Woodside Energy Limited v Richard John Moore
[2018] APO 82
•2 November 2018
IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Woodside Energy Limited v Richard John Moore [2018] APO 82
Patent Application: 2012253231 & 2012253232
Title:Offshore hydrocarbon cooling system;
Subsea cooling system
Patent Applicant: Richard John Moore
Requestor: Woodside Energy Limited
Delegate: Dr W.E. Guinea
Decision Date: 2 November 2018
Hearing Date: 9 August 2018, in Canberra
Catchwords: PATENTS – s36 and s59(a) – whether requestor/opponent is sole eligible person – sole or joint inventorship – applicant sole inventor and sole eligible person – request/opposition under s36/s59(a) unsuccessful – whether there should be an exercise of power under s60(3) with respect to novelty –lack of novelty not found – power under s60(3) not exercised– documents not in evidence – regulation 5.23 – regulation 5.23 not exercised for documents not in evidence – whether evidence in reply is properly in reply – some evidence found to not be properly in reply – inventive step – all claims found to lack inventive step in view of common general knowledge alone –no other grounds of opposition made out – opposition successful – opportunity to amend – no award of costs
Representation: Patent attorney for the applicant: Carol Kane of FB Rice
Counsel for the requestor/opponent: Luke Merrick
Patent attorney for the requestor/opponent: Kadri Elcoat of Corrs Chambers Westgarth
IP AUSTRALIA
AUSTRALIAN PATENT OFFICE
Patent Application: 2012253231 & 2012253232
Title:Offshore hydrocarbon cooling system;
Subsea cooling system
Patent Applicant: Richard John Moore
Date of Decision: 2 November 2018
DECISION
The Opponent’s request under s36 is unsuccessful. The Opponent has failed to establish that anyone other than the Applicant is the sole eligible person, or that the Opponent has fiduciary rights to either the 201253231 or 2012253232 applications.
The opposition under s59 is successful. Claims 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20 of application number 2012253231 lack inventive step according to s7(2). Claims 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18 of application number 2012253232 lack inventive step according to s7(2). No other grounds of opposition were successful.
I decline to exercise my power under s60(3) as none of the claims lack novelty.
I decline to exercise regulation 5.23 with regard to certain documents not in evidence.
The Applicant has two (2) months from the date of this decision to propose amendments that overcome the deficiency with respect to inventive step.
I make no award of costs.
REASONS FOR DECISION
Background
Patent applications 2012253231 (the “231 application”) and 2012253232 (the “232 application”) (collectively the “applications”) entered the national phase on 6 November 2013 from respective PCT applications PCT/AU2012/000509 and PCT/AU2012/000510. The 231 application was advertised as accepted on 23 June 2016, while the 232 application was advertised as accepted on 26 May 2016. Both applications list Richard John Moore (the “Applicant”) as the sole applicant and inventor, and have an earliest priority date of 12 May 2011.
A notice of opposition to the applications, under s59 of the Act, was filed by Woodside Energy Limited (the “Opponent” or the “Requestor” as appropriate) on 2 September 2016. On the same day the Opponent also filed requests under s36 of the Act in relation to both applications.
The Applicant wrote to the Commissioner on 19 September 2016 in terms that indicated that he was defending the s36 request. The Opponent filed a further statement of particulars with regard to each of the applications on 2 December 2016 (the “Opponent’s s36 particulars”). These statements were identical for each application, save with respect to references to the relevant application numbers.
An initial statement of grounds and particulars (“SGP”) for each of the s59 oppositions on the applications was filed on 2 December 2016 (collectively the “SGPs”). At this point it is worth noting that there were multiple amendments made to each of the SGPs due to deficiencies in the same and attempts by the Opponent to add the ground of novelty to the Opposition. The attempt to introduce the ground of novelty by amending the SGPs was refused in Woodside Energy Limited v Richard John Moore [2017] APO 17. The final form of the SGPs was filed on 27 April 2017, and it is these versions which are meant wherever I refer to SGPs hereinafter.
Notably the SGPs asserted that the Applicant was not entitled to the grant of a patent on the applications, which significantly overlaps with the request under s36. As a result the Commissioner issued a direction on 5 January 2017 that the evidence in each s59 opposition be treated as evidence in the s36 request. For the avoidance of any doubt, while the s59 and s36 matters have been joined as indicated for each application, there has been no joining of the matters between each of the applications. This is despite the fact that the evidence is identical for both the oppositions and s36 requests.
The filing of evidence in support (“EIS”) was completed on 2 March 2017 for both applications. This consisted of:
· a first declaration by Dr Eric May (“May1”), dated 2 March 2017, with supporting annexures EM-1 to EM-13;
· a declaration by Ms Julie Morgan (“Morgan”), dated 2 March 2017, with supporting annexures JM-1 to JM-7; and
· a declaration by Mr Sidney En-Ning Kung (“Kung”), dated 2 March 2017, with supporting annexures SEK-1 to SEK-5.
The filing of evidence in answer (“EIA”) was completed on 21 August 2017. This consisted of:
· a first declaration by Mr Richard John Moore (“Moore1”), dated 18 August 2017, with supporting annexures RJM-1 to RJM-8; and
· a second declaration by Mr Richard John Moore (“Moore2”), dated 21 August 2017, with supporting annexures RJM-9 to RJM-15.
The filing of evidence in reply (“EIR”) was completed on 25 October 2017. This consisted of:
· a second declaration by Dr Eric May (“May2”), dated 5 October 2017, with supporting annexure EM-14; and
· a declaration by Mr Torolf Hæhre (“Hæhre”), dated 25 October 2017, with supporting annexure TH-1.
Both parties filed written summaries of submissions that covered both applications. The Opponent filed their written submissions (the “Opponent’s written submissions”) on 27 July 2018, while the Applicant filed his written submissions (the “Applicant’s written submissions”) on 3 August 2018.
The Invention as Described for the 231 Application
10. The invention for this application relates to a hydrocarbon cooling system for an offshore hydrocarbon processing platform. In this regard the description discusses the fact that cooling systems for hydrocarbon processing are both known and necessary, in order to lower the temperature of extracted hydrocarbon fluid. Some difficulties with the existing cooling systems are discussed, including: space constraints, high ambient temperatures (for air cooling systems), fouling and corrosion when using seawater as part of the cooling system, cost, temperature control and the potential formation of hydrates that can block pipelines. The specification then states, at page 3 lines 20 to 21, that “the present invention seeks to overcome at least some of the aforementioned disadvantages”.
11. The hydrocarbon cooling system of the 231 application is best understood by reference to figures 1 and 2, which are reproduced below.
12. As can be seen on the figures, the hydrocarbon cooling system 10 is applicable to either fixed 12 or floating 12’ offshore platforms. Each offshore platform 12, 12’ comprises a hydrocarbon processing area 14 (commonly known as “topsides”) which processes hydrocarbon fluid obtained from well heads located on the sea bed 40. The hydrocarbon cooling system 10 comprises heat exchanger(s) 16 wherein a hydrocarbon fluid (typically within a conduit) loses heat to a cooling medium fluid, thus cooling the hydrocarbon fluid. A pump 18 circulates the cooling medium fluid through a heat exchange circuit 20 in heat exchange relationship with the heat exchanger(s) 16.
13. After gaining heat from the hydrocarbon fluid, the cooling medium fluid is directed from the heat exchange circuit 20 into a subsea cooling unit 22 via an inlet 24 and first riser 30. The subsea cooling unit 22 comprises a number of subsea cooling modules 28. Each of the subsea cooling modules 28 includes several cooling pipes 36. The cooling medium fluid flows through the cooling pipes 36, losing heat to the surrounding seawater by convection in the process. The now cooled cooling medium fluid then makes its way back to the heat exchange circuit 20 via second riser 32 and outlet 26.
14. It should be apparent that, by continually circulating the cooling medium fluid through the heat exchange circuit 20 and subsea cooling unit 22, the cooling medium fluid is able to cool a stream of hydrocarbon fluid in contact with the heat exchanger(s) 16.
15. While a number of optional features are described it is clear that the features described above form the crux of the invention as outlined in the description.
The Invention as Described for the 232 Application
16. The invention for this application relates to a system for cooling a hydrocarbon fluid in a subsea environment. It is observed, at page 1, lines 21 to 36, that:
“Subsea applications for hydrocarbon cooling generally occur where the hydrocarbons are sourced from subsea wells, as distinct from 'dry tree' platform wells, when the wells are brought up to either fixed or floating platform facilities. Cooling has been required to meet maximum pipeline design temperature, (to prevent pipeline upheaval buckling, and to prevent excessive corrosion) particularly in high pressure, high temperature (HP/HT) wells. Another subsea cooling application occurs as part of subsea compression projects.
In the future, as there is expected to be greater demand to conduct more processing subsea, as compared to on fixed or floating platform facilities, particularly in deepwater and remote locations, there will be a greater demand for improved subsea hydrocarbon cooling systems.”
17. The 232 application then outlines some devices proposed for subsea cooling of hydrocarbons. These including sending the hydrocarbons through a single or network of pipes in heat exchange with the surrounding seawater. This is said to have several disadvantages including (at page 2, lines 9 to 27):
· no way to accurately control the hydrocarbon temperature, which will vary with the flow rate;
· if the cooling is too great and the fluid flow is low there is a risk of hydrate formation;
· the lack of temperature control means that there is no way to remove water or condensate at a given temperature and pressure subsea. So far this can be done topsides only;
· the use of stainless steel or similar for the pipe network can be prohibitively expensive; and
· there can be potential blockages due to the build-up of wax or sand during reduced flowrates and operating temperatures.
18. It is observed at page 2, line 29 to page 3, line 6 that:
“Other proposed subsea cooling devices look to enhance the cooling duty obtained and provide temperature control. This is proposed by pumping seawater, in various configurations and by various devices, across the pipe network containing the hydrocarbon fluids.
The pumped seawater passes across the pipes at an increased velocity. This in theory achieves a higher forced-convection external pipe hear transfer coefficient and may achieve temperature control by varying the seawater velocity. While the principle of this heat transfer method is correct, in practice this method will reduce in effectiveness if any marine fouling or scale coating develops over time. Loss of temperature control may result.”
19. It is noted at page 3, lines 7 to 8 that “…the present invention seeks to overcome at least some of the aforementioned disadvantages”.
