosure of D2 any broader than relating to manholes and the like.
For the same reasons as for D1, I conclude that claim 1 is novel over D2. Since claims 2-7 are dependent on claim 1 then I conclude that claims 2-7 are also novel over D2.
US Patent 4951914 (“D3”)
This document relates to a pipe seal assembly for use in on-site waste disposal systems, such as in a septic system having a poured concrete septic tank, drop box or distribution box.
Figure 10 of D3 would appear to be most relevant in the present case and is shown below.
D3 discloses a seal with a cylindrical seal wall member 11, amongst other things. The seal wall member 11 is equipped with an integral, relatively flexible, frusto-conical shaped flange member or reverse wiper blade 22. The wiper blade has the necessary flexure to maintain a pipe-sealing configuration in use. An integral anchor flange is also provided for embedding in the concrete 17. The various components of the seal assembly are preferably of corrosion-resistant, durable and inert plastic-type materials.
The use of the pipe seal assembly of D3 in a septic system, and more particularly having a poured concrete septic tank, would fit the definition of adaptation to equalise the flow of liquid with a liquid reservoir as claimed in the present case. Accordingly I am satisfied that D3 relates to the environment as presently claimed.
D3 also clearly includes a port, conduit, and sealing means as presently claimed. There was some conjecture at the hearing as to whether a barrier, as claimed, was disclosed in D3. From the diagram above, it may be seen that a barrier between the conduit and the reservoir wall exists and that it extends across the internal walls of the port. It just so happens that the barrier in D3 is also an integrated part of the cylindrical seal wall member. The components are also described as being of plastic-type materials. I am prepared to accept that a barrier, as claimed in the present case, is disclosed in D3.
The opponent contended that Figures 12 and 13 of D3 illustrated scope for tolerances of pivotal and longitudinal movement of the pipe between the concrete wall sections. These illustrations depict a connected series of multiple seal assemblies in sealing pipes through thick concrete wall sections. Multiple, flexible, frusto-conical shaped wiper blades 22 are arranged in series along the pipe and in the space between the pipe and the surface of the cylindrical seal wall member in the port of the thick, concrete wall. The opponent submitted the arrangement accommodated or allowed pivotal and longitudinal movement of the pipe in more than one direction, at least on a minor scale. On the other hand there are no clear and unmistakable directions in D3 that this is so. For example, the flexibility in the wiper blades is to maintain its pipe-sealing configuration.
Accordingly I conclude that claim 1 is novel over D3. Since claims 2-7 are dependent on claim 1 then I conclude that claims 2-7 are also novel over D3.
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 art in the light of the common general knowledge, considered alone or together with the prior art. A document, or two or more related documents if a person skilled in the art would treat them as a single source of information, is prior art for this purpose if "a skilled person mentioned in subsection (2) could, before the priority date of the relevant claim, be reasonably expected to have ascertained, understood, regarded [the document] as relevant" (Subsection 7(3) at the relevant time).
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 opponent submitted the person skilled in the relevant art in the present case was a person skilled in the design and manufacture of liquid reservoir products and, in particular, rainwater tanks as well as being familiar with the installation of interconnected liquid reservoir products. Moreover the opponent noted that Mr Willsher had significant employment history in the manufacture and installation of tanks and was therefore well qualified to declare as to the state of the common general knowledge in relation to the manufacture and installation of tanks, and particularly interconnected tanks. By contrast, while the opponent accepted that Mr Woodhouse seemed to be an experienced business person with background in a variety of industries and technologies, the opponent contended that Mr Woodhouse did not have a demonstrated background in the manufacture and installation of tanks.
The applicant submitted the skilled addressee in the present case was a combination of a person with skills in pipe and conduit fittings under hydrostatic pressure and a person with skills in the installation and assembly of large building structures such as connectable concrete tanks that are adapted to form structural or retaining walls. Furthermore, given that the connectable structures are substantial structures, the applicant stated that their connection would call upon additional skills and knowledge in transportation of materials, site development and structural engineering concerned with the flow and conveyance of fluids, principally water. Accordingly the applicant concluded the skilled addressee required a combination of plumbing, building, hydraulic and construction engineering skills.
