Field Engine Wildlife Research and Management LLC [2025] APO 36 (23 October 2025)

1. The present matter concerns Australian patent application 2022263584 (the present application) which was filed on 4 November 2022 in the name of Field Engine Wildlife Research and Management LLC (the Applicant). The patent request claims divisional status from Australian application number 2020264312 (the parent patent) which has been granted. The parent is a Convention application filed on 04 November 2020 which claims priority from three US patent applications: US 62/935,272, filed on 14 November 2019; US 63/011,546, filed on 17 April 2020; and US 17/084,944, filed on 30 October 2020.

1. Examination of the present application was requested on 18 January 2023 and was subject to three examination reports as detailed below.

1. Examination Report No. 1 was issued on 22 February 2024. Examination Report No. 1 raised an objection for a lack of unity, consequently the examination opinion was restricted to claims 1-7, to which there were no further objections.

1. Examination Report No. 2 was issued on 11 July 2024, and raised objections that claims 7-12 were not novel and/or lacked an inventive step in view of two prior art documents (considered independently).

1. Examination Report No. 3 (the report) was issued on 20 February 2025. The report maintained that claims 7-16 lack an inventive step over D1 and D5 (again considered independently), and these remain the only outstanding objections.

1. Amendments to the claims of the specification have been proposed by the Applicant on 12 June 2024 and 18 February 2025. No objection has been taken to these amendments during examination, and I cannot see any reason for which they would not be allowable. All further references to the specification will be to that as proposed to be amended on 18 February 2025 unless stated otherwise.

1. On 21 February 2025, the Applicant wrote to the Commissioner requesting to be heard in relation to the outstanding objections. On 15 April 2025, the Commissioner wrote to the Applicant, advising them that the hearing would be by way of written submissions due within six weeks. The Applicant filed their submissions in this regard on 27 May 2025 (the submissions).

1. The final date for acceptance of the application was 22 February 2025, however paragraph 13.4(1)(g) of the Patent Regulations extends the time for gaining acceptance to 3 months from the date of the present decision, since the Commissioner provided an opportunity to be heard under s45 and notified the Applicant of the date by which written submissions must be filed. Alternatively, Reg 13.4(3) allows the Commissioner to substitute a period longer than 3 months if the Commissioner is satisfied that acceptance of the patent request and complete specification should be postponed.

1. The present application is governed by the Patents Act 1990 (the Act) as amended by the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 (the RTB Act) which commenced on 15 April 2013.

1. Under Subsection 49(1), I must accept the application if satisfied on the balance of probabilities that the application complies with the Act. If I am not so satisfied, then I can refuse the application pursuant to subsection 49(2). I will, however, only refuse the Application if I am also satisfied that providing the Applicant with an opportunity to amend and/or undergo further examination will serve no useful purpose; for example, if I consider that any potential negative findings are not rectifiable by an allowable amendment.

1. The invention as described in the full specification relates to an animal trapping system and method which utilises collapsible netting. In particular, the animal trapping system is directed primarily, though not exclusively, towards the capture of feral swine. The background to the specification discusses several problems with existing trapping systems, particularly in the context of trapping wild pigs, at paragraphs [0008]-[0009]:

"Various traps are known, but none of these traps are capable of readily being used in all settings and therefore are limited. For example, feral swine are often present in remote areas, not easily accessible by vehicle. Box traps are typically large, heavy structures not easily carried, if at all, to a remote location. Indeed, the size and weight of box traps often not only limits where they can be utilized, but also how many swine may be caught therein. In some instances, box traps may be disassembled for transport, but then must be reassembled in the field - but the overall weight of the trap does not change. Box traps also typically have an elaborate door mechanism that permits ingress, but no exit, or remotely controlled doors that require a user to monitor the trap (e.g., via camera).