20. The hydrocarbon cooling system provided in the 232 application is virtually identical to that of the 231 application, other than the fact that the cooling system is applied to subsea processing as opposed to an offshore platform. As with the 231 application, the hydrocarbon cooling system of the 232 application is best understood by reference to the figures, all of which are reproduced below.
21. As can be seen from the figures, the subsea hydrocarbon cooling system 10 comprises a subsea hydrocarbon processing area 12 and heat exchanger(s) 16 wherein a hydrocarbon fluid (typically within a conduit) loses heat to a cooling medium fluid, thus cooling the hydrocarbon fluid. A pump 34 circulates the cooling medium fluid through a heat exchange circuit 18 in heat exchange relationship with the heat exchanger(s) 16.
22. After gaining heat from the hydrocarbon fluid, the cooling medium fluid is directed from the heat exchange circuit 18 into a subsea cooling unit 22 via an inlet 24 and first conduit 30. The subsea cooling unit 22 comprises a number of subsea cooling modules 28. Each of the subsea cooling modules 28 includes several cooling pipes 36. The cooling medium fluid flows through the cooling pipes 36, losing heat to the surrounding seawater by convection in the process. The now cooled cooling medium fluid then makes its way back to the heat exchange circuit 18 via second conduit 32 and outlet 26.
23. I note that figure 2 illustrates an embodiment wherein cooling medium fluid that has gained heat from heat exchanger(s) 16 is used to heat a hydrocarbon process stream via heat exchanger(s) 16’ prior to entering subsea cooling unit 22. However this is an optional feature amongst others disclosed and it is clear that that the features described at [17] to [18] form the crux of the invention as outlined in the description.
The Claims for 231 Application
24. The 231 application comprises 20 claims of which claims 1, 13, 19 and 20 are independent. The independent claims are reproduced below; the full claim set can be found at Annex A to this decision.
“1. A hydrocarbon cooling system for an offshore platform, said system comprising:
one or more hydrocarbon process fluid heat exchangers arranged in heat exchange communication between a hydrocarbon process fluid and a cooling medium fluid;
a cooling medium fluid distribution pipe system connected to the hydrocarbon process fluid heat exchangers; and,
a subsea cooling unit for cooling the cooling medium fluid, the subsea cooling unit comprising:an inlet and an outlet arranged in fluid communication with the cooling medium fluid distribution pipe system;
one or more subsea cooling modules, each cooling module comprising a plurality of cooling pipes configured in heat exchange relationship with surrounding seawater;
a first riser arranged to provide fluid communication between the inlet and the one or more subsea cooling modules; anda second riser arranged to provide fluid communication between the one or more subsea cooling modules and the outlet.
13. A subsea cooling unit for cooling a cooling medium fluid circulating through a heat exchange circuit on an offshore platform, the heat exchange circuit having a cooling medium fluid distribution pipe system, the subsea cooling unit comprising:
an inlet and an outlet arranged in fluid communication with the cooling medium fluid distribution pipe system;
one or more subsea cooling modules, each cooling module comprising a plurality of cooling pipes configured in heat exchange relationship with surrounding seawater;
a first riser arranged to provide fluid communication between the inlet and the one or more subsea cooling modules; anda second riser arranged to provide fluid communication between the one or more subsea cooling modules and the outlet.
19. A method of cooling a hydrocarbon process fluid on an offshore platform, said method comprising:
passing the hydrocarbon process fluid through a hydrocarbon process fluid heat exchanger and passing a cooling medium fluid through a cooling medium fluid distribution pipe system, wherein said heat exchanger and said pipe system are configured to provide heat exchange communication between the hydrocarbon process fluid and the cooling medium fluid, thereby producing a cooled hydrocarbon fluid and a heated cooling medium fluid; and,
cooling the heated cooling medium fluid by passing the heated cooling medium fluid through a subsea cooling unit, wherein the subsea cooling unit comprises:an inlet and an outlet arranged in fluid communication with the cooling medium fluid distribution pipe system;
one or more subsea cooling modules, each cooling module comprising a plurality of cooling pipes configured in heat exchange relationship with surrounding seawater;
a first riser arranged to provide fluid communication between the inlet and the one or more subsea cooling modules; anda second riser arranged to provide fluid communication between the one or more subsea cooling modules and the outlet.
20. A method of processing a hydrocarbon process fluid on a topsides facility comprising:
treating the hydrocarbon process fluid in one or more process steps to produce a treated hydrocarbon fluid, whereby one of the process steps comprises cooling the hydrocarbon process fluid;
wherein cooling the treated hydrocarbon process fluid comprises:passing the treated hydrocarbon fluid through a hydrocarbon process fluid heat exchanger and passing a cooling medium fluid through a cooling medium fluid distribution pipe system, wherein said heat exchanger and said pipe system are configured to provide heat exchange communication between the hydrocarbon process fluid and the cooling medium fluid, thereby producing a cooled hydrocarbon fluid and a heated cooling medium fluid; and,
cooling the heated cooling medium fluid by passing the heated cooling medium fluid through a subsea cooling unit, wherein the subsea cooling unit comprises:
an inlet and an outlet arranged in fluid communication with the cooling medium fluid distribution pipe system; one or more subsea cooling modules, each cooling module comprising a plurality of cooling pipes configured in is heat exchange relationship with surrounding seawater;
a first riser arranged to provide fluid communication between the inlet and the one or more subsea cooling modules; anda second riser arranged to provide fluid communication between the one or more subsea cooling modules and the outlet.”
25. Although there are some differences between the independent claims, it can be seen that all of these define:
· a cooling medium fluid distribution pipe system which forms part of or flows through a heat exchange circuit/heat exchanger(s), the heat exchange circuit/heat exchanger(s) being on an offshore platform; and
· a subsea cooling unit having a plurality of pipes in heat exchange with the surrounding seawater and fluidly coupled to the heat exchange circuit/heat exchanger(s) so as to allow for cooling of the cooling medium fluid.
The Claims for 232 Application
26. The 232 application comprises 18 claims of which claims 1, 8 and 15 are independent. The independent claims are reproduced below; the full claim set can be found at Annex B to this decision.
“1. A subsea hydrocarbon cooling system, said system comprising:
one or more hydrocarbon process fluid heat exchangers arranged in heat exchange communication between a hydrocarbon process fluid and a single phase cooling medium fluid, wherein the one or more hydrocarbon process fluid heat exchangers are located subsea;
a cooling medium fluid distribution pipe system connected to the hydrocarbon process fluid heat exchangers; and,
a subsea cooling unit for cooling the cooling medium fluid, the subsea cooling unit comprising:an inlet and an outlet arranged in fluid communication with the cooling medium fluid distribution pipe system;
a flow controller to control the flow of cooling medium fluid in said system;
one or more subsea cooling modules, each cooling module comprising a plurality of cooling pipes configured in heat exchange relationship with surrounding seawater;
a first conduit for providing fluid communication between the inlet and the one or more subsea cooling modules; anda second conduit for providing fluid communication between the one or more subsea cooling modules and the outlet.
8. A subsea cooling unit for use in a hydrocarbon process fluid cooling system, said unit being adapted to cool a single phase cooling medium fluid circulating through a subsea heat exchange circuit, the subsea heat exchange circuit having a cooling medium fluid distribution pipe system, the subsea cooling unit comprising:
an inlet and an outlet arranged in fluid communication with the cooling medium fluid distribution pipe system;
a flow controller to control the flow of cooling medium fluid in the subsea heat exchange circuit;
one or more subsea cooling modules, each cooling module comprising a plurality of cooling pipes configured in heat exchange relationship with surrounding seawater;
a first conduit arranged to provide fluid communication between the inlet and the one or more subsea cooling modules; anda second conduit arranged to provide fluid communication between the one or more subsea cooling modules and the outlet.
15. A method of cooling a hydrocarbon process fluid, said method comprising:
passing the hydrocarbon process fluid through a subsea hydrocarbon process fluid heat exchanger and passing a single phase cooling medium fluid through a cooling medium fluid distribution pipe system, wherein said subsea heat exchanger and said pipe system are configured to provide heat exchange communication between the hydrocarbon process fluid and the cooling medium fluid, thereby producing a cooled hydrocarbon fluid and a heated cooling medium fluid; and,
cooling the heated cooling medium fluid by passing the heated cooling medium fluid through a subsea cooling unit, wherein the subsea cooling unit comprises:an inlet and an outlet arranged in fluid communication with the cooling medium fluid distribution pipe system;
a flow controller to control the flow of cooling medium fluid through a subsea heat exchange circuit;
one or more subsea cooling modules, each cooling module comprising a plurality of cooling pipes configured in heat exchange relationship with surrounding seawater;
a first conduit arranged to provide fluid communication between the inlet and the one or more subsea cooling modules; anda second conduit arranged to provide fluid communication between the one or more subsea cooling modules and the outlet.
27. Although there are some differences between the independent claims, it can be seen that all of these define:
· a cooling medium fluid distribution pipe system which forms part of or flows through a heat exchange circuit/heat exchanger(s), the heat exchange circuit/heat exchanger(s) being located subsea; and
· a subsea cooling unit having a plurality of pipes in heat exchange with the surrounding seawater and fluidly coupled to the heat exchange circuit/heat exchanger(s) so as to allow for cooling of the cooling medium fluid.
The s59 Opposition and the s36 Request
28. In the SGPs the Opponent pursued grounds under:
· s59(a) and s15(1) – the nominated person is not entitled to a grant of a patent for the invention or is entitled to a grant of a patent for the invention but only in conjunction with some other person; and
· s59(b) and s18(1)(b)(ii) – the invention as claimed does not comprise an inventive step in view of the common general knowledge alone or when read with certain items of prior art.
29. The s36 requests asserted that the Opponent was entitled to patents granted on the applications.
30. The grounds under 59(a) and the s36 request were not formally abandoned by the Opponent, as confirmed by Mr Merrick at the hearing. However the Opponent has provided no submissions outlining their case with respect to the entitlement issue either in written submissions or at the hearing.
31. The ground of inventive step was pursued at the hearing and in written submissions.
32. For reasons of convenience I will consider the ground under s59(a) and the s36 request together before turning to the remainder of the s59 opposition.