In response the opponent submitted that a requirement for the person skilled in the art to have building and construction engineering skills was elevating the requisite skills of the relevant person skilled in the art too highly in the present case.
The specification opens by describing the present invention as relating to connectable structures. The use may be residential or industrial, or in municipal parks and gardens, etc. While some embodiments relate to rainwater tanks for use at residential properties, the alleged invention is not so limited and may extend more generally to liquid storage reservoirs in wide-ranging applications, such as industrial or farming (page 1 of the specification, lines 16-20). Thus, industrial-scale applications are envisaged. This suggests the relevant person skilled in the art would have skills and experience in large-scale building and construction engineering, and would also be cognisant of materials transportation and site development issues. I favour the applicant’s approach as to the relevant person skilled in the art in the present case. I would regard the expert declarants from each side as representative members making up the skill set of such a person skilled in the art.
The opponent also indicated the evidence from both sides came from parties directly involved in the proceedings and thus the weight to be given to the evidence from both sides needed to be considered carefully. The applicant stated there was clearly no independence associated with the opponent’s witness and, as such, the opponent’s evidence was of little probative weight.
The expert declarants on both sides are directors of the respective companies that are parties in these proceedings. Moreover, the applicant’s expert is also the named inventor in the present case. In the circumstances, I am inclined to the position that the relative, probative value of the evidence from each side is substantially neutral.
Common General Knowledge
The opponent submitted the following formed part of the common general knowledge before the priority date. This included:-
(a)the use of conduits (e.g. PVC pipes) to connect water tanks (e.g. with other tanks or to an inlet or outlet);
(b)the use of rubber (resilient) seals in water tanks to allow both pivotal and longitudinal movement;
(c)the use of O-rings as seals around pipes, such as PVC pipes;
(d)the bidirectional flow of liquid through a port in a water tank, which enables equalisation of the flow of water between tanks, for example;
(e)rainwater tanks in operative connection with garden beds, pools or spas such that the garden beds, pools or spas are adapted to receive liquid from the rainwater tanks;
(f)rainwater tanks being positioned to provide a secondary function, such as a partition, supporting structure or retaining wall;
(g)the secondary function of a rainwater tank being unrelated to the type of coupling used; and
(h)that liquid reservoirs may take various shapes and form, and that the type of coupling of a rainwater tank is generally independent of the size/shape of tank.
The applicant submitted that the opponent had not established by evidence that the purported information formed part of the common general knowledge before the priority date.
At [7] of his evidence in support, Mr Willsher mentioned the existence of various types of rainwater tanks, including tanks of different shapes and tanks configured to provide a secondary function, for example as a partition or retaining wall. Mr Willsher specifically mentioned that wall-shaped rainwater tanks have existed for many years. While Mr Willsher has not directly expressed this as commonly known in the field, I am prepared to accept that such features of rainwater tanks were common general knowledge at the relevant time.
At [8] and [9] of his evidence in support, Mr Willsher stated that it has been common to provide multiple tanks, coupled to each other, as a way of increasing capacity and that almost all installations use PVC piping for such coupling. Moreover, he stated that the use of rubber seals when connecting tanks in such manner was very common as rubber seals allow for movement between the tank and the pipe. Mr Willsher indicated that it was well understood that such movement was unpredictable and may be in any direction. Mr Willsher further concluded by stating that the use of rubber seals around PVC pipes had been standard since before the priority date.
I am prepared to accept the following was common general knowledge at the priority date. Conduits, like PVC pipes, were used to connect water tanks. Rubber seals were used in water tanks for sealing purposes. While it may be said that rubber seals may allow for some relative movement between tank and pipe, I am not prepared to find that the use of rubber seals was common to allow both pivotal and longitudinal movement. Rather, I would expect the use of rubber seals would have been commonly understood for the purpose principally of preventing liquid egress.
