Udf Distribution v Jacques Venter - [2023] APO 53

IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
UDF Distribution v Jacques Venter [2023] APO 53
Patent Application: 2020296356

Title:Payload delivery mechanism suitable for use with a drone

Patent Applicant: Jacques Venter

Opponent:UDF Distribution

Delegate:Xavier Gisz

Decision Date: 26 October 2023

Hearing Date: Written submissions filed on 15 June 2023

Catchwords: PATENTS - opposition to the grant of the patent under s 59 – opposed on the basis of inventive step, sufficiency, clarity, and support – all grounds of opposition are unsuccessful – costs awarded

Representation: Patent attorney for the applicant: Meyer West IP

IP AUSTRALIA
AUSTRALIAN PATENT OFFICE

Patent Application: 2020296356

Title:Payload delivery mechanism suitable for use with a drone

Patent Applicant: Jacques Venter
Date of Decision: 26 October 2023
DECISION

The opposition fails on all grounds raised in this opposition. Subject to appeal, I direct the application proceed to grant.
I award costs according to Schedule 8 against UDF Distribution.
REASONS FOR DECISION

Background

Application 2020296356 in the name of Jacques Venter (the Applicant) entered national phase on 30 June 2021 from the PCT application PCT/IB2020/055462 (publication number WO 2020/254921) with an earliest priority date of 19 June 2019. The Application was advertised as accepted on 2 September 2021.
A Notice of Opposition to the grant of the patent was filed by UDF Distribution (the Opponent) on 2 December 2021. The Opponent filed a Statement of Grounds and Particulars (the SGP) in support of its opposition on 2 March 2022.
Evidence in support was filed on 2 June 2022 comprising a declaration by Nigel Meadows and accompanying exhibits NM-1 to NM-7. The documents that accompanied the Statement of Grounds and Particulars are also treated as evidence in support of the opposition.
No Evidence in Answer was filed.
On 30 September 2022 the parties were informed that the matter could be heard on the basis of written submissions. On 24 February 2023 a schedule for providing submissions was set out. The Opponent was given four weeks to provide submissions in support, the Applicant then had four weeks to provide submissions in answer, and the Opponent then had two weeks to provide submissions in reply.
The Opponent did not provide any submissions in support.
On 8 March 2023 the patent attorney (AJ Park) for the Opponent informed IP Australia that they were no longer representing the Opponent. On 4 April 2023, in an official correspondence, the Delegate noted that this may have caused an interruption in the preparation of submissions, and provided the Opponent until 11 April 2023 to provide submissions in support.
On 13 April 2023 the new attorney (Foundry Intellectual Property) for the Opponent requested a month from that date to provide submissions in support. On 14 April 2023 the Delegate allowed the Opponent until 15 May 2023 to provide submissions in support. No submissions in support were received.
On 18 May 2023 the Delegate informed the Applicant that they had 4 weeks to provide submissions in answer. On 15 June 2023 the Applicant filed their submissions in answer.
On 24 July 2023 the Delegate asked the Opponent if they intended to file submissions in reply. On 26 July 2023 the attorney (Foundry Intellectual Property) for the Opponent advised that they no longer represented the Opponent.
The Delegate attempted to contact the Opponent via phone and mail but did not receive a response from the Opponent on whether they intended to file submissions in reply. No submissions were received. On 8 August 2023 the Delegate informed the parties a decision would be made on the basis of the evidence and submissions that had been received.
Evidence
Evidence in Support comprises a declaration by Nigel Meadows and accompanying exhibits NM‑1 to NM-7.
The specification
The first sentence of the specification states:
“THIS invention relates to a payload delivery mechanism suitable for use with a drone and more particularly, but not exclusively, to a payload delivery mechanism suitable for delivering fishing bait or a fishing line to a desired location.”
The description goes on to provide an explanation of the problems the present invention overcomes (page 2 line 8 to page 3 line 12):
“It would therefore make sense to utilise the benefits of a drone (reaching distance, speed, maneuverability [sic], repeatability) for the purposes of delivering fishing lines at a required location. However, conventional drones are not equipped to give effect to this required functionality. In particular, the drones that are commercially available to the ordinary consumer do not include a payload delivery mechanism. To this end, many retrofit solutions have been proposed where a release mechanism is secured to a body of the drone, which release mechanism is then remotely actuated.
Some of the retrofit payload delivery devices include a load carrying and release mechanism for releasably carrying the load while the drone is on its way to a desired location. The load carrying and release mechanism is actuated by an actuating mechanism, for example in the form of a servo motor (or other suitable actuator). The servo motor typically actuates a push / pull rod that is connected to a drive shaft of the servo motor. The push / pull rod is therefore displaceable between a first position in which it is configured to carry a load, and a second position in which it is configured to release a load. This type of selectively actuated load carrying and release mechanism generally works well, but is known to fail at times if, for example, the servo motor fails, or the push rod gets stuck. Also, this type of mechanism is not capable of releasing the fishing line under emergency conditions, for example should the reel of the fishing rod lock up.
Release mechanisms have been proposed that releases [sic] a fishing line under the emergency conditions mentioned above (i.e. when a predetermined tension is exerted on the fishing line, and hence the release mechanism), but such mechanisms are not desirable for use under normal release conditions due to the plucking or snapping action of such a release (for example, when the fishing lines overcomes an internal bias of the release mechanism). The impact forces exerted on the drone when using this type of delivery mechanism as a normal release mechanism is not ideal, and can potentially damage the drone - in particular if this happens regularly. Also, such release mechanisms will only work in the fishing environment, and not in other application where controlled release is required.”
The invention in the preferred embodiment is two opposing release elements: an actively controlled release element, and a passively controlled release element. The actively controlled release element has an actuator which can move the element from a retaining position to a release position. The passively controlled release element has a spring biasing the element to the retaining position.
In a first release mode, the actuator moves the actively controlled release element from the retaining position to the release position. In a second release mode, a predetermined external load causes the passively controlled release element to move to the release position.
The preferred embodiment of the invention is shown in figures 3-5:
The corresponding description of this embodiment states at page 10 line 1 to page 11 line 6:
“The first sphere 30 is displaced between the retaining and release positions by way of a remotely actuatable actuating mechanism. In this embodiment the actuating mechanism is an electro mechanical actuating mechanism that includes a servo motor 31 located in a distal zone 11.2 of the housing 11. The servo motor 31 is powered by a battery 34, and controlled by control means on a PC board 35. The servo motor is actuated remotely. An offset cam 33 is located on a drive shaft 31.1 of the servo motor 31. A push rod 32, which is slideably [sic] located in a channel 12 provided in the housing 11, is displaceable by the cam towards the first sphere 30 when the servo motor is actuated (as shown in Figure 4). When the servo motor is deactivated (or returned to its original state) the cam will rotate through 180 degrees from the position shown in Figure 4, so as to allow the push rod 32 to be displaced away from the first sphere 30. In some embodiments the push rod may be biased towards the cam 33, but in a preferred embodiment there will be no biasing element, and the first sphere 30 will simply push the push rod towards the cam 33 when a load is exerted on the first sphere 30 when the actuating mechanism is in the release position.
In the embodiment shown in the drawings, the total travel of the push rod 32, and hence the first sphere 30, will be about 1.5mm.
The second sphere 40 is biased towards the secure position by way of at least one biasing element, in this case a spring 41 that exerts a force onto the sphere 40. The compression of the spring 41, and hence the force exerted thereby, is adjustable in order for the closing force (or inversely described, the release force) of the sphere 40 to be adjustable. A control knob 42 is provided on the housing 11, and may for example rotate a threaded element 43 that is in turn rotated in order to adjust the position of a plunger 44 of the spring 41. The plunger 44 acts on an operatively outer end of the spring in order to reduce or increase the spring compression. An operatively inner end of the spring acts on a profiled spigot 45, which in turn abuts the second sphere 40. In use, as small gap (in this case about 0.5mm) is left between the spigot 45 and the end of the housing, meaning that the second sphere 40 will be displaced about 0.5mm towards the first sphere 30 when the first sphere is displaced to a release position. The gap between the two spheres will therefore be about 1 mm during normal release.”