Some corral traps formed from stiff wire fencing may overcome the shortcomings of box traps, but they too have their own shortfalls. Although lighter than box traps, and typically larger than box traps, corral traps can also be prohibitively heavy and difficult to transport. The time required to set up stiff wire corral traps is typically significant, often requires some amount of environment clearance to enable the stiff wire fencing to be installed, and may be limited to use on flat ground areas. Like box traps, corral traps also typically utilize elaborate door mechanisms."

1. To overcome the limitations of these prior art trapping systems, the Applicant has developed an animal trap which utilises a netting structure as outlined in Fig. 1 and paragraph [0084]:

"Once the operator is ready to capture animals, some amount of bait is disposed in the interior region 26 of the trap 20 and the net structure 22 is closed (e.g., the lengthwise ends 32, 34[1]of the net structure 22 attached to one another, and the ground portion 50[2] secured to the ground; i.e., the set configuration). As can be seen in FIGS. 1, 5, and 6, in this set configuration, at least a portion of the wall portion 48 curves radially inwardly and eventually contacts the ground. The inward radial curvature of the wall portion 48 is understood to facilitate animal entry into the trap 20. The collapsible, flexible, and lightweight nature of the net structure 22 allows animals to work their way under the net structure 22 with minimal resistance, past the lower lateral edge 38[3] of the net structure 22, to access the bait. Feral swine, in particular, naturally root with their snouts, and this rooting behaviour will naturally raise some of the wall portion 48 and the ground portion 50, thereby providing access to the interior region 26 of the animal trap 20. Once the animal has travelled completely under the net structure 22, gravity causes the net structure 22 to fall back to the ground and the animal is trapped. In contrast to solid cage traps or corral traps formed from stiff wire fencing that only permit ingress through a particular door structure, the present disclosure trap 20 allows an animal to enter the trap 20 at any circumferential position of the trap 20. This aspect is believed to increase the confidence of the animals being trapped and consequently the yield of the trap 20."

1. As apparent from Fig. 1, the trap 20 comprises supports for the net 22. In Fig. 1 these supports are posts 24, which are driven into the ground so as to allow for secure mounting of the net 22. The application refers to the use of metal posts, but notes that the invention is not limited to the use of these, and one could, for example, simply make use of trees that are present where the trap is to be set. Tensioning structures 58 may also be used to ensure that the posts adequately tension upper cord 30 of net 22. Whatever the case, it is clear that supports of some kind are necessary to enable the trap 20 to be operable. In particular, there does not appear to be any disclosure of or suggestion that any of the net structures disclosed in the application would, per se, be able to capture animals when not in the "set configuration".

1. It is apparent from the application that the Applicant's invention improves on the traps in the prior art by implementing a flexible net structure in a particular animal trap arrangement exploiting, in the case of wild pigs, the behaviour of the same. Paragraphs [0085] and [0089] outlines advantages of the present animal traps over the prior art alternatives in that they are:

• lighter and collapsible, allowing for greater transportability,
• substantially less expensive,
• simpler in operation, owing to the absence of an intricate door mechanism,
• more versatile, in that they do not require the trap area to be cleared and may be used on sloped ground, and that
• once set-up, the animal traps do not require any human intervention.

1. The specification describes several embodiments all directed to further improvements of the animal trapping system/methodology and/or modifications made to the flexible net structure to deal with additional issues particular to the trapping of wild pigs. Of relevance for this decision are those embodiments dealing with the use of a secondary net layer and the suitable/preferred dimensions of the net structure per se.

1. As may be seen from Fig. 6, reproduced below and discussed at [0063], a secondary net 52 is present on the interior of the lower part of primary net 28 so as to comprise a secondary wall portion. In such embodiments, the net opening size of the secondary wall portion may be smaller than the net opening size of the adjacent net, and further that the secondary wall portion may have a lighter twine size than the adjacent net. For these nets, the heavier twine size of the (primary) net 28 provides strength, while the light twine size and smaller openings of the secondary net in the lower wall region helps prevent the entanglement of the captured animals. In addition, the lighter twine size and smaller openings also possess greater drapability to maintain ground contact and prevents animals from escaping.