The use of O-rings as seals around pipes, such as PVC pipes, was common general knowledge, as was the provision of rainwater tanks in operative connection with garden beds, pools or spas such that the garden beds, pools or spas are adapted to receive liquid from the rainwater tanks. Moreover I have already indicated above that I would accept that rainwater tanks being positioned to provide a secondary function, such as a partition, supporting structure or retaining wall, and that a liquid reservoir may take various shapes and form, were common general knowledge at the relevant time.
Ascertainment and Understanding of D1, D2 and D3
The applicant accepted the person skilled in the present art could be reasonably expected to have ascertained and, upon reading, understood each of D1-D3. On the other hand, the applicant submitted the person skilled in the art could not be reasonably expected to have regarded any of the documents as relevant to the problems addressed by the claimed invention. I am prepared to accept the person skilled in the present art could be reasonably expected to have ascertained and understood D1-D3. Moreover, in relating to pipe seal assemblies with other structures, I would find that the person skilled in the art could be reasonably expected to have regarded each of D1-D3 as relevant at the priority date.
US Patent 4103901 (“D1”)
As mentioned earlier, this document relates to an elastomeric moulded gasket that is particularly useful for resiliently supporting a sewer pipe in an opening through the wall of a manhole. It also provides a tight seal, closing the space between the wall of the opening and the pipe.
Figures 2 and 5 of D1 are illustrative and are reproduced below.
From the outer periphery of the gasket towards its centre, the gasket is shaped with a peripheral flange 10 of T shape in cross-section with a bulbous enlargement 13 at the base of the T. The top of the T circumferentially forms an outer band 11 of the gasket with a radially-extending web 12, while the bulbous enlargement 13 circumferentially forms an inner ring. The gasket then extends radially inwardly as an outer skirt 14 which is then reversely angled at 15 to form an inner skirt 16. At its innermost point 17, the inner skirt 16 merges with an O-ring or torus 18. The torus has a slightly smaller inner diameter than the outside diameter of the pipe it is expected to surround.
On installation, two mould rings are clamped together with the gasket in between. Concrete may then be applied around the outer surfaces of the mould rings in quantities sufficient to consolidate the parts and to fill the space between the mould rings and the opening in the manhole wall. Instead of embedding the gasket flange in concrete, it may be encased in plastic. This embodiment is illustrated in Figure 5. In this arrangement, the outer surfaces of the mould rings and the gasket flange 10 may be sprayed with liquid polyester resin mixed with glass fibres. Once set, the mould rings are removed. Thereupon, the layer of fibre-reinforced plastic 37 flares outwardly from each side of the gasket enabling cementing into place in the manhole opening and accommodating angular variations in the alignment of the pipe.
As background, the present specification consistently mentions the ongoing problems of expansion and contraction of pipe, port or tank and/or the independent movement of adjacent tanks. At least the former issues would seemingly have also been of concern with sewer pipes in respect to manholes. Moreover, given the combination of skills required of the person skilled in the art in this case across multiple disciplines, including substantial structures, as discussed above, I would expect such person at the relevant time to have readily appreciated the adaptability of the gasket arrangement of D1, for a sewer pipe and manhole, for use as a connection system for a liquid reservoir as claimed in claim 1 of the application. I consider that the claimed environment of use would not, on its own, render claim 1 inventive over D1.
The applicant submitted there was no disclosure of a connection system in D1. The applicant stated that connection or connect-ability, in the context of the application, referred to an attribute of the liquid reservoir, not the pipe or conduit. In this respect, the applicant argued that, whilst the application discussed a plurality of liquid reservoirs that may form structures and were joined together, there was no other structure, beyond the manhole, contemplated by D1 for connection.
At the hearing, the applicant’s point was not put substantially more clearly. It would appear the criticism related to the structure at the end of the sewer pipe remote from the manhole in D1 being open or undisclosed or, alternatively, that D1 only related to a sealing arrangement in respect to a manhole. In any case, it may be noted that the present claim 1 is no more definitive. That claim defines a connection system between a liquid reservoir and its exterior. I am satisfied that D1 discloses a connection system in the context of the present application.