The claims
Claim 1 (the only independent claim) is as follows:
A payload delivery mechanism suitable for use with a drone, the payload delivery mechanism including:
a load carrying and release mechanism which is displaceable between a retaining position, in which at least part of the payload is retained by the load carrying and release mechanism, and a release position, in which the at least part of the payload is releasable from the load carrying and release mechanism;
the load carrying and release mechanism including two adjacent release elements that are displaceable between the retaining position and the release position, with an axis of movement of the two adjacent release elements being substantially in a same line; and
an actuator for displacing the load carrying and release mechanism from the retaining position to the release position; and
a biasing element for biasing the load carrying and release mechanism towards the retaining position;
the load carrying and release mechanism including a first release mode and a second release mode,
wherein, in the first release mode, the load carrying and release mechanism is displaced from the retaining position to the release position by the actuator that is in use electrically actuated; and
wherein, in the second release mode, the load carrying and release mechanism is displaced, against the bias exerted by the biasing element, from the retaining position to the release position when a predetermined maximum external load is exerted on the load carrying and release mechanism.
For convenience I have split claim 1 into the following eight features. I have put emphasis in bold on the most significant words in each feature to provide a quick understanding of each feature:
(i)     A payload delivery mechanism suitable for use with a drone, the payload delivery mechanism including:
(ii) a load carrying and release mechanism which is displaceable between a retaining position, in which at least part of the payload is retained by the load carrying and release mechanism, and a release position, in which the at least part of the payload is releasable from the load carrying and release mechanism;
(iii)      the load carrying and release mechanism including two adjacent release elements that are displaceable between the retaining position and the release position, with an axis of movement of the two adjacent release elements being substantially in a same line; and
(iv) an actuator for displacing the load carrying and release mechanism from the retaining position to the release position; and
(v)   a biasing element for biasing the load carrying and release mechanism towards the retaining position;
(vi) the load carrying and release mechanism including a first release mode and a second release mode,
(vii)     wherein, in the first release mode, the load carrying and release mechanism is displaced from the retaining position to the release position by the actuator that is in use electrically actuated; and
(viii)    wherein, in the second release mode, the load carrying and release mechanism is displaced, against the bias exerted by the biasing element, from the retaining position to the release position when a predetermined maximum external load is exerted on the load carrying and release mechanism.
Opposition under section 59
The relevant legislation
The present application has a filing date of 10 June 2020 so substantive amendments to the Patents Act 1990 (the Act) brought about by the Intellectual Property Laws Amendment (Raising the Bar) Act 2012, effective 15 April 2013, apply in the present case.
Grounds of opposition
The grounds of objection in the Statement of Grounds and Particulars are: Inventive step, sufficiency, clarity, and support.
Lack of clear enough and complete enough disclosure – s 40(2)(a)
Legal principles
Section 40(2)(a) states:
(2) A complete specification must:
(a) disclose the invention in a manner which is clear enough and complete enough for the invention to be performed by a person skilled in the relevant art;
In order to comply with sec 40(2)(a), the complete specification must provide sufficient information to enable the skilled person to perform the invention over the whole width of the claims, without undue burden or the need for further invention. (see the Explanatory Memorandum for the Raising the Bar Act).
Consideration
The SGP states:
“The Opposed Specification does not provide any guidance as to the load required to activate the second release mode. It states only that when the pulling force of the payload (through the fishing line) exceeds the release force of the second sphere 40, the sphere will be displaced (by the fishing line or linkage) to the release position and the fishing line will escape under gravity (page 12). Therefore, the threshold for the “predetermined maximum external load” must be determined from the characteristics of the biasing element and second sphere 40, having regard to the other parameters of the payload delivery mechanism. These are not defined in terms of their carrying load capacity.”
Mr Meadows states in his declaration at paragraph 174:
“There are two elements of the release mechanism but both of them rely on the same mechanical interface. One thing holding it but actuated by two different methods (servo and pull). I do note that there is no guidance within the specification as to what “predetermined maximum external load” might mean or might be calculated.”
The Applicant states in their submissions:
“The Opponent asserts that reference to “predetermined maximum external load” without further instruction and guidance results in a lack of sufficiency.
It will be appreciated that each UAV has its own maximum load capacity. The user can set the load in accordance with a particular application, which can be anything between a load that is almost zero up to a load that is as heavy as the drone allows. It would not be difficult for a person skilled in the art to determine a required setting for a required application, and no undue experimentation would be required.
As set out in more detail in Section B, it is informative that the Opponent’s expert refers to “predetermined tension” in paragraph 76 of his statement when describing D2 without such statement apparently introducing a lack of clarity or insufficiency in his assessment of the prior art.”
Although the specification does not explain how the “predetermined maximum external load” is determined, I consider it would be rudimentary experimentation to determine the load required to overcome a particular spring force (or alternatively, the spring force required to maintain a particular load).
I do not consider this to be an “undue burden” on the person carrying out the disclosed invention. Consequently, I consider this aspect of the invention to have a clear enough and complete enough disclosure.
Lack of Support – s 40(3)
Legal principles
Subsection 40(3) requires that the claim(s) must be supported by matter disclosed in the specification. In Merck Sharp & Dohme Corporation v Wyeth LLC (No 3) [2020] FCA 1477 (Merck), Burley J explored the requirement of support at [546]-[547]:
“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 breadth of the monopoly claimed”.
In CSR Building Products Limited v United States Gypsum Company [2015] APO 72 (CSR) that was referred to with approval in Merck, the delegate Dr Barker formulated the following test in order to determine whether a claim is supported by the description.
•Construe the claims to determine the scope of the invention as claimed,
•Construe the description to determine the technical contribution to the art, and
•Decide whether the claims are supported by the technical contribution to the art.
An expanded approach was taken in Evolva SA [2017] APO 57 (Evolva). Per the decision in Evolva, the third consideration of enablement set out in CSR was assessed according to the following criteria:
•Is it plausible that the invention can be worked across the full scope of the invention?
•Can the invention be performed across the full scope of the claims without undue burden?
The approach taken in CSR and Evolva, received approval in Cytec Industries Inc. v Nalco Company [2021] FCA 970 at [145]-[147] and Jusand Nominees Pty Ltd v Rattlejack Innovations Pty Ltd [2022] FCA 540 at [352]-[369].
Consideration
The SGP states at paragraphs 3.5.2:
“Claim 1 lacks support. In particular:
Claim 1 recites a payload delivery mechanism suitable for use with a drone and having a second release mode, wherein in the second release mode, the load carrying and release mechanism is displaced, against the bias exerted by the biasing element, from the retaining position to the release position when a predetermined maximum external load is exerted on the load carrying and release mechanism.
“Predetermined maximum external load” is not defined in the specification or claims. This term implies that the user must determine an external load required for the second release mode to be activated. This in turn implies a load that can be measured in some way.
The Opposed Specification states only that when the pulling force of the payload (through the fishing line) exceeds the release force of the second sphere 40, the sphere will be displaced (by the fishing line or linkage) to the release position and the fishing line will escape under gravity (page 12).
The Opposed Specification therefore refers to a “release force” as opposed to a “predetermined maximum external load”.”