1. Paragraph [0068] discusses the design of the net structure to ensure it has the desired behaviour when in the "set configuration". This paragraph outlines that the net structure, when configured, requires the lower lateral edge to have a smaller circumference relative to the upper lateral edge. The purpose of this is two-fold such that it ensures that the net, when in the set configuration, can arcuately transition radially inward with sufficient ground contact portion as well as ensuring that the net is prevented from being pushed radially outwards beyond the supporting posts. These effects help to prevent captured animals from escaping the trap.

1. Paragraph [0068] also outlines that the relatively smaller lower lateral length/circumference may be achieved in two ways: (a) by having a net structure having "a tapered configuration that produces the smaller diameter at the lower lateral edge" (as shown in Fig. 3, reproduced below), or (b) alternatively the ground portion may be "cinched up" by way of folding and fasteners to create a smaller diameter/circumference at the lower lateral edge (Fig. 3A, reproduced below).

1. The Application comprises 16 claims of which claims 1 and 7 are independent. Claim 7 as proposed to be amended is reproduced below; the full claim set can be found at Annex A to this decision. For convenience I have indented and enumerated the features of claim 7.

7.1.1 formed from a plurality of spaced apart flexible lines that define a plurality of openings within the net,

7.1.2 the net having a width that extends between an upper lateral edge and a lower lateral edge, a first length that extends between a first lengthwise end and a second lengthwise end at the upper lateral edge, and a second length that extends between the first lengthwise end and the second lengthwise end at the lower lateral edge,

7.1.3 wherein the second length is less than the first length; and

7.2 a flexible upper cord attached to the collapsible net at the upper lateral edge extending the first length of the net;

7.3 wherein the collapsible net is configurable in a closed configuration where the first lengthwise end and the second lengthwise end are disposed proximate each other, and the lower lateral edge defines a trap opening; and

7.4.2 disposed on an interior side of the flexible net structure between the upper lateral edge and the lower lateral edge,

7.4.3 extending between the first lengthwise end and the second lengthwise end and extending downwardly toward the lower lateral edge.

The appended claims 8-16 serve to further define features of the animal trap net structure. As the Applicant has made no submissions regarding the appended claims, I will not have regard to them unless it becomes necessary to do so.

1. The specification is to be construed through the eyes of the person skilled in the art (PSA). The skilled person may be an individual or team of people, having a practical interest in the subject matter of the invention. While well versed in the relevant field, the person skilled in the art is taken to be non-inventive (Root Quality Pty Ltd v Root Control Technologies Pty Ltd [2000] FCA 980 at [71]- [72]; referring to Catnic Components Ltd v Hill & Smith Ltd [1982] RPC 183 at 242 and The General Tire & Rubber Company v The Firestone Tyre & Rubber Company Ltd [1972] RPC 457 at 485).

1. The identity of the person skilled in the art does not appear to have been discussed in the process of examination. I expect this is largely because there is little contention on the matter. For the sake of completeness, I consider it clear that the relevant person or team would include those with a working knowledge of the design, construction, and implementation of free-standing animal traps (especially those used to trap wild boar). Moreover, I consider the skilled person/team would include a materials engineer familiar with selection of, in particular, rope/twine materials.

1. There were no matters of construction in contention during examination, nor do I consider it necessary to construe the claims in detail, the claims themselves for the most part being quite plain in their own terms. However, prior to turning to the specifics of the Examiner's objections, I consider it convenient to construe certain aspects of the claims that will be of assistance in considering the outstanding objections.