D1 also includes a port, conduit, and sealing arrangement as presently claimed in claim 1. On the other hand, the applicant submitted that D1 was wholly silent of the barrier feature of claim 1. That is, there was no disclosure of a barrier between the conduit and the wall of the reservoir in the form of a moulding of resilient material accommodating the sealing means and comprising at least one flange adapted to engage with and extend across the internal walls of the port. On the other hand, the fibre-reinforced plastic 37, depicted in Figure 5, is positioned between the sewer pipe and the internal wall of the manhole and accommodates the sealing means 11-18. Moreover, the fibre-reinforced plastic has a degree of resilience, as evidenced by the above-mentioned flaring outwards of the plastic on removal of the mould rings. Furthermore, the flared parts 37 of the plastic may be said to be flanges adapted to engage with and extend across the internal walls of the port. I am satisfied a barrier, as claimed, is disclosed in D1.
The applicant then submitted that D1 does not disclose in combination the port, barrier and sealing means forming an arrangement for accommodating pivotal and longitudinal movement of the conduit in more than one direction with respect thereto so as to restrict contact between the conduit and the wall of the liquid reservoir and maintain the liquid tight seal. The applicant indicated that, while the gasket arrangement of D1 is stated to accommodate angular variation in the alignment of the pipe, the entire teaching of D1 is that this variation in alignment is at installation of the gasket only.
Column 5 lines 15-23 of D1 describe the gasket as affording a great measure of flexibility so that the pipe can enter the manhole from different angles, instead of being restricted to substantially radial lines, or lines normal to the manhole axis. The passage states that such misalignment, as often occurs, is easily accommodated. As such, variations of pipe alignment pivotally are accommodated. A further embodiment in D1 relates to situations where the pipe is of smaller diameter than the O-ring is designed to fit. In such cases, the tightness of the grip on the pipe may be increased by applying a conventional, circumferential tension band. Tension is adjusted by turning a screw journaled in a fitting on the band and that engages slots formed in the band. The tension band may be installed by sliding the spigot end of the pipe beyond its intended position, pulling the O-ring with it, for a distance sufficient to facilitate applying the band and tightening the screw. Thereafter, the pipe is slid back, carrying the gasket with it. As such, longitudinal movement of the conduit in more than one direction is accommodated.
The above discussion may be said to describe a gasket catering for and adjusting for misaligned pipes and different sizes of pipes on installation and, once fitted and fixed, there is no further scope for accommodating pivotal and longitudinal movement of the conduit in use. In respect to claim 1 of the application, there appears to be little in the claim restricting its scope to accommodating pivotal and longitudinal movement only in operation other than that the liquid tight seal be maintained.
In respect to pivotal movement, the flares of the fibre-reinforced plastic 37 in Figure 5 are clearly angled away from the location of the pipe. This would clearly accommodate pivotal movement of the pipe in use in more than one direction, for example up and down on each side of the O-ring, without contact with the wall whilst maintaining a liquid tight seal. Moreover the gasket is described in D1 (column 5 lines 8-15) as affording a substantial measure of flexibility and resilience, so that the pipe is firmly but yieldingly supported at all times, and is protected more effectively against shear stress.
The disclosed longitudinal movement of the pipe to enable insertion of a tension band may not be providing a liquid tight seal while the tension band is inserted. While there is no further longitudinal movement of the pipe explicitly discussed in D1, as mentioned above, the gasket affords a substantial measure of flexibility and resilience, and is protected more effectively against shear stress. Accordingly I would expect that the relevant person skilled in the art at the relevant time would have understood the capacity of the gasket of D1 to accommodate some longitudinal movement of the pipe in more than one direction, for example back and forth, with respect to the port and the fibre-reinforced barrier, and maintain the liquid tight seal.
I conclude that claim 1 lacks an inventive step over D1.
Claim 2 adds the feature of the at least one port comprising a recessed formation in cross-section. Additionally, claim 3 adds the feature of the recessed formation comprising a taper. The shape of the flared, fibre-reinforced plastic 37 in Figure 5 would clearly require the port in the manhole to have a recessed formation and be tapered to accommodate such shape. I conclude that claims 2 and 3 do not have an inventive step over D1.