The Applicant states in their submissions at section A.9:
“The Opponent alleges that claim 1 lacks support, because the specification refers to a “release force”, whereas the claims refer to the term “predetermined maximum external load”.
It is submitted by the Applicant that a load will result in a force to be exerted on the release mechanism, and that a maximum external load will accordingly exert a force at which the load is released. It is therefore submitted that “maximum external load” is supported in the specification in context of the meaning of a release force.”
As discussed above in relation to sufficiency, the “predetermined maximum external load” is enabled by the specification when understood by a person skilled in the art. This aspect of the claim is supported by the specification.
Lack of Clarity – s 40(3)
Legal principles
Subsection 40(3) requires that the claims must be clear. Where it is impossible to ascertain the scope of invention the claims should be found to lack clarity (see Decor Corp v Dart Industries [1988] FCA 399; 13 IPR 385 at 400). A claim will lack clarity if a third party would be unable to ascertain whether an act would fall within the scope of the claim (Monsanto Co v Commissioner of Patents (1974) 48 ALJR 59).
Consideration
Predetermined maximum external load
The SGP states at paragraphs 3.4.2.1 and 3.4.2.2:
“Claim 1 recites a payload delivery mechanism suitable for use with a drone and having a second release mode, wherein in the second release mode, the load carrying and release mechanism is displaced, against the bias exerted by the biasing element, from the retaining position to the release position when a predetermined maximum external load is exerted on the load carrying and release mechanism.
“Predetermined maximum external load” is ambiguous. It is not defined in the specification or claims.”
The Applicant’s submissions state at paragraph A.8a:
“At paragraph 3.4.2.2 [of the SGP], it is asserted that the phrase “predetermined maximum external load” is ambiguous. The Applicant repeats the statements made above that it will be appreciated that each UAV has its own maximum load capacity. The user can set the load in accordance with a particular application, which can be anything between a load that is almost zero up to a load that is as heavy as the drone allows. It would not be difficult for a person skilled in the art to determine a required setting for a required application, and no undue experimentation would be required.”
The load needed to overcome the spring force so as to release the held object is “predetermined” in that it can be set in a reliable manner. I consider this to be clear.
Is Claim 7 redundant?
The SGP states at paragraph 3.4.3:
“Claims [sic] 7 is redundant because it is the same as claim 5 except for its dependency.”
The Applicant states in their submissions at paragraph A8b:
“At paragraph 3.4.3, it is asserted that claim 7 is redundant because it is the same as claim 5 except for its dependency. The Applicant disagrees. The different claim dependency means that the scope of the claims is different, and that claim 7 is therefore not redundant.”
The relevant claims are reproduced below:
2. The payload delivery mechanism of claim 1 wherein the two adjacent release elements are located adjacent one another when in the retaining position, and wherein the two release elements are spaced apart when in the release position.
3. The payload delivery mechanism of claim 2 wherein the actuator acts on a first release element, and wherein a second release element is displaceable away from the first release element, and is biased towards the first release element.
4. The payload delivery mechanism of claim 3 wherein the second release element is biased towards the first release element by way of the biasing element.
5. The payload delivery mechanism of claim 1 wherein the biasing element used to bias the second element towards the retaining position is in the form of a spring.
7. The payload delivery mechanism of claim 4 wherein the biasing element used to bias the second element towards the retaining position is in the form of a spring.
Although claims 5 and 7 define the same additional features, claims 5 and 7 have different appendencies. Because there is a prima facie difference in scope of claim 5 (which is dependent directly on claim 1) and claim 7 (which is dependent on claims 1, 2, 3 and 4), I consider claim 7 to not be redundant in light of claim 5 and consequently is clear and succinct.
Actuator
The SGP states at paragraph 3.4.4:
“Claim 14 is unclear. In particular:
Claim 14 recites the payload delivery mechanism of claim 1 wherein the actuator is an electrical, mechanical, or electro-mechanical actuator.
Claim 1 recites a payload deliver mechanism suitable for use with a drone having an actuator for displacing a load carrying and release mechanism for a retaining position to a release position, wherein the actuator is electrically actuated.
It is not clear whether the electrical actuation referred to in claim 1 is the same as the electrical actuation referred to in claim 14.”
The Applicant submissions state at paragraph A.8c:
“At paragraph 3.4.4, it is asserted that any type of actuator, i.e., electrical (servo), mechanical (for example a rack and pinion) or electro-mechanical (combination) can still be electrically actuated. The Applicant submits that claim 14 relates to the type of actuator and claim 1 mentions how the actuator is itself actuated, and the two claims are therefore not mutually exclusive.”
Claim 1 defines “…the actuator that is in use electrically actuated”. Claim 14 which is dependent on claim 1 defines “the actuator is an electrical, mechanical, or electro-mechanical actuator”.
The Opponent’s argument is that the actuator options in claim 14 could be referring to a different actuator to the one defined in claim 1“…the actuator that is in use electrically actuated”.
I consider the three types of actuators (electrical, mechanical, or electro-mechanical actuator) defined in claim 14 could all be electrically actuated, and are antecedent to the actuator defined in claim 1. Claim 14 provides only a minor limitation on claim 1 since it is hard to envisage an electrically actuated actuator that is not one of: electrical, mechanical, or electro-mechanical actuator. It is plausible that claim 14 excludes from its scope things such as chemical, heat‑activated, and tumescent actuators. I consider this aspect of the claim is clear.
Inventive step
Legal principles
It is a requirement of subsection 18(1) of the Act that the invention, so far as claimed in any claim, involves an inventive step. Subsection 7(2) 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:
For the purposes of this Act, an invention is to be taken to involve an inventive step when compared with the prior art base unless the invention would have been obvious to a person skilled in the relevant art in the light of the common general knowledge as it existed (whether in or out of the patent area) before the priority date of the relevant claim, whether that knowledge is considered separately or together with the information mentioned in subsection (3).
Subsection (3) prescribes the information that may be considered as:
The information for the purposes of subsection (2) is:
(a) any single piece of prior art information; or
(b) a combination of any 2 or more pieces of prior art information that the skilled person mentioned in subsection (2) could, before the priority date of the relevant claim, be reasonably expected to have combined.
Prior art information is information that is part of the prior art base, and the prior art base is information in a document that is publicly available and information made publicly available through doing an act. Once the common general knowledge and prior art information have been identified, the question is whether the claimed invention would have been obvious. Various verbal tests have been set out to explain this question. In Wellcome Foundation Ltd v V.R. Laboratories (Aust.) Pty Ltd [1981] HCA 12; (1981) 148 CLR 262 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."
When properly applied, the problem-solution approach has the clear benefit of providing a structured approach that largely avoids the possibility for undesirable ex post facto analysis of the claimed invention.
Consideration
Is Mr Meadows qualified to give evidence in this opposition?
The Applicant states in their submissions in section B.3 first two paragraphs:
“The Opponent has submitted a declaration by Mr Nigel Meadows dated 1 June 2022 (the Meadows Declaration), as complete Evidence in Support in these proceedings. The alleged expert, Mr Meadows, holds a commercial pilot’s licence and was also a drone pilot in the Royal Air Force. While his credentials as a drone pilot are acknowledged, they are not relevant insofar as the invention in question is concerned. It is clear from paragraphs 9 to 15 of the Meadows Declaration that, outside of the actual operation of a drone, Mr Meadows focusses on providing advice regarding the creation of drone regulations, the safe operation of drones, and risk assessment.
While Mr Meadows may be able to identify a risk or a desired outcome on a high-level, it is clear from his own submission that he is not a person skilled in the art of the invention. The Meadows Declaration does not refer to any engineering, mathematics or design background.”
Mr Meadows states in his declaration at paragraphs 11 and 12:
“I have over 40 years’ experience flying military and commercial aircraft, including some 15 years of experience operating small, large, fixed wing and multi-rotor RPAS within four Air Forces and the Commercial Sector. I have also developed, implemented, and supervised safe UAS procedures and operations within the commercial, defence, surveillance, mining and rail arena and I have been accountable for governance and safety for Defence and Boeing.