1. The rules of construction for an Australian patent specification are well summarized in Decor Corp v Dart Industries [1988] FCA 399; 13 IPR 385, however the correct application of these rules to the construction of claims was discussed by Bennett J in H Lundbeck A/S v Alphapharm Pty Ltd [2009] FCAFC 70; 81 IPR 228 (Lundbeck) at [118] - [120]:

"[T]he words in a claim should be read through the eyes of the skilled addressee in the context in which they appear...while the claims define the monopoly claimed in the words of the patentee's choosing, the specification should be read as a whole ... it is not permissible to read into a claim an additional integer or limitation to vary or qualify the claim by reference to the body of the specification...terms in the claim which are unclear may be defined or clarified by reference to the body of the specification."

1. I would also note what was said in Eli Lilly and Company Limited v Apotex Pty Ltd [2013] FCA 214 (Eli Lilly) at [139]:

"It is well settled that the Court should, from the outset, approach the task of patent construction with a generous measure of common sense. The Court must place itself in the position of a person skilled in the relevant art, being the subject matter of the patent. From this perspective, the patent is to be read as a whole, in the context of the specification and in light of the prevailing common general knowledge and state of the relevant art at the priority date."

Flexible net structure, collapsible net, and the secondary net

1. Claim 7 defines a flexible net structure (feature 7, claim pre-amble) which comprises, inter alia, both a collapsible net (7.1) and a secondary net (7.4). In this regard I note that a "net structure" may be plainly construed as any structure which deals with and/or comprises at least one net. I further note that the net structure as claimed is different to a "net trap" and fairly includes net structures for purposes other than trapping animals.

1. Secondly, the adjectives "flexible" and "collapsible" each serve to functionally limit the net structure and net integers. However, these terms do not limit these integers to be sufficiently flexible or collapsible for any particular purpose, and hence I do not construe them to limit the scope of the claim beyond excluding strictly rigid structures.

wherein the collapsible net is configurable in a closed configuration where the first lengthwise end and the second lengthwise end are disposed proximate each other, and the lower lateral edge defines a trap opening

1. The term "configurable" creates a functional definition of the collapsible net. That is, the collapsible net here is limited such that it must be able to be configured in a closed configuration, wherein the lower lateral edge defines a trap opening. The limitation imparted by this phrase does not require that the collapsible net is configured in this way, nor that the lower lateral edge strictly defines a trap opening, merely that it is able to be configured as such. I note, nominally, that this functional definition is defined against the collapsible net, not the overall net structure to which the claim preamble is drawn.

1. However, the secondary net is attached to the "flexible net structure, between the upper and lower lateral edge". While the claim language is somewhat circular and cumbersome, the reference to the secondary net being disposed between the upper and lower lateral edges and extending between the first and second lengthwise ends indicates that the secondary net would be understood as being attached to the collapsible net and in effect be subject to the same functional limitations as the collapsible net.

A collapsible net [...] wherein the second length is less than the first length

1. Construed plainly, features 7.1.2 and 7.1.3 limit the [primary] net (7.1) such that it has a second (lower) length which is less than a first (upper) length. I note that lower and upper absent the context of the trapping system are arbitrary designations. Such nets include the annular sector of Fig. 3 (supra), however extends to other nets such as those with a trapezial shape, or other irregular shapes.

1. What is not immediately apparent from the language of the claim is whether the defined lengths relate strictly to the net "as manufactured" (that is the net as defined only by its unmodified reticulated structure), or may include nets which are manipulated in some manner (e.g. folded, pleated, or cinched) to define the lengths (the net as arranged). That is, does claim 7 include nets similar to that of Fig. 3A?

1. In my view, I think provided a modification is made to a net that is of a fixed, (semi-)permanent character then the modified net may be considered as a net itself possessing its own second length distinct from the length of the non-modified net. An impermanent arrangement however, such as merely folding or bunching the net absent any fixings, would merely be a folded net having the second length associated with the net in the unfolded, unbunched state.