Claim 4 defines the contact between the conduit and the liquid reservoir being limited to one or a combination of the sealing means and the barrier. D1 discloses contact with at least the sealing means. Claim 5 defines the operative connection of the sealing means with the at least one port being fixed or releasable. D1 discloses at least the former. Claim 6 defines the sealing means being integral with or separate to the barrier. D1 discloses a sealing means separate to the barrier. Moreover I consider the claimed alternatives would have been routine steps for the person skilled in the art at the relevant time. I conclude that claims 4-6 do not have an inventive step over D1.
Claim 7 defines the sealing means comprising an O-ring. D1 discloses a sealing means comprising an O-ring at item 18 of Figure 2. Accordingly I conclude that claim 7 does not have an inventive step over D1.
Claim 8 differs from claim 1 in defining a subsidiary apparatus, and a fluid connector intermediate the liquid reservoir and the subsidiary apparatus. Moreover claim 8 is silent in respect to the barrier as in claim 1. Furthermore claim 8 defines the capability of relative movement between the conduit and the port either pivotally or longitudinally while maintaining a liquid tight seal through movement of the conduit at least longitudinally in or out of the port.
As for claim 1, I consider that the environment of use claimed in claim 8, and more particularly what device is at each end of the connector, would not, on its own, render claim 8 inventive over D1. In this respect, I have also found above that rainwater tanks in operative connection with subsidiary apparatus such as the claimed garden beds, pools or spas was common general knowledge. Moreover it may be noted that the relative movements defined in claim 8 are broader than in claim 1. Specifically, the relative movement in claim 8 need only be capable either pivotally or longitudinally, but in the longitudinal case the liquid tight seal is maintained in either the in or out direction. In the case of claim 1, I noted the disclosure of the pivotal capability of the pipe in D1 and that a person skilled in the art at the relevant time would have understood the capacity of the gasket of D1 to accommodate some longitudinal movement of the pipe in more than one direction, and maintain the liquid tight seal.
I similarly conclude that claim 8 does not have an inventive step over D1.
Claim 9 is an omnibus claim defining a system substantially as described with reference to at least one of the accompanying drawings. The words “substantially as described” place attention on the body of the specification to provide the necessary definition of the invention and, more particularly, on the essential features of the invention mandated by the specification (GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser Healthcare (UK) Ltd, [2016] FCAFC 90, at [69]-[80]).
As mentioned above, the present specification consistently mentions the ongoing problems of expansion and contraction of pipe, port or tank and/or the independent movement of adjacent tanks. As such, the essential features of the invention may be found in the consistory statement of a first aspect of the invention (page 4 line 27 to page 4a line 12). This statement reflects claim 1 of the application. Notably, in addressing the above problems, the combination of the port, barrier and sealing means form an arrangement for accommodating pivotal and longitudinal movement of the conduit with respect thereto so as to restrict contact between the conduit and the reservoir wall and maintain a liquid tight seal.
As noted above, claim 9 also draws attention to at least one of the accompanying drawings. The pivotal and longitudinal movement capability of the conduit is shown in Figures 2, 2A, 2B and 6B-9C, any of which may thus stand as a reference for illustratively qualifying the essential features of the invention and thus the scope of claim 9. By example, Figure 7C is reproduced below.
In comparing this illustration with Figure 5 of D1 above, the concept enabling pivotal and longitudinal movement of the conduit, whilst maintaining a liquid tight seal, is the same. For example, the same tapering away at the port edges of the reservoir walls from the conduit in Figure 7C is evident in the flared parts 37 of the fibre-reinforced plastic in Figure 5 of D1.
I conclude that claim 9 also does not have an inventive step over D1.
US Patent 4333662 (“D2”)
As mentioned earlier, this document relates to a gasket for sealing the annular gaps between pipes and structures into which the pipes extend. More particularly, the gaskets are for use in sealing connections between sewer pipes and underground structures such as manholes.