I have considerable experience with various types of drone applications and technology since 2007. In my role as a Pilot in the Australian and British air forces, I acquired over 8,000 hours flying aircraft, including fast jet and reaper & predator UAVs and have over 1,500 hours flying large UAS, primarily in operational combat roles and operationally focused training. In 2016 my focus was directed more towards drone consultancy, specifically Beyond Visual Line of Sight (BVLOS) Drone operations on both large and small RPAS. I have continued to consult a range of different clients, including government departments and non-professional groups.”
Mr Meadows discusses what he understood to be the common general knowledge (at the priority date) of release mechanism for remote control aircraft at paragraphs 41 and 45-46:
“By June 2019 a particularly popular use of drone technology by hobbyists was in the amateur fishing industry. In this application, the payload was a fishing line attached at one end to a fishing rod set up on the shore, for example, and at the other end to a payload release mechanism on the drone. This arrangement allowed an angler, for example, to cast his or her line, bait, sinker and hook out to a water area which was impossible to reach without a boat and using traditional casting methods.
…
As I have indicated immediately above, as at June 2019 payload release mechanisms were quite well known and widely accepted by drone flyers and hobbyists alike. Without payload release mechanisms, drones or UAS could not, for example, function to drop ordnance or deliver packages.
However, as at June 2019 it was general knowledge within the industry that payload release mechanisms must have certain fundamental features such as:
· a motion of some sort to unlock a pin or bolt which is activated by a servo motor (which I discuss further below) or the release of a tensioned spring; and
· a means of ensuring that release of the payload will not endanger lives / cause damage to property, i.e the release was authorised on a command from the operating person.”
I consider Mr Meadows’ qualifications in addition to the significant experience in flying manned and unmanned aircraft, to establish Mr Meadows is a person with relevant knowledge in relation to release mechanisms for remotely controlled aircraft.
The problem
In applying the test of Wellcome Foundation, I need to identify the problem solved by the claimed invention.
The Applicant states in their submissions at section B.6 (second paragraph):
“The question of obviousness is to be answered by adopting the position of the person skilled in the art seeking to find a solution to the problem, and not by ex post facto reasoning which involves taking the known solution and working backwards to the problem by a succession of apparently easy steps (Palmer v Dunlop Perdriau Rubber Co Ltd (1937) 59 CLR 30).” (emphasis in the original)
The Applicant states in their submissions at the first paragraph of B.2:
“The relevant field of technology of the invention relates to release mechanisms designed for drones. The problem that the invention sets out to solve is to provide a drone release mechanism that can automatically release a payload when a certain load is exceeded, or selectively release a payload upon election by the operator. More specifically, the problem to be solved is to incorporate both functionalities in an integrated design suitable for use in a drone where space and weight constraints are significant.”
I consider that the Applicant’s formulation of the problem to be too narrow. It presupposes the need for an active and passive release means which are the key elements of the present invention.
The description outlines the existing drone release mechanisms used for drones and some of the associated problems:
· Actuated release mechanisms can fail (page 2 lines 22-30):
“The servo motor typically actuates a push / pull rod that is connected to a drive shaft of the servo motor. The push / pull rod is therefore displaceable between a first position in which it is configured to carry a load, and a second position in which it is configured to release a load. This type of selectively actuated load carrying and release mechanism generally works well, but is known to fail at times if, for example, the servo motor fails, or the push rod gets stuck. Also, this type of mechanism is not capable of releasing the fishing line under emergency conditions, for example should the reel of the fishing rod lock up.”
· Predetermined force release mechanisms can damage the drone (page 3 lines 1-12):
“Release mechanisms have been proposed that releases a fishing line under the emergency conditions mentioned above (i.e. when a predetermined tension is exerted on the fishing line, and hence the release mechanism), but such mechanisms are not desirable for use under normal release conditions due to the plucking or snapping action of such a release (for example, when the fishing lines overcomes an internal bias of the release mechanism). The impact forces exerted on the drone when using this type of delivery mechanism as a normal release mechanism is not ideal, and can potentially damage the drone - in particular if this happens regularly. Also, such release mechanisms will only work in the fishing environment, and not in other application where controlled release is required.”
The description goes on to state at page 3 lines 14-24:
“It is accordingly an object of the invention to provide a payload delivery mechanism suitable for use with a drone that will, at least partially, alleviate the above disadvantages.
It is also an object of the invention to provide a payload delivery mechanism suitable for use with a drone which will be a useful alternative to existing payload delivery mechanisms.
It is a further object of the invention to provide a release mechanism for a payload delivery device mechanism suitable for use with a drone that will, at least partially, alleviate the above disadvantages.”
I consider that the problem is a drone release mechanism that avoids or ameliorates the issues of potential release mechanism failure and predetermined force release mechanisms which can damage the drone.
D1 – US 2019/0135437 A1
D1 discloses a release mechanism for a drone. A preferred embodiment of D1 is shown in Figure 5:
A zoom in of plates wheels (46) is shown in Figure 2:
The corresponding description states at paragraphs 20-22:
“Referring to the Figures, a rotatable release mechanism 10 for transporting and releasing an object 12 is mounted to a rotatable output shaft 14 of a servo or mechanical or electrical device 16 such as a motor or the like. The rotatable release mechanism is of any size, shape, and structure. In one example shown, the rotatable release mechanism 10 has a partially circular opening 18 that terminates in an arcuate slot or groove 20. A part of the transition from the opening 18 to the slot 20 includes an edge or a catch 22 that assists in retaining a connection device 24 within the opening 18 during transport.
The slot 20 is defined by a circular portion 26 and a finger 28 of the rotating release mechanism 10. The finger 28 has an inner surface or edge 30 that extends from opening 18 to a tip 32 of the finger 28. The tip 32 of the finger 28 has an outer surface or edge 34 that terminates in an outer surface or edge 36 of the circular portion 26. The outer edge 36 continues around the circular portion 26 to the opening 18 wherein a portion 38 forms an inner edge 40 of slot 20. The circular portion 26 has an opening 42 that receives the output shaft 14 of the servo/mechanical/electrical device 16. A spacing plate 44 is also mounted to the circular portion 26 of the rotating release mechanism 10. A screw 49 is securing the rotatable release mechanism 10 via its center hole 42 to the rotatable output shaft 14 of a servo or mechanical or electrical device 16.
In a second example, the rotating release mechanism 10 has a pair of plates/wheels 46 connected as a single piece and having an opening 18, slot 20, circular portion 26, and finger 28 as previously described. Preferably, the wheels 46 are separated by a spacing plate 44, the openings 18 and slots 20 are aligned, and one finger 28 is longer than the other.”
D1 discloses a mechanism which is a rotatable finger which holds a loop of material that is connected to a cable or wire that hold the load to be transported by the flying vehicle. When the finger is rotated, the loop slips out and the load is thus released.
The SGP states at paragraph 3.2.7.1:
“D1 discloses at least the following:
Claim 1:
a. A payload delivery mechanism (pg 1, para [0001 “rotatable release mechanism”; pg 1, para [0020] “rotatable release mechanism 10”]) suitable for use with a drone (pg 1, para [0001]), the payload delivery mechanism including:
b. a load carrying mechanism which is displaceable between a retaining position, in which at least part of the payload is retained by the load carrying and release mechanism, (pg 1, para [0020]; pg 2, para [0028]), and a release position, in which at least part of the payload is releasable from the load carrying out release mechanism (pg 2, [para 0022]; pg 2, para [0029]);
c. the load carrying and release mechanism including two adjacent release elements that are displaceable between the retaining position and the release position, (pg 1, [para 0022]), with an axis of movement of the two adjacent release elements being substantially in a same line (pg 2, [para 0036], both plates have the same axis of movement); and
d. an actuator for displacing the load carrying and release mechanism from the retaining position to the release position (pg 2, [para 0035]); and
e. wherein, in the first release mode, the load carrying and release mechanism is displaced from the retaining position to the release position by the actuator that is in use electrically actuated (p10 [para 0035]).” (emphasis in original)