Entitlement under s36 and s59(a)
33. The initial s36 requests asserted that the inventions subject to the applications arose in the course of the Applicant’s employment by the Opponent. Few details were provided by the Opponent in the initial requests, other than noting that the Applicant’s duties included “conception and design of oil and gas processing systems including for sub sea production”, asserting that the inventions were within the Opponent’s technology program (“Compact cooling and water removal technologies for individual high rate gas wells”) and observing that the Applicant was responsible for a technical review pertaining to gas dew-pointing on the seabed.
34. Further details with regard to the s36 request were given in the Opponent’s s36 particulars. These listed further subsea hydrocarbon processing programs that the Applicant was involved with while employed by the Opponent, and that he worked with a number of other employees (collectively the “Project Employees”). The Opponent also noted, in very general terms, that the Applicant was exposed to a variety of third party technology. On this basis the Opponent asserted that either the Applicant conceived of the inventions subject of the applications alone or with the project employees or that they were conceived of by one or more of the project employees. In the alternative the Opponent suggested that a third party employee is the inventor.
35. I note that the Opponent’s particulars in the SGPs with regard to s59(a) are identical to those in the Opponent’s s36 particulars.
36. In summary the Opponent asserts that it is entitled to the applications or in the alternative the Applicant is not entitled to the applications, or in general is not otherwise entitled to the applications. The Morgan declaration and supporting annexures comprise the only evidence filed by the Opponent in support of its entitlement assertions.
Onus of Proof
37. With regard to the s36 request, it is well established in law that the requestor bears the onus to prove their case on the balance of probabilities. However the evidentiary burden may shift under some circumstances, especially when knowledge of relevant facts lie particularly with one party or the other; see Dunlop Holdings Limited's Application [1979] RPC 523 at 542 to 544 (“Dunlop Holdings”).
38. As the request for examination was after 15 April 2013 the substantive amendments of the Patents Act brought about by the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 apply to the applications. For present purposes this means that the Opponent bears the onus to prove their case on the balance of probabilities.
39. Consequently it is clear that the Opponent bears the same onus with respect to its case on entitlement whether that is considered under s36 or s59(a).
The Law on Entitlement
40. The entitlement question has been pursued under separate parts of the Act. However I note that the legal principles involved in determining entitlement under s36 and s59(a) are identical.
41. In this regard the law on inventorship/entitlement has been recently considered in University of Western Australia v Gray [2009] FCAFC 116 (“UWA”) and Polwood Pty Ltd v Foxworth Pty Ltd [2008] FCAFC 9 (“Polwood”). In particular steps for determining who is an eligible person are apparent from [253] of UWA as part of a broader discussion from [253] to [256]. These steps may be given for present purposes as follows:
i.identify the “inventive concept” of each relevant invention as defined in the claims.
ii.determine inventorship including the person responsible for the inventive concept and the time of conception as distinct from its verification and reduction into practice.
iii.determine whether any contractual or fiduciary relationships give rise to proprietary rights in the invention.
42. Polwood provides guidance with regard to determining the inventive concept at [61]:
“The invention or inventive concept of a patent or patent application should be discerned from the specification, the whole of the specification including the claims. The body of the specification describes the invention and should explain the inventive concepts involved. While the claims may claim less than the whole of the invention, they represent the patentee's description of the invention sought to be protected and for which the monopoly is claimed. The claims assist in understanding the invention and the inventive concept or concepts that gave rise to it. There may be only one invention but it may be the subject of more than one inventive concept or inventive contribution. The invention may consist of a combination of elements. It may be that different persons contributed to that combination.”
43. Following the principles outlined in UWA, to decide the s36 and s59(a) matters, I need to first identify the inventive concept for each application and then determine the question of inventorship with regard to the same. Finally I need to determine whether any contractual or fiduciary relationships give rise to proprietary rights in the invention. I will now consider each of these questions below, starting with the inventive concept for each application.
The Inventive Concept for the 231 Application
44. On reading the 231 application it is apparent that the inventive concept as defined in the claims resides in a cooling system for offshore platforms distinguished by the following features:
· a cooling medium fluid distribution pipe system which forms part of or flows through a heat exchange circuit/heat exchanger(s), the heat exchange circuit/heat exchanger(s) being on an offshore platform; and
· a subsea cooling unit having a plurality of pipes in heat exchange with the surrounding seawater and fluidly coupled to the heat exchange circuit/heat exchanger(s) so as to allow for cooling of the cooling medium fluid.
45. I note that the Opponent has not formally identified the inventive concept. Via the material available it would seem that the Opponent considers the inventive concept to little more than the concept of subsea cooling, a point raised in the Applicant’s written submissions at [71]. It should be apparent that I do not consider this to be a valid characterisation of the inventive concept.
46. I observe that the inventive concept, as identified above, is largely congruent with the Applicant’s written submissions at [57].
The Inventive Concept for the 232 Application
47. On reading the 232 application it is apparent that the inventive concept as defined in the claims resides in a cooling system for subsea use distinguished by the following features:
· a cooling medium fluid distribution pipe system which forms part of or flows through a heat exchange circuit/heat exchanger(s), the heat exchange circuit/heat exchanger(s) being located subsea; and
· a subsea cooling unit having a plurality of pipes in heat exchange with the surrounding seawater and fluidly coupled to the heat exchange circuit/heat exchanger(s) so as to allow for cooling of the cooling medium fluid.
48. My comments on the parties’ understanding of the inventive concept for the 231 application are equally applicable to the 232 application, so I shall not repeat these here.
Who is Responsible for the Inventive Concept of Each Application?
49. As noted earlier, the Opponent has asserted, as part of very generalised particulars, that the Applicant was a co-inventor with other Project Employees or that the inventions were conceived by one or more of the Project Employees or third party employees.
50. The difficulty for the Opponent’s assertions in this regard is that there is no evidence to support the proposition that there were co-inventors with the Applicant or that some other party or parties were in fact the inventors. All that is provided by way of evidence is that the Applicant worked with the Project Employees and other third parties on various Opponent projects that are asserted to disclose various integers of the claimed inventions (rather than the inventive concepts). This is perhaps best exemplified in the Morgan declaration at [14] and [15]:
“As a consequence of:
(a) Moore's involvement in the projects described above;
(b) the disclosures in the third party documents, as well as the other documents annexed to this declaration to which Moore had access; and
(c) the discussions which Moore had with my colleagues and myself during his time working for Woodside, much of the material in the claims was disclosed to Moore during his employment with Woodside.”
The details of the material in the claims which were disclosed to Moore during his employment with Woodside are set out in annexure JM-7. However, in summary, the following material was disclosed:
(a) a hydrocarbon cooling system for an offshore platform comprising one or more hydrocarbon process fluid heat exchangers arranged in heat exchange communication between a hydrocarbon process fluid and a cooling medium fluid;
(b) a subsea cooling unit for cooling a hydrocarbon process fluid containing an inlet and an outlet, capable of being arranged with other units in a variety of configurations for heat exchange with surrounding seawater;
(c) a subsea cooling unit containing cooling pipes capable of being configured in a manifold of parallel lengths or coiled arrangement around part of an offshore platform substructure;
(d) the use of conduits in the form of risers to transport fluids and gases from subsea modules to an offshore platform, such risers being in fluid communication via seabed pipes;
(e) the use of a flow controller to control the flow of a fluid; and
(f) the use of subsea cooling units located above the sea bed, supported by means of mud mats comprising a pallet and/or incorporating lengths of pipe through which a cooling medium fluid is circulated and distributed.”
51. It can be seen that the Opponent has simply failed to properly identify the inventive concepts as I have identified them, let alone who was responsible for these. It follows that the Opponent has failed to establish that anyone other than the Applicant was responsible for the inventive concepts. Consequently I have no reason to doubt that the Applicant was the sole inventor with regard to both applications.
Are there any contractual or fiduciary relationships give rise to proprietary rights in the invention?
52. The Opponent’s s36 particulars generally assert it is entitled to the applications as it is alleged that the Applicant conceived of the inventions whilst employed by the Opponent.
53. In this regard I note that the Morgan declaration observes (at [5]) that the Applicant was employed by the Opponent from 1 October 2001 to 28 January 2011. This is confirmed by the Applicant at [23] and [41] of Moore1.
54. I note that the Applicant has deposed that he began to conceive of the 231 application in mid to late February 2011 (Moore1 at [45]), while he conceived of the invention behind the 232 application in late April 2011. That is the Applicant has indicated that he conceived of the applications after he was no longer employed by the Opponent.
55. Consequently the onus is on the Opponent to establish, based on the evidence, that the Applicant did in fact conceive of the inventions whilst employed by the Opponent. However the Opponent’s evidence does nothing more than divide the claims into integers and then assert that the Applicant was exposed to each of these integers while employed by the Opponent, as demonstrated by the discussion at [49] to [51] of this decision. As observed in these passages, the Opponent has simply failed to properly identify the inventive concepts. This fact alone is fatal to any assertion that there are any contractual or fiduciary relationships between the Applicant and the Opponent leading to rights in the inventions.
56. However for the avoidance of doubt, I will briefly consider JM-1 to JM-7 below,
57. I note that JM-7 provides a summary of where the features referred to at [15] of Morgan are said to have been disclosed in a number of third party documents said to be available to the Applicant while employed by the Opponent. I have considered JM-7 and it is clear that this document admits that features comprising the inventive concepts, as I have identified them, are missing from each of the third party documents discussed. It is thus apparent that the Applicant was in no way exposed to the inventive concepts from these third party documents.
58. I have also considered JM-1 to JM-6. None of these documents disclose the inventive concepts of the applications as I have identified them. At best there are schematic diagrams and generalised discussions of subsea cooling of a hydrocarbon gas (rather than a cooling medium fluid), but these lack any detail that is suggestive of the inventive concepts.
59. In view of the above I cannot conclude that there were any contractual or fiduciary relationships between the Applicant and the Opponent that would give rise to proprietary rights in the inventions.
Conclusion on Entitlement under s36 and s59(a)
60. I conclude that the Opponent has failed to establish that any party other than the Applicant is entitled to patent rights in the applications. It follows that the Opponent’s s36 request and grounds of opposition under s59(a) are unsuccessful.
The Remainder of the Opposition under s59
61. As observed earlier in this decision, the remainder of the opposition under s59 relates to lack of inventive step. There are however, a number of procedural issues that I to need deal with before continuing with the ground of inventive step.