Figure 3 of D2 is illustrative and is shown below.
The seal 15 comprises a hollow annular ring 20 which surrounds the outer periphery of the pipe 11. The ring 20 is integrally connected to an annular base 21 by means of a narrow, flexible, continuous neck 22. The seal is preferably fabricated of relatively soft rubber or other resilient material.
The neck 22 affords both lateral movement of the ring 20, that is lengthwise of the pipe, and radial movement of the ring 20, that is outward of the pipe, during installation. By sliding the pipe axially into the manhole and then withdrawing the same slightly, the sealing ring 20 is disposed toward the outside of the manhole. With the ring 20 thus disposed as shown in Figure 3, that is offset to the left or outside the manhole, a pressure pocket 23 is formed on the outside of the manhole. The pressure pocket functions, when fluid pressure is applied in the rightward or inward direction, to force the ring 20 more tightly into engagement with the outer periphery of the pipe 11 and thereby to effect a tighter radial compression seal.
The seal prevents the pipe from being damaged in the event that excessive downward shear loads should force the pipe downwardly and cause the pipe to bottom-out. To this end, the seal base 21 has a pair of continuous interior surfaces 25 and 26 which diverge at a dihedral angle and extend outwardly and radially with respect to the seal ring 20. The surfaces 25 and 26 extend laterally of the neck 22 beyond the outer extremity of the ring 20 so that the ring 20 can be compressed and engaged against one or the other of the surfaces 25 or 26, as shown in Figure 5.
In this way, an alignment of the pipe that is angled with respect to its receiving port can be accommodated, whether due to downward shear loads or a tilt of the pipe with respect to the manhole port. Where the pipe is inclined and urged downwardly toward the bottom of the port, the structure ensures the interposition of a layer of resilient material between the underside of the pipe and the bottom of the port thereby protecting the pipe from damage.
100. For firm mounting of the seal 15 in place in the manhole, the opposite sides of the base 21 of the seal are provided with a pair of lateral recesses or grooves 27 and 28. A pair of mounting rings 30 and 31 cooperates with the base 21. Each mounting ring, for example ring 30, has a flange 30a which is received within the recess 27 and which extends outwardly therefrom to form a lateral dihedral extension of the seal base surface 25. The mounting ring 30 also has an in-turned flange 30b which extends downwardly and laterally inward in the manhole with respect to the seal 15 to terminate in spaced relation with respect to the corresponding flange 31b of the companion mounting ring 31. The mounting rings are preferably fabricated of a plastic material which forms a mechanical bond in the concrete of the manhole.
101. As for D1, I would expect the person skilled in the art at the relevant time to have readily appreciated the applicability of the gasket arrangement of D2, for a sewer pipe and manhole, for use as a connection system for a liquid reservoir as claimed in claim 1 of the application. I consider that the claimed environment of use would not, on its own, render claim 1 inventive over D2.
102. D2 clearly discloses a port, conduit and sealing arrangement as claimed in claim 1 of the application. Moreover, the mounting rings 30 and 31 substantially fit the definition of the barrier of claim 1. The mounting rings 30 and 31 lie between the conduit and the internal wall, and accommodate the sealing means. Moreover the respective flanges 30a and 31a of rings 30 and 31 are adapted to engage with and extend all the way across the internal walls of the port.
103. The applicant submitted the arrangement of D2 only accommodated insertion of a pipe from one direction with a small movement in the opposite direction to set placement of the pressure pocket. Thereafter the arrangement supposes a static seal in place for the sewer pipe against the manhole opening. The specific nature of the pressure pocket emphasises its one-way operation for each installation of a pipe.
104. As noted in the discussion over D1, claim 1 of the application appears to have little restricting its scope to accommodating pivotal and longitudinal movement only in operation other than that the liquid tight seal be maintained.