The SGP states at 3.2.8:
“The Opponent says the invention so far as claimed in independent claim 1 of the Opposed Application would have been obvious to a person skilled in the relevant art in light of the common general knowledge as it existed in Australia before the priority date, considered together with D1.”
The Applicant states in their submissions at section A.3 from the second paragraph onward:
“D1 does not disclose a release mechanism that includes two modes of release. D1 only discloses the first release mode (remotely actuated release). D1 discloses the use of an additional cable including a magnetic connection which can act as a further release, but this does not form part of an integrated release device. This secondary release is functionally similar to the use of drop loops (an additional line with reduced gauge commonly used in drone fishing) or even the use of paper clips and rubber bands to provide a weak point where a load can detach, which is also used by hobbyists. As is the case for the magnetic release, these kinds of secondary releases are cumbersome, not accurately adjustable, and require the user to set up a secondary ‘system’, whereas in the present invention this functionality is provided in the integrated design of the release mechanism.
It is also important to note that D1 does not disclose two adjacent release elements where an axis of movement of the two adjacent release elements are substantially in a same line. In the Statement of Grounds and Particulars (paragraph 3.2.7.1) the Opponent states that these features are disclosed in D1.
The Applicant submits that the assertion set out in paragraph 3.2.7.1 is a forced interpretation as the two release elements in D1 are only rotatable about a common axis and do not allow for movement in the same line. This is an important differentiation, because it makes it difficult to combine D1 with the disclosure of D2 and D3 to arrive at the present invention.
Further comments made by the Opponent are inaccurate, including:
a Claim 2: Figure 3, referred to in par 3.2.7.2, only shows a single plate with two opposing arms extending therefrom, and the arms are not adjacent.
b Claim 10: No clamping elements are disclosed in D1 – only displaceable retaining hooks.
c Claim 13: The shaft 14 in D1 is not one of the actuated elements. It merely drives the plate 46.”
D1 discloses an active release mechanism for a drone. However, there are several differences between D1 and the claimed invention. Put briefly, D1 does not disclose the features (iii), (v), (vi), (vii), or (viii) of claim 1.
There is no evidence to show how D1 would be modified such that it would fall within the scope of the claims. Furthermore, I am not satisfied that a person skilled in the art would, as a matter of routine, make the many modifications to D1 listed above such that it would fall within the scope of claim 1. Claim 1 is considered inventive in light of D1. It logically follows that all dependent claims are also inventive in light of D1.
D3 - Newton 3 Clip as depicted in the YouTube video entitled “West Coast Drone Fishing Glinks Gully to Puto”
The SGP states:
“3.2.23 D3 describes the Newton 3 as being a release mechanism comprising two ball bearings which are compressed by a spring. A wire loop is clipped into the mechanism between the two balls, which weigh a predetermined set weight of 1.2 – 1.4 kilograms. Once pressure is applied to the wire, the release clip with [sic] open allowing the bait to drop.”
Publication date of D3
The SGP states:
“3.2.21 A video of the Newton 3 (D3) was first published on the American online video sharing and social media platform YouTube at on 11 January 2019, and was therefore publicly available in Australia or elsewhere before the priority date to which the claims are entitled.”
The Applicant states in their submissions at section A.5 first four paragraphs:
“The Applicant submits that the online video uploaded to the video sharing and social media platform, YouTube, is non-patent literature of unknown reliability. That is, it is a video that has been published by a private organisation, and the publication date cited by the Opponent in paragraph 3.2.21 may be unreliable.
The Applicant refers to the Examiners Patent Manual of Practice and Procedure, at Section 4.1.4.3.3, which requires supporting evidence of the publication date of non-patent literature published on social media websites.
As set out in more detail in section B below, the Applicant questions the alleged publication date cited by the Opponent in paragraph 3.2.21, and notes the lack of supporting evidence of this alleged publication date by the Opponent.
The Applicant’s comments made in relation to D2 are repeated mutatis mutandis in relation to D3.”
The recently updated version of the Examiners Patent Manual of Practice and Procedure states in Section 4.4.3.3:
“Websites of organisations whose business it is to publish documents (for example, Journals, Newspapers, Universities, and YouTube) are generally not considered to be of “unknown reliability”. Consequently, the publication dates indicated therein for their content can be accepted as accurate.”
I consider YouTube to be reliable in regards to the publication dates of its videos. I am satisfied that the publication date of D3 is 11 January 2019.
What does D3 disclose?
I have taken a zoomed view from a screenshot of the D3 video which is shown below:
The device shown in the D3 video is a metal plate with two metal tubes attached (on their sides) onto a surface of the plate. The tubes are axially aligned, and the tubes have a small gap separating them.
The person talking in the video explains the device in D3:
“This is a Newton 3 release. Two ball bearings compressed by a spring. You can adjust the tension by adjusting the screws. You clip a wire loop between the two balls. We preset them to about 1.2 – 1.4 kilos. So, as it’s going out you just grab the line apply a bit of pressure, it pulls the clip out of the drone and releases.”
Mr Meadows explains his understanding of the device in D3 at paragraph 8 1 of his declaration:
“The Newton 3 Clip comprises two spherical ball bearings housed in a cylindrical casing within a housing that can be mounted to a drone. It appears to be a fairly simple device that can be easily attached to or detached from any drone. The ball bearings are biased towards each other by a spring force to create a holding tension at the point of contact. The fishing line is threaded between the two ball bearings and held in place by the tension between the two spherical ball bearings. I consider it likely that the tension between the two spherical ball bearings can be adjusted by adjusting the spring tension holding the ball bearings in place.”
It can be reasonably inferred that each tube contains a ball bearing. The ball bearing in one tube is biased by a spring, the ball bearings press against each other in the gap between the tubes. I have illustrated what I understand to be inside the tubes in the Newton 3 Clip, including the screw for adjusting the tension on the spring:
The problem posed to Mr Meadows
Mr Meadows states in his declaration at paragraph 90:
“Having discussed each of the examples of prior art presented to me, I was asked by AJ Park to address the following question:
“When we discussed release mechanisms and servo motors. In particular, you commented on the functions of servo-motors in activating payload release mechanisms.
With those comments in mind, how would you consider modifying the Newton 3 to provide an on-demand release using a servo motor remotely controlled by the user, as well as the safety/user yanking release?” ”
Was the problem posed to Mr Meadows appropriate?
The Applicant states:
“The Applicant submits that the Opponent has provided evidence in which the alleged expert has taken the known solution and worked backwards to the problem. The Opponent has not provided any evidence in their review of documents D1 to D3 indicating any awareness of the problem addressed by the present invention of the Proposed Application. In other words, it is not apparent from the Meadows Declaration whether the authors of documents D1 to D3 were even aware of the problem that the present invention sets out to solve, which is to provide a drone release mechanism that can automatically release a payload when a certain load is exceeded, or selectively release a payload upon election by the operator. The Applicant submits that the Meadows Declaration does not show how the authors of D1 to D3 indicate that the problem to be solved is to incorporate both functionalities in an integrated design suitable for use in a drone where space and weight constraints are significant.”
The first aspect of the Applicant’s complaint with the problem posed to Mr Meadows is misguided. The problem/solution approach does not require that the authors of the prior art documents were aware of the problem being solved by the present invention.
The second aspect of the Applicant’s complaint – that there was an element of ex post facto analysis in how the problem was formulated and presented to Mr Meadows – require more careful analysis.
Mr Meadows in his declaration at paragraphs 45 to 51 discusses release mechanisms for drones that were available as of June 2019. Mr Meadows discusses release mechanisms came of two types: active release and passive release. An active release mechanism is the “Splash Drone”. One passive release mechanism is the ‘Sky Rigger’ made by ‘Sea Ulcer’. Another passive release system is the Gannet fishing kit.
The problem posed to Mr Meadows was how he would modify D3 (a passive release mechanism) to include a servo motor to allow active control of the release of payload, while also allowing safety/user-yanking release.
I consider the problem formulated by the Opponent’s attorney to be tainted by hindsight analysis. Mr Meadows was essentially asked how to include an active release mechanism (based on a servo motor) in a passive release mechanism. However, this is, in essence, the present invention.
The problem should have been phrased in terms of the deficiencies of existing release mechanisms and providing the prior art documents raised by the Opponent (D1, D2 and D3).
Overall, I do not consider the problem posed to Mr Meadows was an appropriate starting point for inventive step analysis. Consequently, the solutions provided by Mr Meadows are of limited probative value.
Solutions provided by Mr Meadows
Mr Meadows states at paragraphs 93-100:
“…[T]he inclusion of a servo activated release mechanism in conjunction with a self-release mechanism such as that of the Newton 3, would be an obvious step to overcome the potential shortcomings of each. The servo mechanism would avoid the risk of destabilising the flight of the drone by pulling on the line with sudden excessive force. The self-release mechanism would provide a fail safe for the servo system.
I have considered how I might somehow adjust the tension the springs in flight so that they might act as a spring in order to retain the line but then how I might configure the apparatus to cause movement of the anchor of the spring in flight so as to reduce spring tension and make the ball bearings limp/allow them to part and thus release the line.
For completeness I also considered having a servo mechanism to release the entire retention device from the drone however in my opinion that would be impractical.
The more obvious solution is to provide the means of reducing or removing the tension of the spring in flight by remote control.
In the Newton 3 for example the ball bearings are each held in place and forced together under tension by springs. If the ball bearings form the end of the rod then that is same thing but then they would be held by a servo motor or mechanical lock. So, they would no longer be held by a spring tension, but would rather be an on or off lock held by a servo motor. The mechanism could have a moveable bolt which is not the ball bearing spring but simply a bolt that moves together and apart.
I can illustrate this using my fingers to represent ball bearings held together by springs. If I move one ball bearing and move it or release it that would be an actuated release. If one of the springs is mounted on the end of a rod such that the rod holds the spring in place and maintains the pressure on the ball bearing against the other ball bearing, that spring can then be relaxed by using a servo to move the rod away from the direction of the ball bearing, thus releasing the tension between the ball bearings and allowing them to be loose against each other.
Such a solution would have been considered a straightforward use of a servo prior to June 2019.
At that time a number of ways were known to release or cause the rod to move in that manner such as, for example, attaching the rod directly to a servo motor and rotating it, using a transverse mounted geared motor to retract the rod it [sic] somehow or using a servo to release a pin that is holding the rod in place.”
Mr Meadows does not provide diagrams which would have been helpful in understanding his proposed modifications of D3. In the paragraphs below I have provided my best efforts to understand what Mr Meadows is actually suggesting.
Mr Meadows mentions springs (plural) several times in his solution (paragraphs 93-100 of Mr Meadows declaration). From this I understand each of the two bearings is biased with a spring.
Mr Meadows suggests the servo motor is coupled to the device as follows:
“using a transverse mounted geared motor to retract the rod it [sic] somehow”
The word ‘transverse’ means across in relation to another direction and typically used to mean perpendicular to another direction.
In the context of D3, the word ‘retract the rod’ appears to be a suggesting that the ball bearings are moved linearly.