...disposed on an interior side of the flexible net structure between the upper lateral edge and the lower lateral edge... & ...extending between the first lengthwise end and the second lengthwise end

1. In construing the relationship between the secondary net and the (primary) net it is helpful to refer to some relevant entries from Macquarie English Dictionary (Macquarie Dictionary Online, 2023, Macquarie Dictionary Publishers, an imprint of Pan Macmillan Australia Pty Ltd, www.macquariedictionary.com.au, hereinafter the "Macquarie Dictionary"). The Macquarie Dictionary most relevantly provides the following:

2. to stretch, draw, or arrange in a given direction, or so as to reach a particular point, as a cord or a line of troops.

1. in the space separating (two or more points, objects, etc.).

1. With regards to the secondary net being disposed between two edges, I have read this to mean that the secondary net is substantially located in the space between the two lateral edges in agreement with definition 1 of "between". The Applicant's submissions seem to suggest, in view of the disclosure of D5 which I will come to later, that extension beyond (in addition to between) the edges would not be within the scope of this meaning. While I notionally agree that being "disposed between" excludes embodiments where the secondary net extends substantially beyond the lateral edges of the net, I do not consider that the skilled person would exclude from their construction arrangements wherein such an extension beyond the edges is of a trivial magnitude.

1. Regarding the secondary net extending between the two lengthwise ends, I prefer the construction that the secondary net must connect the two edges (definition 3 of "between", and compatible with both provided definitions of "extend"). The alternative interpretation of the secondary net being merely arranged in a direction (i.e. from the first end to the second end; first part of definition 2 of "extend") and located in the space between the two ends (definition 1 of "between") appears to be an unnatural use of language. In my view, the preferred construction not only more closely purports with how these words would be understood in an everyday context but is also supported by the apparently deliberate drafting choice to distinguish "extending between" from "disposed ... between".

1. The most relevant entry in the Macquarie Dictionary for "cord" and "rope" is reproduced below.

1. a string or small rope composed of several strands twisted or woven together."

1. a strong, thick line or cord, commonly one composed of twisted or braided strands of hemp, flax, or the like, or of wire or other material."

1. On this basis, I do think the scope of the term "cord" does not include merely "a strand" and requires multiple "strands" combined by some means to form a string or rope. I however do not consider cord in the context in which it appears in the claim to be otherwise particularly limited in material and could include for example braided wire ropes (provided that they could be considered as "flexible"). I further do not think the term "flexible" to be particularly limiting in this context, and merely serves to exclude entirely rigid structures (that is the cord need not be particularly longitudinally elastic to be considered "flexible").

1. The statutory basis for inventive step is set out at s7(2) and s7(3) as reproduced below:

"(2) For the purposes of this Act, an invention is to be taken to involve an inventive step when compared with the prior art base unless the invention would have been obvious to a person skilled in the relevant art in the light of the common general knowledge as it existed (whether in or out of the patent area) before the priority date of the relevant claim, whether that knowledge is considered separately or together with the information mentioned in subsection (3).

(3) The information for the purposes of subsection (2) is:

(b) a combination of any 2 or more pieces of prior art information that the skilled person mentioned in subsection (2) could, before the priority date of the relevant claim, be reasonably expected to have combined."

1. The question of what it means for an invention to be obvious has been considered extensively by the courts. In Aktiebolaget Hassle v Alphapharm Pty Ltd [2002] HCA 59; 212 CLR 411 at [53] ("Aktiebolaget"), the High Court accepted the approach taken in Olin Mathieson Chemical Corporation v Biorex Laboratories Ltd [1970] RPC 157 at [187] where Graham J posed the reformulated Cripps question:

"Would the notional research group at the relevant date, in all the circumstances, ... directly be led as a matter of course to try [the claimed combination] in the expectation that it might well produce a [useful or better result]?"