62. These procedural issues are:
a) who is the skilled addressee, and are the declarants able to represent the skilled addressee?;
b) whether parts of the Hæhre and May2 declarations are properly in reply to the EIA;
c) whether I should use regulation 5.23 with respect to documents that the Opponent sought to rely upon, but failed to place into evidence; and
d) whether I should exercise my power under s60(3) to establish that the claims lack novelty in view of certain documents.
63. I will consider each of these issues now in turn, noting that my consideration under s60(3) with respect to novelty is directly linked to considerations under Regulation 5.23 as to whether to introduce a document as it would make out the ground of novelty.
Who is the Skilled Addressee?
64. The skilled addressee is taken to be a non-inventive worker in the art with respect to the invention concerned, is taken to have the CGK in the art, and could be a team of people; see Root Quality Control Pty. Ltd. v Root Control Technologies Pty. Ltd. [2000] FCA 980 at [70] to [71] (“Root Quality Control”); Catnic Components Limited and Another v Hill & Smith Limited (1982) RPC 183 at 242 to 243 and Minnesota Mining & Manufacturing Co. vBeiersdorf (Australia) Ltd. [1980] HCA 9 at [115]; (1980) 144 CLR 253 at 292. In particular in Root Quality Control at [71] Finkelstein J. stated that “... the patent is directed to a person interested in making, constructing, compounding or using the invention...”
65. I consider that the skilled addressee is a person or team of persons involved in the designing and/or construction of hydrocarbon cooling systems for hydrocarbon processing on i) offshore platforms (231 application) or ii) in a subsea environment (232 application). It is reasonable to believe that the skilled addressee is composite being comprising those who consider cooling systems from a more conceptual level through to those involved with their actual construction.
66. A “process engineer” is someone who follows “…the entire ‘process’ of oil and gas molecules as they flow from the well and ‘processed’ such that they can be transported to market from remote locations and sold. This is distinct from other engineers who may concentrate on specific items or structures” (Moore1 at [5]). “Flow assurance” refers to engineering “…that seeks to guarantee a steady and reliable flow from hydrocarbon wells to production and processing facilities over the lifetime of the field” (May1 at [14]), a definition supported by the Applicant’s statements at [11] of Moore1. I consider that a process engineer with experience in flow assurance would represent a significant amount of the knowledge and skills of the skilled addressee.
67. I have reviewed the CVs and declarations by each of the declarants and I am satisfied that each is able to adequately form part of/represent the views of the skilled addressee as I have defined it. In this regard I note that:
· Dr May has a Doctor of Philosophy dealing with the measurement of phase behaviour in gas condensate fields. He has extensive experience, including teaching at university, in flow assurance and process engineering; see May1 at [1] to [10] and [14] and EM-1. It is apparent that Dr May’s knowledge also extends to offshore and subsea production (May1 at [9] and [14]);
· Ms Morgan has not provided her CV, however it is clear from Morgan at [1] and [4] that Ms Morgan has worked as a flow assurance engineer for the Opponent since 2009;
· The Applicant has a Masters in Engineering Science in Chemical Engineering (RJM-1), has extensive experience in the oil and gas industry, including in offshore and subsea production and has worked on many design projects that are related to cooling systems and flow assurance, ; Moore2 at [9] and RJM-1, RJM-12; and
· Mr Hæhre has a Masters Degree in Civil/Structural Engineering. He has extensive experience in the oil and gas industry, including in offshore and subsea production, process engineering and flow assurance; Hæhre at [1] to [13] and [22] and TH-1.
68. The Applicant, in his written submissions at [93], has identified the skilled addressee as follows:
“The skilled addressee of the ‘232 application is involved in the operation and/or design of an LNG production platform. The PSA is broadly speaking, a process engineer with expertise in flow assurance and having knowledge and experience in fluid thermodynamics and process engineering aspects of operation and/or design. Flow assurance is a term recognised globally in the oil and gas industry as relating to subsea process design, including design and operational measures to ensure that liquids in deepwater flowlines between the well and production platform are kept flowing and do not get blocked. In this case, the PSA is a person with more than simply a practical interest in oil and gas process engineering, which it will be appreciated, is an exceptionally broad field.” (references to footnotes removed)
I take [93] to also be relevant to the 231 application noting that the Applicant provided combined submissions and there are no other submissions given with regard to the 231 application per se.
69. While the Applicant’s formulation of the skilled addressee is somewhat different to mine, this may not amount to much in practical terms. As observed above, I accept that a process engineer with experience in flow assurance, as outlined by the Applicant, would represent a significant amount of the knowledge and skills of the skilled addressee as I have identified it. However I do not think that the skilled addressee is necessarily so limited. Indeed it is clear that the skilled addressee as I have construed is a composite being having knowledge beyond flow assurance, for example with regard to specialist engineering skills required to actually construct and place the cooling units in situ. It is therefore doubtful that any one person would have all of these qualifications or knowledge and thus be able to represent the full gamut of what the skilled addressee would know or do. In real terms this only matters if the person put forward as the skilled addressee lacks the particular knowledge or experience of the skilled addressee that are relevant to the issues at hand.
70. The Opponent has identified the skilled addressee as a person with “…a practical interest in oil and gas process engineering” (Opponent’s written submissions at [24]). I agree with the Applicant that this is an overly broad characterisation of the skilled addressee, although it clearly intersects with my determination of the skilled addressee.
71. At the hearing, in written submissions and in the evidence the Applicant has attacked the ability of Dr May (in particular) and of Mr Hæhre to represent the skilled addressee. Overall I find this to be a somewhat unusual attack in that it is clear from the evidence that both Dr May and Mr Hæhre are able to represent the skilled addressee according to the Applicant’s own formulation of the same. Nevertheless I will consider these arguments below as some effort was expended by the parties on this issue at the hearing, in written submissions and in the evidence.
72. In this regard the Applicant asserts that “…May’s evidence as to the sources of information and knowledge of process engineers needs to be treated with caution for a number of reasons” (the Applicant’s written submissions at [96]). These reasons can be summarised as:
I.Dr May does not have the experience in design and operations in the oil and gas industry to give evidence (The Applicant’s written submissions at [96]);
II.Dr May has been impermissibly led or used hindsight in his evidence (the Applicant’s written submissions at [97] to [99], [103] and [104]
III.That Dr May is providing evidence favourable to the Opponent due to the fact the Opponent has provided and continues to provide funding to Dr May’s research programs (the Applicant’s written submissions at [99]).
I will now address each of these issues.
73. The Applicant’s attack against Dr May with regard to item I is predicated on the academic nature of Dr May’s experience. For example the Applicant observes that Dr May has had no practical experience in the design of offshore oil and gas field developments (Applicant’s written submissions at [96]). The Applicant’s attack on Dr May’s alleged lack of practical experience is also apparent throughout much of Moore2, for example at [8] and [25]:
“8. I make a distinction between 'high science', being theoretical and academic based research that May has focused on in his career, with 'normal design' and 'industry design practices', which has regard to practical issues arising from differences in design customs in different global regions. These differences in design customs can arise from variations in engineering customs, environmental factors and differences regulatory regimes. For example, Gulf of Mexico (GOM) regulatory regimes are generally focused on uniform engineering standardisation, whereas in the North Sea region, regulations are based on the 'safety case' quantitative risk assessment (following the inquiry from the Piper-Alpha disaster). Based on this history, the North Sea undertakes greater engineering optimisation, partly due to the generally more complex nature of the projects, partly due to the environment and partly simply due to historic cultural practices.”
“25. At paragraph 26, May alleges that the 'inventions described in 231 are straight-forward.' I consider this to be an incorrect assessment. Whilst I can appreciate that individual components of the invention are known, the invention does not reside in the individual components. Rather, the invention resides in the particular claimed combination of components which provides a unique and new methodology of cooling. Making the design practical and suitable for deployment in 'real life' engineering projects is a component of the innovation behind 231. I consider it telling that the opponent has not been able to provide engineering designs that replicate 231 or 232 in any 'real life' or proposed oil and gas project and that a primary reason for this is that what is described and claimed in 231 and 232 is innovative. If these designs were not innovative, I would expect that the opponent would be able to readily provide engineering designs or drawings that illustrate the design.” (emphasis in original)
74. Dr May conceded his lack of practical experience in May2 at [5]. However in the same paragraph Dr May observes that:
“In April 2017, I was awarded the status of Chartered Chemical Engineer by the Institution of Chemical Engineers in the class of Fellow. This qualification enables me to sign off on design drawings for pilot-scale equipment. In addition, I have taught aspects of process design to students for many years.”
This suggests that Dr May is able to form part of the composite skilled addressee at least from the point of view of design.
75. In further defence of his ability to represent the skilled addressee, Dr May also raised what I will call the “level of detail issue”. This is best illustrated at [7] of May2:
“Although Moore attempts to distinguish my experience from his, in my view this difference in background has no bearing on my ability to understand the 231 and 232 Applications, and to compare the technology described in those patent applications to the prior art. Both the 231 and 232 Applications consist of high-level conceptual descriptions of technology. In his declaration, Moore refers to some specific details of that technology, but none of this detail is disclosed in the 231 and 232 Applications. I will discuss this issue further below.”
76. This issue was discussed in the written submissions and at the hearing. I observe that Ms Kane, in discussing whether parts of May2 were properly in reply, stated that:
“In relation to the substance of May number two, the primary concern that we have in this strange dissection of the specification in counting how many times a particular term or phrase has been used in the specification, gave us some concern that the Opponent was trying to, for want of a better word, ‘sneak in’ a section 40 ground of objection in the opposition. We don’t see the level of detail as an issue. Many other patent applications have progressed quite happily, certainly we’ve been responsible for many patent applications that have progressed quite happily to ah grant and commercial reality on the same level of detail. There is no necessity to go in the minutiae of detail that the person skilled in the art might be able to fill in themselves.”
77. I agree with Ms Kane to the extent that routine details of implementation can be left up to the skilled addressee. It is reasonable to infer that where one seeks to actually implement hydrocarbon cooling systems, either for offshore platforms or subsea, in a particular instance, then one would make use of someone like the Applicant, Ms Morgan or Mr Hæhre with such practical experience, rather than Dr May who admittedly does not.