A transverse mounted geared motor suggests that the axis of rotation of the motor is not aligned (e.g. is perpendicular) with the longitudinal axis of the rod.
I can envisage three ways that a transverse mounted geared motor could cause a rod to move linearly. I have illustrated these three mechanisms, in combination with earlier explanation provided by Mr Meadows of how he might have modified D3.
The first mechanism I can imagine which matches Mr Meadows’ solution including the words ‘transverse mounted geared motor to retract the rod’ is the use of a rack and pinion gear:
The second mechanism I can imagine is the use of a bevel gear to drive a ball screw along which a ball screw nut travels (thus generating linear motion):
A third mechanism I can imagine is the use of crossed helical gears (screw gears) to drive a ball screw along which a ball screw nut travels (thus generating linear motion):
As noted above, Mr Meadows’ solutions to the posed problem are explained to a level of detail which is less than ideal. For example, it is not entirely clear whether all of Mr Meadows’ solutions would require a spring biasing each bearing, or only on the bearing that also had the servomotor. For example, a spring only on the rod that had the servomotor would look as follows:
One of the solutions provided by Mr Meadow is as follows:
“The mechanism could have a moveable bolt which is not the ball bearing spring but simply a bolt that moves together and apart.”
Which, when read in the context of the preceding sentences of the declaration, could be either of:
All of Mr Meadows’ solutions I have interpreted and illustrated above (except the last one) have an active and passive release mechanism; these solutions fall within the scope of claim 1. The last solution does not include a biasing element, so does not have the features (v), (vi) or (viii) of claim 1.
The Applicant’s submissions on Mr Meadows solutions
The Applicant states in their submissions in section B.9:
“In paragraphs 90 to 99 of the Meadows Declaration, Mr Meadows is asked to come up with his own design based on the prior art, while keeping in mind the problem to which the present invention is directed.
As mentioned above, the Applicant submits that Mr Meadows is not qualified or experienced in drone engineering and design. Accordingly, his comments on designing a drone set out in paragraphs 90 to 99 of the Meadows Declaration, are not persuasive.
In paragraph 93 of the Meadows Declaration, Mr Meadows’s [sic] expresses the view the inclusion of a servo activated release mechanism in conjunction with a self-release mechanism such as that shown in D3 would be an obvious step to overcome the shortcomings of D3 and D1. In particular, it is stated that the servo mechanism would avoid the risk of destabilising the flight of the drone by pulling on the line with sudden excessive force, which appears to be one of the reasons a person skilled in the art would consider combining the two functionalities.
The Applicant submits that Mr Meadows conclusion is based on a misconception. If the release is, for example, set at 1.4kg and the load carried is 1kg, one can add about 200g of counteracting force for line pull, which means that the release force is only 200g, which will not result in any significant destabilization of the drone. This also highlights the need for easy adjustability, if the load is significantly less, the release force required increases proportionally. If the line is stopped while the drone is in motion, the inertia will trigger the release instantly without destabilization of the drone. It is correct that the actuator driven release is preferred, but to say that it is obvious because it is required to prevent destabilisation is an overstatement. The Applicant agrees that the actuator driven release should be the default mode of release because an inexperienced user could indeed disrupt the flight of the drone by excessive plucking and pulling (as opposed to merely stopping the line) when using a poorly set release with insufficient payload loading. However, the Applicant does not believe that the combination of the two mechanisms is obvious due to the issue of destabilisation. Actuated release is also preferred by most users as it can be done whilst the UAV is hovering or slowing traversing a reef. Whilst looking down with the drone camera, a user can with relative ease precision drop in a desired spot. Using the second release mode is more random and imprecise.
In paragraphs 94 to 100 of the Meadows Declaration, Mr Meadows proposes his own solution which essentially involves relaxing the tension in the spring in order to achieve the first release mode. It is important to note that such a solution is impractical, in particular considering the space constraints involved. Adjusting the spring tension would require, in relative terms, significant displacement of one end (the “anchor”) of the spring.
In the D3, a soft coil spring must be used to ensure repeatable and even movement of the spring, and hence the sphere. In the context of D3, this will mean that the end of the spring opposite the sphere will have to be displaced close to, if not more than, 1 cm before the tension is released. In Mr Meadows’s design the servo motor first needs to relax the spring before the sphere is released, thus requiring significant displacement by the servo. In relative terms, a large servo will be required to facilitate this degree of displacement, which is again not desirable from a weight and space perspective.
Even if this design were to work (for example in a release mechanism for a larger drone where space is less of a concern), it means that the spring would be cycled every time there was an actuated release, which would not be ideal for sustained spring life and bias consistency. The release would also not be instantaneous, as the tension in the spring will first need to be released before the load could be released.
In the present invention, the spring that biases the one sphere is compressed, but the movement of the sphere is mechanically impeded / limited by the casing design, which means that the servo does not need to relax the spring force for the first release mode to be realised. This in turn means that the rod does not need to be displaced very far at all – only a distant sufficient to release the line. The servo size is therefore minimized. The servo also does not need to re-compress the spring again after the load has been released.
Mr Meadows essentially states in paragraph 96 of the Meadows Declaration that “the obvious solution is to provide means of reducing or removing the tension of the spring in flight by remote control”. The Applicant submits that Mr Meadows conclusion is the opposite of what is intended in the present invention and rather than implying a lack of inventive step, Mr Meadows conclusion actually implies that the present invention is not obvious.”