105. In respect to pivotal movement, the above discussion and illustration of the flexure of the neck 22 and compressibility of the ring 20 would clearly accommodate pivotal movement of the pipe on installation or in use in more than one direction, for example up and down on each side of the ring, without contact with the wall whilst maintaining a liquid tight seal. Whilst the ring 20 and neck 22 may be compromised in time with such movement, there would appear to be nothing to prevent such movement being accommodated for some initial time in use whilst maintaining the liquid tight seal.
106. The disclosed longitudinal movement of the pipe is stated to occur during installation of the pipe and form the pressure pocket 23 as shown in Figure 3. Nonetheless, given the flexibility of the ring 20 and the neck 22, it would appear from Figure 3 that longitudinal movement of the pipe is within the arrangement’s capacity in use. While there may be no apparent longitudinal movement of the pipe with respect to the ring 20 in use, it would seemingly occur relative to the port and barrier, or mounting rings 30 and 31. Accordingly I would expect that the relevant person skilled in the art at the relevant time would have understood the capacity of the gasket of D2 to accommodate some longitudinal movement of the pipe in more than one direction, for example back and forth, with respect to the port and the barrier, and maintain the liquid tight seal.
107. I conclude that claim 1 lacks an inventive step over D2.
108. For similar reasons as for D1, I conclude that claims 2-9 do not have an inventive step over D2.
US Patent 4951914 (“D3”)
109. Claim 1 of the application differs from D3 by defining an arrangement for accommodating pivotal and longitudinal movement of the conduit in more than one direction with respect thereto so as to restrict contact between the conduit and the wall of the liquid reservoir, and maintain the liquid tight seal. Claim 8 defines the capability of relative movement between the conduit and the port either pivotally or longitudinally while maintaining a liquid tight seal through movement of the conduit at least longitudinally in or out of the port.
110. D3 discloses a seal wall member being equipped with an integral wiper blade having the necessary flexure to maintain a pipe-sealing configuration in use. There is no apparent discussion of the flexure being for the purpose of or accommodating pivotal or longitudinal movement with respect to the port, barrier or sealing means. Moreover, the arrangement of D3 does not appear to allow for either such movement to any substantial degree. I consider the relevant person skilled in the art would not by routine steps have adapted the arrangement of D3 to accommodate any such movement at the relevant time.
111. I conclude the claimed invention has an inventive step over D3.
SECTION 40 - FULL DESCRIPTION AND BEST METHOD
112. The opponent indicated that claim 8 recited a subsidiary apparatus adapted to receive liquid from the reservoir tank using a fluid connector intermediate the at least one reservoir tank and the subsidiary apparatus. The opponent submitted that the specification provided no disclosure of how this would be performed. While the specification described couplings between reservoirs of adjacent tanks, specifically in the context of garden beds, and the pumping of water, the opponent stated that no mention is made of how the pump is coupled to the reservoirs, let alone using the coupling defined in claim 8. Moreover the opponent submitted that the specification did not disclose any connection between a reservoir and a water feature, pool or spa, let alone using the claimed sealing means. On the contrary, the opponent noted the specification described the reservoirs themselves functioning as fish ponds, small swimming pools and spas, and that this was clearly opposite to the separate reservoir and subsidiary apparatus recited in claim 8.
113. Earlier I found the relevant person skilled in the art in the present case required a combination of skills in plumbing, building, and hydraulic and construction engineering. Moreover the common general knowledge, as discussed above, included the provision of rainwater tanks in operative connection with garden beds, pools or spas. I would find the opponent’s complaint would have been readily addressed by the relevant person, applying their skills and knowledge, at the relevant time. I conclude that this ground of opposition fails.
SECTION 40 - CLARITY
114. The opponent submitted that claim 8 lacked clarity as it was not clear how the fluid connector can simultaneously be located both intermediate the reservoir and the subsidiary apparatus, and in the reservoir.
115. The opponent appears to have adopted a strained construction of the claim. The connector clearly interconnects two items, that being that it lies intermediate at least one reservoir tank and the subsidiary apparatus. Moreover an aspect of the connector, that being the one or more seals, is seated at the periphery of a port in the at least one reservoir tank. That is, while the connector interconnects two items, it also has a part or parts of it seated in a port of at least one of the items. One would expect that would be natural to make the connection whole. I see nothing incongruent in the definition of the alleged invention in the present claim 8. I conclude that claim 8 is clear.