78. However in general, I ultimately agree with Dr May as far as the level of detail goes. The crux of each of the inventions is described at a high level of detail. Beyond this the applications largely cover various high level design options or embodiments with respect to the core inventions. While some of this detail covers what might be done in various real life implementations of the cooling systems (for example the 231 application refers to tethering cooling modules to floating offshore platforms), this detail is quite general in nature and it would clearly be be left up to the skilled addressee to provide significant practical details of how to implement such an embodiment (for example how many and what type of tether to use, the length of the tether etc.). There is no discussion on details pertaining to the implementation of the cooling systems at particular locations, such as the North Sea, Gulf of Mexico, or for certain well head temperatures etc. Indeed Ms Kane’s representations at the hearing are supportive of this. Consequently it is difficult to see how the alleged engineering details alluded to by the Applicant forms part of the inventions.
79. Consequently, while the engineering knowledge identified by the Applicant forms part of the skilled addressee’s toolkit, this is generally not necessary with respect to providing opinions on what the skilled addressee would know or do in the context of the applications and the inventions as claimed. To the extent that any of the claims introduce features where practical matters in the sense outlined by the Applicant are a key concern, then it will be a matter of weighing the evidence of each of the declarants accordingly.
80. At least part of the Applicant’s attack under item II is predicated on the fact that Dr May does not “…provide a single textbook, piece of teaching material or reference that he routinely refers to as evidence of what the CGK actually is” (Applicant’s written submissions at [97]). Ultimately this attack is misconceived. Dr May is putatively putting himself in the shoes of the skilled addressee and providing his opinion as to what the skilled addressee would know or do, i.e. he is simply giving expert evidence as he is entitled to do within the confines of a hearing before the Commissioner; see for example Innovia Security Pty Ltd v Giesecke & Devrient GmbH [2013] APO 75 at [11] to [14]. In any case I note Dr May provided references to support his contentions at [19] to [23] of May1 in EM-14.
81. Other than this, whether or not Dr May has been impermissibly led, or is using hindsight analysis is a matter for me to consider as the decision maker in weighing up the evidence as it pertains to particular findings of fact I need to make throughout this decision. I do not consider it necessary or expeditious to consider this issue as a generality in isolation from the relevant considerations of fact.
82. At the hearing Mr Merrick strongly objected to the attack on Dr May with regard to item III, noting that “it had not been substantiated in any way”. He also observed that it would be surprising if an academic like Dr May did not have any connections with the Opponent given the nature of the field, and that Dr May was upfront about his connections with the Opponent. Mr Merrick requested that Ms Kane identify the basis for the allegation or withdraw the submission and apologise to Dr May. Mr Merrick also noted that there was no independent expert giving evidence for the Applicant, and that the Applicant had a compelling financial interest in the matter.
83. At the hearing Ms Kane acknowledged that Dr May was a distinguished academic, and did not suggest that he was making any “misrepresentations or the like”. However Ms Kane persisted in the allegations of bias with respect to Dr May’s evidence, suggesting that his career could be at stake in terms of the volume of funding provided by the Opponent, and that it was human nature to not “bite the hand that feeds him” and to not “rock the boat”.
84. It would seem that Ms Kane’s attacks on Dr May are predicated on Dr May being unconsciously biased in favour of the Opponent due to the funding he has received from it. However, other than the fact that Dr May has (by his own admission) received funding from the Opponent, there is no evidence to substantiate Ms Kane’s allegations. In this regard I note that Dr May indicates (at [10] of May1) that he has received over $33 million dollars in research funding since 2006, while it is apparent from the same paragraph that the Opponent has provided a little over $1.2 million of this total. While not a small sum of money it is apparent that the Opponent has only accounted for a very small proportion of Dr May’s funding. Overall it would also seem reasonable that a distinguished academic like Dr May would be able to attract sufficient funding in the future even if he incurred the permanent wrath of the Opponent. Overall I consider that Ms Kane’s submissions with regard to Dr May’s career and bias are little more than implausible speculation.
85. It follows that I ultimately reject Ms Kane’s assertions of bias. I also observe that if I were to accept her submissions at face value then it would be virtually incumbent on me to make similar determinations of bias with respect to the Applicant’s evidence.
86. The Applicant has also made similar attacks with respect to Mr Hæhre at [101] to [108] of his written submissions, at least with regard to items I and II. However the reasoning I have provided with regard to Dr May is generally applicable to the arguments against Mr Hæhre as well and I will not repeat them here.
87. Finally I observe that the Opponent has supplied various reasons at [24] to [30] of their written submissions as to why Dr May and Mr Hæhre’s evidence should be preferred to the Applicant’s. These principally relate to assertions that the skilled addressee would look to the CGK, known equipment and the literature rather than taking the allegedly rather conservative approach outlined by the Applicant. While I have noted these arguments, I consider they are best addressed, if necessary, in the weighing up of the evidence where I need to make findings of fact.
Are Parts of the Hæhre and May2 Declarations Properly in Reply?
88. Principles concerning whether EIR is properly in reply to the EIA have been conveniently summarised by the Delegate in Sonus Pharmaceuticals, Inc v Alliance Pharmaceutical Corp and Schering Aktiengesellschaft [2001] APO 13 (“Sonus”) at page 7:
“I conclude that in general evidence in reply:
(i)is not evidence that should have been served as evidence in support
(ii)responds to some matter raised by the evidence in answer
(iii)does not merely confirm the evidence in support”
89. In his written submissions the Applicant alleges that paragraphs [18] and [26] (in total) and [14], [16], [29], [49] and [55] (in part) of May2 are not properly in reply to the EIA.
90. At the hearing Mr Merrick argued that paragraphs [14], [16], [18], [26], [29] and [49] of May2 were in reply to the Applicant’s attacks in the EIA with regard to level of detail provided by Dr May in his evidence and in the prior art, and that this was important in assessing the disclosure of the prior art with respect to the claimed inventions. Mr Merrick accepted that paragraph [55] was more in the manner of a submission and was content for it to be treated on that basis.
91. Ms Kane argued that the impugned paragraphs of May2 gave rise to concerns that the Opponent was trying to “sneak in” section 40 grounds into the opposition. Ms Kane argued that the level of detail with respect to the applications was not an issue as there was no need to fill in details that the skilled addressee would be able to provide themselves.
92. Overall it is clear to me that paragraphs [14], [16], [29] and [49] of May2 are squarely in response to Moore2. To the extent that these paragraphs discuss the detail disclosed in the applications, this has been made in direct response to challenges in Moore2 to Dr May’s ability to represent the skilled addressee as noted earlier in this decision (the “level of detail” issue). This is perhaps best illustrated in Moore2 at [8] and [25], as cited previously and also at [20]:
“20. Paragraph 24 of the May Declaration describes how he would design heat exchangers from first principles. In my opinion and from my experience in engineering design practice, this demonstrates that May takes an approach which is typical of an academic without actual practical experience, not least of all because he makes no reference to significant and key information and guide sources used in design, such as those referenced from paragraph 16 above. In addition, this is simply not normal engineering design practice. The oil and gas industry is traditionally and consistently conservative and risk averse. The typical engineering design approach is to look towards what has already worked in the past, that is, what is already tried and tested, and make incremental improvements to what is already known. Design is largely concerned with capability of the design to be practical and to be implemented and operational across a wide range of operating conditions and variations on these.”
93. It can also be seen that Dr May’s dissection of the applications at [18] and [26] form part of his response to the level of detail issue, and indeed [7] (cited above at [75]) from May2 helps place [18] and [26] in this context.
94. While I note Ms Kane’s concerns with respect raising section 40 by stealth, I observe that the Opponent has not made any submissions to that effect. Indeed Mr Merrick has only referred to the “level of detail issue” in terms of assessing the claims for novelty and inventive step, and with regard to Dr May’s evidence and his ability to represent the skilled addressee. Overall it is hardly surprising that the Opponent has responded to the level of detail issue since the Applicant has placed this squarely on the table in EIA. In these circumstances any concerns the Applicant might have about section 40 are really the result of the EIA rather than the EIR. In any case as there are no section 40 issues in suit I do not see the relevance of Ms Kane’s submission in this regard.
95. In summary I consider that paragraphs [14], [16], [18], [26], [29] and [49] of May2 are properly in reply to the EIA, according to the principles from Sonus. Conversely I consider paragraph [55] of May2 to not be properly in reply to the EIA, as conceded by Mr Merrick at the hearing.
96. Turning to Mr Hæhre’s evidence, the Applicant has asserted at [38] of his written submissions that paragraphs [25] to [29], [30] to [37] and [58] to [75] of Hæhre are not properly in reply.
97. In continuing Mr Merrick asserted that [25] to [29] provided Mr Hæhre’s insights on the applications and these paragraphs were relevant due to his expertise and in providing context to his evidence. For paragraphs [30] to [37] Mr Merrick argued that Mr Hæhre’s statements are used to support Dr May’s statements in the context of being able to provide evidence from the point of view of the skilled addressee and thus is responsive to the Applicant’s attacks in this regard on Dr May. Paragraphs [58] to [75] were said to be relevant as Mr Hæhre was providing comments on the prior art and thus joining the battle between the parties and responding to the case advanced by the Applicant to the opposition.
98. In response Ms Kane asserted that Mr Hæhre has been brought in to address matters that should have been raised in EIS. Ms Kane further argued that any gaps in the EIS should have been plugged at the EIS stage.
99. It is apparent from [30] and [38] of Hæhre that Mr Hæhre’s evidence at [25] to [29] were made before seeing Moore2. There is nothing to suggest that Mr Hæhre was asked to consider the applications from the point of view of the level of detail provided, although he does touch on the generality of the applications at [26]. In these circumstances it is very difficult to characterise [25] to [29] as somehow responsive to Moore2. Rather these passages merely provide Mr Hæhre’s opinion on the applications and are better characterised as EIS. Consequently I consider that these passages at least fail to comply with items (i) and (ii) from Sonus and as such are not properly in reply to the EIA.
Paragraphs [30] to [37] comprise Mr Hæhre’s comments on May1. From [38] it is apparent that Mr Hæhre provided these comments prior to viewing Moore2. I consider that these paragraphs are directed to affirming Dr May’s first declaration rather than responding to anything in Moore2. Consequently I consider that these passages at least fail to comply with items (ii) and (iii) from Sonus and as such are not properly in reply to the EIA.