1. When considering whether or not an invention is obvious it is important to avoid so-called ex post facto analysis. Such an analysis which leverages the benefits of hindsight knowledge of the invention may result in an incorrect conclusion that an invention would have been obvious over the prior art. A common method to mitigate such hindsight reasoning is the problem-solution approach as derived from Wellcome Foundation Ltd. v VR Laboratories (Aust) Pty. Ltd. [1981] HCA 12 at [45]; (1981) 148 CLR 262 at 286 ("Wellcome Foundation"), where Aickin J. stated:

"The test is whether the hypothetical addressee faced with the same problem would have taken as a matter of routine whatever steps might have led from the prior art to the invention, whether they be the steps of the inventor or not."

1. Regarding defining the problem, I am mindful of the statements of the majority of the Full Bench of the Federal Court in AstraZeneca AB v Apotex Pty Ltd [2014] FCAFC 99 ("AstraZeneca") at [202]-[203]:

"[I]t is apparent that the relevant provisions of the Act do not expressly or impliedly contemplate that the body of knowledge and information against which the question whether or not an invention, so far as claimed, involves an inventive step is to be determined may be enlarged by reference to the inventor's (or patent applicant's) description in the complete specification of the invention including, in particular, any problem that the invention is explicitly or implicitly directed at solving.

If the problem addressed by a patent specification is itself common general knowledge, or if knowledge of the problem is s 7(3) information, then such knowledge or information will be attributed to the hypothetical person skilled in the art for the purpose of assessing obviousness."

1. I observe that the problem-solution approach may not be appropriate in circumstances where the invention does not solve any particular problem, however the Applicant has not suggested that the problem-solution approach would be inappropriate in the present circumstances. Indeed, the Applicant's citing[4] of the approach from Wellcome Foundation suggests that the Applicant considers that the problem-solution approach is appropriate.

1. The Applicant has emphasised in their submissions that the skilled person would not be led specifically to the combination of the particular features (as well as arguing that specific features are non-obvious). Many inventions are defined by such a combination of features.

1. Where the invention may lie in a combination of features, I must consider whether the combination is obvious, not whether each of the separate integers of the combination is obvious: Aktiebolaget at [119]; and Minnesota Mining & Manufacturing Co. v Beiersdorf (Australia) Ltd. (1980) HCA ("Minnesota Mining") at [116]:

"The proper question is not whether it would have been obvious to the hypothetical addressee who was presented with an ex post facto selection of prior specifications that elements from them could be combined to produce a new product or process. It is rather whether it would have been obvious to a non-inventive skilled worker in the field to select from a possibly very large range of publications the particular combination subsequently chosen by the opponent in the glare of hindsight and also whether it would have been obvious to that worker to select the particular combination of integers from those selected publications. In the case of a combination patent the invention will lie in the selection of integers, a process which will necessarily involve rejection of other possible integers. The prior existence of publications revealing those integers, as separate items, and other possible integers does not of itself make an alleged invention obvious. It is the selection of the integers out of, perhaps many possibilities, which must be shown to be obvious."

1. Regarding the level of inventiveness required to sustain a patent Full Federal Court in Garford Pty Ltd v Dywidag Systems International Pty Ltd [2015] FCAFC 6 at [44] the following:

"The inventiveness required to sustain a patent for a claimed invention is quite small. A 'scintilla' of inventiveness is all that is required: Alphapharm at [195]. However, there must still be 'some difficulty overcome, some barrier crossed' (per Lockhart J in RD Werner & Co Inc v Bailey Aluminium Products Pty Ltd [1989] FCA 57; (1989) 25 FCR 565 at 574) or some contribution to the art "beyond the skill of the calling" (Allsop Inc v Bintang Ltd [1989] FCA 297; (1989) 15 IPR 686 at 701)."

1. The outstanding objections as detailed in Examination Report No. 3 relate to the ground of inventive step. At item 3 of the report, the Examiner contends that the invention as defined in claims 7-16 lacks an inventive step in light of the disclosure of JPS56141088 U (D1) and the common general knowledge in the art and, separately, that the same claims also lack an inventive step in light of the disclosure of US2019/0208764 A1 (D5) and the common general knowledge in the art.