SECTION 40 - FAIR BASIS
116. The opponent contended that the claims lacked fair basis in the light of the specification. The opponent stated that, when the specification was read as a whole, it was clear that the invention related to connecting liquid reservoirs with each other. The background described difficulties associated with interconnecting two or more liquid reservoirs, and the detailed description clearly outlined the interconnection of multiple liquid reservoirs. The opponent stated that the claims did not include the limitation of connecting liquid reservoirs with each other. Specifically, claims 1 to 7 defined only one structure, while claim 8 interconnected a reservoir with a subsidiary apparatus.
117. It may be that much of the specification relates to interconnected tanks and dealing with the independent movement that may arise between them. On the other hand, page 14 lines 8-11 of the specification state that the embodiments described in the specification can be used in conjunction with liquid storage reservoirs and structures of the type disclosed in Australian patent application 2008202262, which disclosures are herein incorporated by cross reference. Unfortunately the citation of that application is in error. The subject matter of that application is unrelated to the present subject matter. Consequently there is no useful disclosure to be cross-referenced. It may be that application 2008202061 was meant.
118. In any case, the present specification contains several references indicating that the alleged invention is not restricted to the interconnection of multiple reservoirs. For example, the consistory statement, reflecting claim 8, appears at page 4a lines 13-34. Additionally, the sealing means is preferably adapted for engagement with an internal wall of the liquid reservoir (page 5 lines 7 and 8, with my emphasis). Moreover, the other structure may comprise a further liquid reservoir or another structure that receives liquid via the conduit (page 6 lines 32 and 33). In a particularly preferred embodiment, the liquid reservoir is a rainwater tank combined with a subsidiary apparatus that comprises a garden bed (page 7 lines 28-30).
119. I conclude the present claims are fairly based.
MANNER OF MANUFACTURE
120. The opponent contended that claim 8 was not for a manner of manufacture. The opponent noted that claim 8 recited a subsidiary apparatus, that being a garden bed, a pool or a spa, and a water reservoir including a connector. In citing the British Celanese Ltd v Courtaulds Ltd decision, (1935) 52 RPC 171, the opponent stated the garden bed, coupler and reservoir of claim 8 were old integers, where each performed its own proper function independently and thus claim 8 was not for a manner of manufacture.
121. The above decision further adds that where the old integers when placed together have some working inter-relation producing a new or improved result, then there is patentable subject matter in the idea of the working inter-relation. In the present case, the opponent’s position appears difficult. Assuming that each of the integers identified by the opponent was old, the very presence of a coupler, or a fluid connector with a sealing arrangement as in claim 8, for conveying fluid between the reservoir and the subsidiary apparatus, indicates that the claimed features are not functioning completely independently.
122. On the face of it, I conclude that claim 8 is for a manner of manufacture.
INFORMAL PROPOSED AMENDMENTS
123. In submissions, the applicant included a number of proposed amendments to the claims to address the Section 40 matters raised by the opponent against the claims. At the hearing, the opponent indicated that those proposed amendments would overcome its concerns in respect to those matters. On the other hand, I have found against the claimed invention, in its present form, in respect to inventive step, and not on any Section 40 matters. Moreover the applicant’s informal amendments would not appear to overcome the inventive step ground. Consequently, I make no further comment on these informal amendments.
124. I will allow the applicant an opportunity to formally propose suitable amendments under Section 104 to overcome the findings of this decision.
CONCLUSION
125. I have found that claims 1-9 do not have an inventive step over D1 or D2, considered individually.
126. I allow the applicant two (2) months from the date of this decision to propose suitable amendments under Section 104 to overcome these findings.
COSTS
127. Both parties sought their costs in these proceedings. I see insufficient reason to depart from the normal approach that costs should follow the event. I award costs in accordance with Schedule 8 against the applicant, Aranooc Pty Ltd.
M. G. Kraefft
Delegate of the Commissioner of Patents
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