The situation with regard to paragraphs [58] to [75] is a little more complex. Of these it is clear that [62], [63], [66], [67], [69], [71], [73] and [75] directly reference and respond to passages in Moore2. There is little doubt that these paragraphs are properly in reply to Moore2 and thus comply with the principles from Sonus.
Paragraph [58] is merely a contextual paragraph for the paragraphs that follow, but is not responding in any meaningful sense to the EIA. I therefore consider that it does not properly form evidence in reply, although I note that it’s inclusion (or not) with the EIR is of no importance in terms of the passages that follow.
The remaining paragraphs ([59] to [61], [64], [65], [68], [70], [72] and [74]) either confirm Dr May’s opinion of the prior art or comprise Mr Hæhre’s comments on the prior art with no apparent connection to the EIA. It is clear that either situation fails the principles from Sonus. Consequently I conclude that these paragraphs are not properly in reply.
In summary I consider that [55] of May2 and [25] to [37], [58] to [61], [64], [65], [68], [70], [72] and [74] of Hæhre are not properly in reply. I will give no further consideration to these passages in determining this matter.
Should Documents be Considered under Regulation 5.23?
The Opponent particularised a total of twelve documents in their SGPs (being the same documents for each SGP). However none of these documents were actually filed into evidence, although I note that the Opponent informed the Commissioner by letter received 23 August 2018 that it had filed and served a copy of each of these documents on the Applicant’s representatives on 8 February 2017. In line with the principles set down in Coal Corporation of Victoria v David William Hinkley and Brian Alan Nugent [1993] APO 56, the Opponent is technically unable to rely upon these documents in presenting its case, since these are not in evidence.
However Regulation 5.23 was introduced as part of the so called Raising the Bar reforms, and allows the Commissioner the discretion to consider certain documents that are before her in determining an opposition. It is repeated below:
“(1) For the purposes of deciding an opposition, the Commissioner may consult a document that:
(a) is relevant to the opposition; and
(b) has not been filed under this Chapter; and
(c) is available in the Patent Office.
(2) If the Commissioner proposes to rely on the document, the Commissioner must give the parties:
(a) notice of the Commissioner’s intention to do so; and
(b) a copy of, or access to, the document; and
(c) an opportunity to give evidence or make representations about the document.”
The operation of regulation 5.23 with respect to whether the Commissioner should rely upon a document has been considered in Merial Limited v Bayer Intellectual Property GmbH [2015] APO 16 (“Merial”) at [24] and [25], where such documents were considered in the context of new information:
“24. I conclude that a decision under regulation 5.23 must have regard to the nature of the information and whether the information is likely, if not certain, to change the outcome of the opposition in a significant way.
25. If the new information is not likely to change the outcome of the opposition in a significant way, there is little advantage gained by bringing it into the opposition. The procedures for evidence laid down in regulation 5.23 will introduce delay to the opposition. On the other hand, if the new information is not relied on in the opposition the Commissioner can reconsider the information at the conclusion of the opposition, and re-examine the application if any amendments resulting from the opposition have not already addressed the issue. In other words, the new information needs to be significantly better than what is already in evidence. Where the new information is a new citation, it should be considered whether it is likely that the ground of lack of novelty or lack of inventive step in the light of the citation would be made out, and whether the ground would not otherwise have been made out.”
At the hearing I pointed out the fact that the documents that the Opponent intended to rely upon were not actually in evidence and that this led to the possibility of invoking Regulation 5.23 in relation to these documents. I also observed that the parties were aware of the documents in question, had given submissions and evidence with respect to these, and would be providing further submissions on the same during the course of the hearing. Consequently I indicated that I considered that both parties had been provided with an opportunity to give evidence or make representations about the documents concerned, and as such the requirements of Regulation 5.23(c) would have been met in the event that I decided to rely on any of the documents in question, since I did not propose to formally rule on the use or otherwise of Regulation 5.23 at that time.
I observe that the use of Regulation 5.23 is at the discretion of the Commissioner (see Merial at [27] and [28]) and there is no reason to suppose that the use of that discretion is incompatible in any way with s60(3). Indeed it is apparent that s60(3) specifically allows the Commissioner to take into account grounds on which a standard patent may be opposed even if these have not been pressed by an opponent, and it is reasonable to conclude that Regulation 5.23 is available to facilitate this power if need be. It should be apparent that my decision whether to invoke s60(3) in relation to novelty with respect to certain citations will go hand in hand with my determination under Regulation 5.23 for those citations, noting that if a citation destroys the novelty of claims that would not otherwise be made out, then such a citation should be incorporated into the opposition via Regulation 5.23
With that in mind I will now consider whether to invoke Regulation 5.23 with respect to any of the twelve citations cited in the SGPs and discussed in the Opponent’s written submissions, beginning with novelty (for the purposes s60(3)) and then inventive step as pressed by the Opponent.
While the Opponent pressed all twelve citations in written submissions, only five of these were discussed at the hearing. These citations are:
· D1: US 4357989;
· D2: WO 2008/147219;
· D3: H. Eriksen, “Development of Calculation Model for Heat Exchangers in Subsea Systems”, first published in 2010;
· D4: US 6338381; and
· D10: WO 2010/002272.
I observe that at the hearing Mr Merrick adopted the Opponent’s written submissions in relation to the remaining citations. However, as can be seen from Merial, the operation of Regulation 5.23 is predicated towards only those documents that would make out a ground that would not otherwise be made out. The Opponent has seen fit to specifically discuss D1 to D4 and D10, with D1, D2 and D4 being singled out for their alleged relevance with respect to novelty. In view of this I consider that D1 to D4 and D10 are prima facie more relevant to potentially making out a ground of opposition than the remaining documents. Therefore I will only consider these documents for the purposes of Regulation 5.23 in the first instance. I will only consider the remaining documents if these would be relevant to making out a ground with respect to the claims beyond what is supplied by D1 to D4 and D10.
I will now consider whether any one or more of D1, D2 or D4 are relevant to the ground of novelty and thus indicate whether or not it would be appropriate to introduce these documents via regulation 5.23 for the purposes of establishing lack of novelty via s60(3).
I observe that the Opponent has pressed lack of inventive step in view of the CGK alone (s7(2)). I will consider this after my considerations on novelty, as this will assist me in determining whether it is necessary to further introduce any one or more of D1 to D4 and D10 (or other documents from the SGP) using regulation 5.23 for the purposes establishing that an any of the claims lack inventive step under s7(3). It should be apparent from Merial that if all the claims lack inventive step in view of the CGK alone, or if s7(3) does no more work in terms of making out inventive step than s7(2), then there is no point in introducing any of the documents concerned.
Are any of D1, D2 or D4 Relevant for Novelty Purposes?
The test for determining novelty is often expressed in the form of the reverse infringement test as given in Meyers Taylor Pty Ltd v Vicarr Industries Ltd [1977] HCA 19 at [20]; (1977) CLR 228 at page 235; 13 ALR 605 at page 611 (“Meyers Taylor”):
“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.”
In determining whether a disclosure comprises an infringement, it is convenient to consider the principles laid down in General Tire & Rubber Company v The FirestoneTyre and Rubber Company Limited [1972] RPC 457 at pages 485-486) (“General Tire & Rubber”) as to what a skilled addressee would do based on the disclosure in question:
“…if carrying out the directions contained in the prior inventor's publication will inevitably result in something being made or done which, if the patentee's patent were valid, would constitute an infringement of the patentee's claim, this circumstance demonstrates that the patentee's claim has in fact been anticipated ... To anticipate the patentee’s claim the prior publication must contain clear and unmistakeable directions to do what the patentee claims to have invented ... A signpost, however clear, upon the road to the patentee's invention will not suffice.”
D1
The Opponent asserted in their written submissions, at [49] that claims 1 to 4, 8, 10 to 17, 19 and 20 of the 231 application lack novelty in view of D1.
D1 discloses a heat exchange circuit for an offshore installation. The offshore installations are said to typically relate to the production and processing of crude oil and gas, and notes that these are “…usually equipped to permit at least some degree of heat exchange with fluids utilized on the platform” (column 1, lines 8 to 10). The specification discusses some problems with using existing air type heat exchangers which typically take up excessive deck space, especially given that deck space it typically at a premium.
As a solution to this problem, D1 discloses a closed circuit which carries an intermediate fluid, such as water. This circuit is in heat exchange with a process fluid and the surrounding seawater, thus enabling the cooling of the process fluid. It is then stated that “…by regulating the volumetric flow of the intermediary liquid, it is possible to minimize the amount of on-deck or exposed heat exchange equipment, while achieving the maximum effect of the heat sink capabilities of the surrounding body of water” (column 1, lines 42 to 47).
The disclosure of D1 is best understood by reference to figures 1 and 3, which are reproduced below. These figures are the most relevant for present purposes.
Figure 1 illustrates an offshore fixed platform 10 comprising a deck 11 and platform legs 14, 16 which have been driven into the substrate 17 beneath the seafloor. Figure 2 (not shown) similarly illustrates a floating offshore platform.
Figure 3 illustrates an embodiment of the cooling system of D1. Here process water that requires cooling, held in reservoir 60, passes through coils 62 within reservoir 61. Reservoir 61 is filled with an intermediate cooling water in heat exchange with the coils 62 so as to control the temperature of the process water. The intermediate cooling water is cooled by passing it through line 63 where after pump 64 and into a closed circuit confined within leg 16. The closed circuit comprises, in order from pump 64, downward header 66, cross branches 68, 69, 71 and upward header 67, which returns the intermediate cooling water back to reservoir 61.
Although the embodiment of figure 3 refers to cooling process water, it is clear that D1 is directed towards cooling process fluids on offshore platforms which includes hydrocarbon fluids; see column 1, lines 5 to 15. I also take it that a flow of hydrocarbons pertaining to offshore production would be understood as a process fluid as known in the art, based on the usage of hydrocarbon process fluid in the applications.