I note that these are the Applicant’s submissions only. The Applicant did not provide any Evidence in Answer when given the opportunity. The Applicant’s submissions making assertions about the effectiveness of various engineering technicalities are of limited value in determining an opposition. It is somewhat ironic that the Applicant, who spent a considerable amount of effort in their submissions diminishing the credibility of the Opponent’s expert, presents assertions with no expert authority at all.
The Applicant’s submissions on Mr Meadows’ solutions can be summarised as follows:
·The solutions are different to the embodiments of the present invention
·The solutions are not optimal
I agree that Mr Meadows’ solutions are different to the embodiments of the present invention. In some solutions Mr Meadows proposes to use the servo motor to move a spring which is attached to a ball bearing. These solutions are indeed different to the embodiment of the present invention wherein the movement of the cam directly moves the ball bearing towards and away from the other ball bearing.
However, it is moot whether the Mr Meadows’ solutions (with the exception of the solution that does not have a spring) relate to the bearing being directly moved by the servo motor (or via the spring) since the claims are not specific to this feature. That is, the claims are not specific to whether the spring is on the active side of the mechanism or on the passive side.
I also agree that the solutions provided by Mr Meadows appear prima facie to be sub-optimal. However, the claims are not specific to an optimal mechanism.
Do Mr Meadows solutions establish a lack of inventive step in light of D3?
I have found that the problem was posed to Mr Meadows in such a way that it led him towards the solution, thus his solutions had limited probative value. I have also found the solutions provided by Mr Meadows to be ambiguous, requiring significant effort to interpret and understand his solutions. Overall, I am not satisfied that the evidence establishes, to a balance of probabilities standard, that the claims lack an inventive step in light of D3.
D2 – WO 1990/012499
The invention of D2 relates to a release mechanism for fishing. The release mechanism (1) is underwater as shown in figure 1:
The device keeps the fishing line low in the water. When a fish is caught the fishing line is released to a higher angle, allowing the fish to be reeled in.
The release mechanism is exemplified in Figure 2:
The SGP states:
“3.2.16 D2 discloses at least the following:
3.2.16.1 Claim 1:
a. a load carrying mechanism which is displaceable between a retaining position, in which at least part of the payload is retained by the load carrying and release mechanism, and a release position, in which at least part of the payload is releasable from the load carrying out release mechanism (Solution to the problem, para 6; Amended Claims 1 and 2);
b. the load carrying and release mechanism including two adjacent release elements that are displaceable between the retaining position and the release position, with an axis of movement of the two adjacent release elements being substantially in a same line (Solution to the problem, para 6; Figure 2; Amended Claims 1 and 2);
c. a biasing element for biasing the load carrying and release mechanism towards the retaining position (Solution to the problem, para 6; Figure 2; claim 4);
d. wherein, in the second release mode, the load carrying and release mechanism is displaced, against the bias exerted by the biasing element, from the retaining position to the release position when a predetermined maximum external load is exerted on the load carrying and release mechanism (Solution to the problem, para 6; Amended Claims 1 and 2).”
The SGP further states:
“3.2.17 The Opponent says the invention so far as claimed in independent claim 1 of the Opposed Application would have been obvious to a person skilled in the relevant art in light of the common general knowledge as it existed in Australia before the priority date, considered together with D2.”
The Applicant states in their submissions:
“D2 discloses a release mechanism that is similar to the second release mode of the present invention. However, it does not disclose a first release mode (i.e., an actuated release mode). D2 discloses a very basic design of a release mechanism, and it is not apparent how D2, in combination with the common general knowledge and/or the disclosure in D1 and D3 will assist a person skilled in the art to arrive at the present invention.”
The invention of D2 has some similarities to the invention of the opposed application. However, D2 does not disclose an active controllable release mechanism.
D2 releases the fishing line when a fish is caught on the fishing hook. The person skilled in the art would not be motivated to put an active release mechanism on D2 (and there is no evidence to suggest that a PSA would do so), since the passive release system is a desirable aspect of the invention that would not be easily replaced by an active release system.
I am not satisfied that a person skilled in the art would modify D2 to include an active release system (e.g. remotely controlled actuator). The claims are inventive in light of D2.
Conclusion
The claimed invention does not lack an inventive step. The claimed invention is supported by the specification and is clear. The specification provides a clear enough and complete enough disclosure of the invention. The opposition is unsuccessful on all grounds.
Costs
Costs typically follow the event and there is no reason to deviate in this case. I therefore award costs according to Schedule 8 against the Opponent, UDF Distribution.
Xavier Gisz
Delegate of the Commissioner of Patents