Consequently it is apparent to me that D1 discloses many of the features of the independent claims of the 231 application. It discloses an offshore platform 10. The reservoir 61 and coils 62 are commensurate with the hydrocarbon process heat exchanges of claim 1 and are in heat exchange relationship between the hydrocarbon process fluid and the intermediate cooling water. An intermediate cooling water distribution pipe system that is connected to the hydrocarbon process fluid heat exchanger is apparent on figure 3, formed for example by line 63 and horizontal element (not labelled on figure 3) immediately below reservoir 61 connecting to upward header 67. The cross branches 68, 69, 71 comprise a subsea cooling unit which has an inlet and outlet in fluid communication with the intermediate cooling water distribution pipe system. Downward 66 and upward 67 headers clearly read onto the first and second risers.
The only element that presents me with difficulty is that each of the independent claims of the 231 application require that the subsea cooling unit comprise “one or more subsea cooling modules, each cooling module comprising a plurality of cooling pipes configured in heat exchange relationship with surrounding seawater” (emphasis added).
It is apparent that the cross branches 68, 69, 71 comprise a plurality of cooling pipes in heat exchange with the surrounding seawater. The question is whether the cross branches and associated apparatus (outlined in red on figure 3) in some way comprise a module.
The Macquarie Dictionary (Macquarie Dictionary Online, 2018, Macquarie Dictionary Publishers, an imprint of Pan Macmillan Australia Pty Ltd, provides several definitions of “module”. I have reproduced the most relevant for present purposes below:
“3.a structural component, as a plexiglas cube, used as a basic unit for do-it-yourself furniture.”
The Oxford English Dictionary (OED Online, Oxford University Press, July 2018) has several definitions of “module” of which the most relevant for present purposes is given below:
“9. gen. Any of a series of independent units or parts of a more complex structure, produced to a standard design in order to facilitate assembly and allow mass production. More generally: any more or less self-contained unit which goes to make up a complete set, a finished article, etc.”
Both definitions, especially that from the Oxford English Dictionary, indicate that the component or entity forms an independent unit that is whole in itself or distinct, and which is then used to create or form part of a larger or more complex structure. For present purposes this indicates that the subsea cooling module need be something that is complete in itself prior to incorporation into the hydrocarbon cooling system; that is it is formed into a distinct unit or component prior to forming part of the hydrocarbon cooling system.
It is not clear to me that the cross branches and associated apparatus form a module in the sense outlined above. D1 is wholly silent as to how the cross branches and associated apparatus are put together, and there is nothing to suggest that these conduits are formed together into a unit or component prior to incorporation into the cooling system as a whole. I have no evidence available to me that would indicate that the skilled addressee would necessarily understand that the cross branches and associated apparatus are necessarily formed as a module in D1. Consequently there are no clear and unmistakeable directions with respect to a subsea cooling module in D1. It follows that D1 is not novelty destroying with respect to any of the claims of the 231 application.
The Opponent has primarily relied upon the evidence of Dr May in asserting that D1 is relevant to depriving some of the claims of the 231 application of novelty. In particular the Opponent relies upon the novelty table at Annexure F of its written submissions with this table supported by references to the evidence, in this case from EM-2.
In EM-2, Dr May points to figure 3, items 68, 69, 71 as disclosing the one or more subsea modules, i.e. each of 68, 69, 71 comprise a subsea cooling module. Dr May also states that “General nature of the second heat exchange circuit would include a plurality of pipes and/or modules containing those pipes”. While this may or may not be true, it still does not address whether these are formed into a module, in the sense I have outlined above, in any significant way and thus read onto the claims of the 231 application. Dr May’s evidence appears to simply gloss over this requirement; it would seem that his evidence here is concentrating on the functional aspects of the subsea cooling system of D1, rather than considering the structural limitations imported by the recital of “modules” in the claims.
In this regard I note that Dr May reviewed the prior art first, then was provided with the applications and finally revisited the prior art to “…provide an analysis of the disclosures in the prior art in light of the claims of 231 and 232”. By this statement and the paucity of consideration of the limitation of “modules” it seems that Dr May has analysed the prior art with a view to anticipation or inventive step. This is a further indication that I must treat Dr May’s assertions that D1 discloses a module or modules with a good deal of reservation.
In relation to the above, even if I accept that there were difficulties in subsea cooling (noting that the citation relied upon by the Applicant for this contention is not in evidence), it is not clear to me how this undermines the Opponent’s case on inventive step. The problems to be solved, as properly formulated, relate to particular issues with hydrocarbon cooling systems in offshore platforms (231 application) or subsea processing (232 application). The applications and the inventions so claimed are not directed towards solving the difficulties outlined by the Applicant nor do they do so. Indeed if I were to accept the Applicant’s submissions on this point then there would be serious questions as to whether the applications comply with s40(2)(a). In any case these submissions are largely irrelevant to the question of inventive step at hand.
The Applicant’s suggestion that Dr May is being speculative is a mischaracterisation of his evidence. The passage referred to by the Applicant comes from [23] of May1. When read in context with [22] it is clear that Dr May is stating that the skilled addressee is able to implement a double heat exchanger in a subsea environment using routine skill. There is no evidence disputing this point. I also fail to see how there was any incorrect starting point as the components concerned form part of or arise from the CGK as discussed above. This means that there is no breach of the principles from AstraZeneca.
I also cannot see how Dr May arrived at the substance of the inventions with the benefit of hindsight. As observed earlier, Dr May arrived at his double heat exchanger arrangement prior to seeing the applications in suit or the prior art that the Opponent sought to rely upon. Dr May did so in discussing the CGK and some of the limitations of the known cooling systems which directly relate to the problem to be solved. There is no evidence to suggest that Dr May was led in his evidence or has been asked to invent, and I find his discussion of the double heat exchanger to naturally flow from his discussion of the CGK and some of the problems with it. I see no reason to believe that Dr May is exercising inventive faculty in reaching the crux of the inventions. Consequently I reject the Applicant’s assertions in this regard.
I also observe that while the evidence does not necessarily demonstrate that double heat exchangers were CGK per se in the art (at least in terms of being used in the art), it is clear from my discussion above that they comprise an obvious combination of CGK when faced with the problem to be solved. In addition Dr May’s evidence also indicates that he was aware that such systems were well-known in land based cooling systems; this suggests that the knowledge of the skilled addressee extends to the existence of double heat exchangers, even if these were not used specifically in the art. Altogether I do not find it surprising that the skilled addressee would generally be aware of well-known cooling systems used in other applications or contexts. It would be reasonable to expect that the skilled addressee would draw on such knowledge when solving problems in the art. Other than attacks on Dr May’s suitability to represent the skilled addressee, which I have already rejected, there is no evidence disputing Dr May’s statements with regard to double heat exchangers.
I also note that the Applicant has argued that while elements of his inventions were CGK, it is the combination of these elements that comprise the inventive step. Although there is discussion of this in his written submissions and at the hearing, this point is best illustrated at [25] of Moore2:
“At paragraph 26, May alleges that the 'inventions described in 231 are straight-forward.' I consider this to be an incorrect assessment. Whilst I can appreciate that individual components of the invention are known, the invention does not reside in the individual components. Rather, the invention resides in the particular claimed combination of components which provides a unique and new methodology of cooling. Making the design practical and suitable for deployment in 'real life' engineering projects is a component of the innovation behind 231. I consider it telling that the opponent has not been able to provide engineering designs that replicate 231 or 232 in any 'real life' or proposed oil and gas project and that a primary reason for this is that what is described and claimed in 231 and 232 is innovative. If these designs were not innovative, I would expect that the opponent would be able to readily provide engineering designs or drawings that illustrate the design.”
The Applicant is correct in that the question of inventiveness is not answered by simply dividing the claimed invention up into integers and asserting that each was well known. To do so would be contrary to well established principles as outlined in Aktiebolaget Hassle. However Dr May’s evidence, and the evidence in general as I have discussed it, indicates that the crux of each of the inventions would be arrived at by the skilled addressee in seeking solutions to the problems to be solved. The remaining features of the independent and the additional features defined in the dependent claims comprise straightforward applications of CGK on implementing the crux of each invention, or would recommend themselves from the CGK in doing so. Consequently I do not consider that there was any inventiveness in the combination of features as asserted by the Applicant.
Finally the fact that the Opponent has been unable to provide engineering designs that replicate the applications is largely irrelevant to the question of inventive step. The reasons for this are twofold. Firstly the fact that the Opponent has not actually provided engineering designs that replicate the inventions in real life is little more than an assertion that as the inventions are novel, then they must be inventive. Such an assertion is plainly incorrect. Secondly, for reasons as discussed earlier in this decision, I do not consider that either of the applications, either as described or as claimed, actually deal with”…making the design practical and suitable for deployment in real life engineering projects…” as asserted by the Applicant.
Should any further documents be introduced via Regulation 5.23 for Inventive Step?
I note that I have found that all claims of both applications lack inventive step in view of the CGK alone. Consequently any documents putatively introduced for the purposes of inventive step would be merely redundant in that they would, at best, simply confirm a ground of opposition already made out. Consequently, in line with the principles from Merial, I decline to exercise regulation 5.23 with respect any of the prior art relied upon by the Opponent for establishing inventive step.
Conclusion
The Opponent’s request under s36 is unsuccessful. The Opposition under s59 has successfully made out lack of inventive of step under s7(2) of claims 1 to 20 of the 2012253231 application and claims 1 to 18 of the 2012253232 application. No other grounds of opposition have been made out. I decline to exercise regulation 5.23 in relation to documents not in evidence. I also decline to exercise my power under 60(3) as I do not consider that any of the claims of either of the applications lack novelty.
Costs
Costs usually follow the event. However there are a number of reasons why I consider that varying the usual award of costs is appropriate. These are that the Opponent: failed to provide any written submissions on the entitlement question (under either s36 of s59), but failed to indicate this at the time their written submissions were filed; did not provide any oral submissions at the hearing on the entitlement issue, but clearly indicated that it was not dropping this issue under either s36 or s59; and failed to put any of the prior art that it wished to rely upon into evidence, leading to considerations under regulation 5.23. In view of these facts I consider it appropriate to make no award of costs.
Dr W.E. Guinea
Delegate of the Commissioner of Patents
Annex A – Claims of the 2012253231 Application.
1. A hydrocarbon cooling system for an offshore platform, said system comprising:
one or more hydrocarbon process fluid heat exchangers arranged in heat exchange communication between a hydrocarbon process fluid and a cooling medium fluid;
a cooling medium fluid distribution pipe system connected to the hydrocarbon process fluid heat exchangers; and,
a subsea cooling unit for cooling the cooling medium fluid, the subsea cooling unit comprising:an inlet and an outlet arranged in fluid communication with the cooling medium fluid is distribution pipe system;
one or more subsea cooling modules, each cooling module comprising a plurality of cooling pipes configured in heat exchange relationship with surrounding seawater;
a first riser arranged to provide fluid communication between the inlet and the one or more subsea cooling modules; and a second riser arranged to provide fluid communication between the one or more subsea cooling modules and the outlet.
2. The system according to claim 1, wherein the offshore platform is a fixed offshore platform.
3. The system according to claim 1, wherein the offshore platform is a floating offshore platform.
4. The system according to any one of claims 1 to 3, wherein the one or more subsea cooling modules are 35 located above the sea bed.
5. The system according to claim 4, wherein the one or more subsea cooling modules are supported by one or more respective mud mats residing on the sea bed.
6. The system according to claim 5, wherein the one or more respective mud mats comprise a pallet.
7. The system according to claim 5, wherein the one or more respective mud mats incorporate lengths of pipe through which the cooling medium fluid is circulated and/or distributed to the one or more cooling modules.
8. The system according to any one of the preceding claims, wherein the one or more cooling modules are located remotely from the offshore platform.
9. The system according to claim 8, wherein the first and second risers are arranged in fluid communication with the cooling modules via respective seabed pipes.
10. The system according to any one of the preceding claims, wherein the one or more subsea cooling modules are located substantially laterally with respect to the offshore platform.
11. The system according to claim 10, wherein the one or more subsea cooling modules are tethered to the offshore platform.
12. The system according to any one of the preceding claims, further comprising one or more pumps to circulate the cooling medium fluid through the heat exchange circuit and the subsea cooling unit.
13. A subsea cooling unit for cooling a cooling medium fluid circulating through a heat exchange circuit on an offshore platform, the heat exchange circuit having a cooling medium fluid distribution pipe system, the subsea cooling unit comprising:
an inlet and an outlet arranged in fluid communication with the cooling medium fluid distribution pipe system;
one or more subsea cooling modules, each cooling module comprising a plurality of cooling pipes configured in heat exchange relationship with surrounding seawater;
a first riser arranged to provide fluid communication between the inlet and the one or more subsea cooling modules; and a second riser arranged to provide fluid communication between the one or more subsea cooling modules and the outlet.
14. The subsea cooling unit according to claim 13, wherein the plurality of cooling pipes are configured in 15 a manifold of parallel lengths of pipe.
15. The subsea cooling unit according to claim 13, wherein the plurality of cooling pipes are configured in a coiled or other shaped arrangement.
16. The subsea cooling unit according to claim 13, wherein the one or more subsea cooling modules is coiled around at least part of a substructure of the offshore platform.
17. The subsea cooling unit according to any one of claims 13 to 16, wherein the one or more subsea cooling modules is provided with an open-ended shroud to direct flow of seawater over the subsea cooling modules and/or increase thermal convection from the subsea cooling modules.
18. The subsea cooling unit according to claim 17, wherein the shroud is provided with baffles, vanes or 35 means for increasing and/or directing flow of seawater over the subsea cooling modules.
19. A method of cooling a hydrocarbon process fluid on an offshore platform, said method comprising:
passing the hydrocarbon process fluid through a hydrocarbon process fluid heat exchanger and passing a cooling medium fluid through a cooling medium fluid distribution pipe system, wherein said heat exchanger and said pipe system are configured to provide heat exchange communication between the hydrocarbon process fluid and the cooling medium fluid, thereby producing a cooled hydrocarbon fluid and a heated cooling medium fluid; and,
cooling the heated cooling medium fluid by passing the heated cooling medium fluid through a subsea cooling unit, wherein the subsea cooling unit comprises:an inlet and an outlet arranged in fluid communication with the cooling medium fluid distribution pipe system;
one or more subsea cooling modules, each cooling module comprising a plurality of cooling pipes configured in heat exchange relationship with surrounding seawater;
a first riser arranged to provide fluid communication between the inlet and the one or more subsea cooling modules; and
a second riser arranged to provide fluid communication between the one or more subsea cooling modules and the outlet.
20. A method of processing a hydrocarbon process fluid on a topsides facility comprising:
treating the hydrocarbon process fluid in one or more process steps to produce a treated hydrocarbon fluid, whereby one of the process steps comprises cooling the hydrocarbon process fluid; wherein cooling the treated hydrocarbon process fluid comprises:
passing the treated hydrocarbon fluid through a hydrocarbon process fluid heat exchanger and passing a cooling medium fluid through a cooling medium fluid distribution pipe system, wherein said heat exchanger and said pipe system are configured to provide heat exchange communication between the hydrocarbon process s fluid and the cooling medium fluid, thereby producing a cooled hydrocarbon fluid and a heated cooling medium fluid; and, cooling the heated cooling medium fluid by passing the heated cooling medium fluid through a subsea cooling unit, wherein the subsea cooling unit comprises:
an inlet and an outlet arranged in fluid communication with the cooling medium fluid distribution pipe system; one or more subsea cooling modules, each cooling module comprising a plurality of cooling pipes configured in is heat exchange relationship with surrounding seawater;
a first riser arranged to provide fluid communication between the inlet and the one or more subsea cooling modules; and
a second riser arranged to provide fluid communication between the one or more subsea cooling modules and the outlet.
Annex B – Claims of the 2012253232 Application
1. A subsea hydrocarbon cooling system, said system comprising:
one or more hydrocarbon process fluid heat exchangers arranged in heat exchange communication between a hydrocarbon process fluid and a single phase cooling medium fluid, wherein the one or more hydrocarbon process fluid heat exchangers are located subsea;
a cooling medium fluid distribution pipe system connected to the hydrocarbon process fluid heat exchangers; and,
a subsea cooling unit for cooling the cooling medium fluid, the subsea cooling unit comprising:an inlet and an outlet arranged in fluid communication with the cooling medium fluid distribution pipe system;
a flow controller to control the flow of cooling medium fluid in said system;
one or more subsea cooling modules, each cooling module comprising a plurality of cooling pipes configured in heat exchange relationship with surrounding seawater;
a first conduit for providing fluid communication between the inlet and the one or more subsea cooling modules; and
a second conduit for providing fluid communication between the one or more subsea cooling modules and the outlet.
2. The system according to claim 1, wherein the one or more subsea cooling modules are located above the sea bed.
3. The system according to claim 2, wherein the one or more subsea cooling modules are supported by one or more respective mud mats residing on the sea bed.
4. The system according to claim 3, wherein the one or more respective mud mats comprise a pallet.
5. The system according to claim 4, wherein the one or more respective mud mats incorporate lengths of pipe through which the cooling medium fluid is circulated and/or distributed to the one or more cooling modules.
6. The system according to any one of the preceding claims, wherein the first and second conduits are arranged in fluid communication with the cooling modules via respective seabed pipes.
7. The system according to any one of the preceding claims, wherein the flow controller comprises a pump or a flow control valve.
8. A subsea cooling unit for use in a hydrocarbon process fluid cooling system, said unit being adapted to cool a single phase cooling medium fluid circulating through a subsea heat exchange circuit, the subsea heat exchange circuit having a cooling medium fluid distribution pipe system, the subsea cooling unit comprising:
an inlet and an outlet arranged in fluid communication with the cooling medium fluid distribution pipe system;
a flow controller to control the flow of cooling medium fluid in the subsea heat exchange circuit;
one or more subsea cooling modules, each cooling module comprising a plurality of cooling pipes configured in heat exchange relationship with surrounding seawater;
a first conduit arranged to provide fluid communication between the inlet and the one or more subsea cooling modules; and
a second conduit arranged to provide fluid communication between the one or more subsea cooling modules and the outlet.
9. The subsea cooling unit according to claim 8, wherein the plurality of cooling pipes are configured in a manifold of parallel lengths of pipe.
10. The subsea cooling unit according to claim 8, wherein the plurality of cooling pipes are configured in a coiled arrangement.
11. The subsea cooling unit according to claim 8, wherein the one or more subsea cooling modules is coiled around at least part of a substructure of an offshore platform.
12. The subsea cooling unit according to claim 8, wherein the one or more subsea cooling modules is coiled around a subsea facility.
13. The subsea cooling unit according to any one of claims 8 to 12, wherein the one or more subsea cooling modules is provided with an open-ended shroud to direct flow of seawater over the subsea cooling modules and/or increase thermal convection from the subsea cooling modules.
14. The subsea cooling unit according to claim 13, wherein the shroud is provided with baffles, vanes or means for increasing and/or directing flow of seawater over the subsea cooling modules.
15. A method of cooling a hydrocarbon process fluid, said method comprising:
passing the hydrocarbon process fluid through a subsea hydrocarbon process fluid heat exchanger and passing a single phase cooling medium fluid through a cooling medium fluid distribution pipe system, wherein said subsea heat exchanger and said pipe system are configured to provide heat exchange communication between the hydrocarbon process fluid and the cooling medium fluid, thereby producing a cooled hydrocarbon fluid and a heated cooling medium fluid; and,
cooling the heated cooling medium fluid by passing the heated cooling medium fluid through a subsea cooling unit, wherein the subsea cooling unit comprises:an inlet and an outlet arranged in fluid communication with the cooling medium fluid distribution pipe system;
a flow controller to control the flow of cooling medium fluid through-a subsea heat exchange circuit;
one or more subsea cooling modules, each cooling module comprising a plurality of cooling pipes configured in heat exchange relationship with surrounding seawater;
a first conduit arranged to provide fluid communication between the inlet and the one or more subsea cooling modules; and
a second conduit arranged to provide fluid communication between the one or more subsea cooling modules and the outlet.
16. The method according to claim 15, wherein prior to passing the heated cooling medium fluid through the subsea cooling unit, said method comprises passing the heated cooling medium fluid through said pipe distribution system and passing a second hydrocarbon process fluid through a second subsea heat exchanger, wherein said pipe distribution system is configured in a heat exchange relationship with the second subsea heat exchanger.
17. The method according to claim 16, wherein the cooling medium fluid is cooled by thermal exchange with the second hydrocarbon process fluid.
18. The method according to claim 16, wherein the cooling medium fluid is heated by thermal exchange with the second hydrocarbon process fluid.
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