1. I note that throughout the examination reports D1 had been incorrectly referred to as JPS56141088 A which is an unrelated patent document. It is apparent from the Applicant's submissions that they were able to identify the correct utility model upon which the Examiner based their objections. The Examiner has indicated in their reports that the machine translation has been relied upon for the purpose of their assessment. For convenience I have instead relied upon a J-platpat translation of the examined version of the utility model - JPS596715 Y2[5]. While this document contains different claims, the description and drawings which were the basis of the Examiner's original objections (and in turn the Applicant's submissions) appear to be identical.

1. The Examiner objected to claim 7 as lacking an inventive step when prior art document D1 is viewed in the light of the common general knowledge. The Examiner considered that figures 1-3 of D1 disclosed all the features of claim 7, except for:

7.1.3 wherein the second length [of the collapsible net] is less than the first length; and

7.4 [wherein the flexible net structure comprises:] a secondary net

7.4.2 disposed on an interior side of the flexible net structure between the upper lateral edge and the lower lateral edge,

7.4.3 extending between the first lengthwise end and the second lengthwise end and extending downwardly toward the lower lateral edge

1. The Examiner considered that feature 7.1.3 was a mere design choice over the disclosure of D1 as follows:

"However, I consider that this difference is a mere design choice that would depend on the specific application of the flexible net structure. For example, when the net structure is configured in a circular arrangement, it would be obvious for a person skilled in the art to provide a second length that is less than the first length."

1. The Examiner further considered that features 7.4-7.4.3 were an obvious selection over the teachings of D1 as follows:

"I consider that improving strength/reliability merely relates to routine engineering practice. When faced with the problem of providing added strength to the flexible net structure disclosed in D1, a person skilled in the art would be directly led to either increase the size of the flexible lines, change the material of the flexible lines, or provide a secondary net. Selecting one option over the other does not require the exercise of inventive skill. Furthermore, having a secondary net adds the known benefit of providing redundancy, which is another routine engineering practice."

1. The Examiner further objected to claim 7 as lacking an inventive step when prior art document D5 is viewed in the light of the common general knowledge. The Examiner considered that figures 1-4 and paragraphs [0020], [0024]-[0026] of D5 discloses all the features of claim 7, except for:

7.1.3 wherein the second length [of the collapsible net] is less than the first length

1. The Examiner considered that feature 7.1.3 was a mere design choice over the disclosure of D5 as follows:

"However, I consider that this difference is a mere design choice that would depend on the specific application of the flexible net structure. For example, when the net structure is configured in a circular arrangement, it would be obvious for a person skilled in the art to provide a second length that is less than the first length."

1. The Examiner further objected to the appended claims as lacking an inventive step as follows:

"Furthermore, appended claims 8-16 add only features that are either disclosed in D1 and D5 or are common general knowledge in the art/mere design choices and which therefore cannot contribute to providing an inventive step."

1. On the 27 May 2025, the Applicant filed a document titled "Hearing Written Submissions". Throughout the submissions, the Applicant submits that the Examiner had erred on a number of points in the assessment of the statutory test for inventive step with respect to the disclosure of both D1 and D5. I will discuss the Applicant's submissions as they become relevant in the course of my consideration below.

1. If I am to apply the problem-solution approach of Wellcome Foundation it will first be necessary to identify the problem solved by the invention. Since the task is to determine whether the invention as claimed[6] involves an inventive step, the identified problem must be solved across the full width of the claim.

1. The Applicant has not provided a clear definition of the problem to be solved by the claimed net in their submissions, however at several points indicates key functional and technical benefits of the net (especially features 7.1.3, 7.4) when used in the specific trap systems of the specification. As I have observed above[7], these key functional and technical benefits do not seem to be realised by claimed net structure in isolation but rather only when implemented in an animal trap/methodology to which the specification is direction. Moreover, it is not clear whether the traps using the net structure as claimed would exhibit the alleged technical benefits posited by the Applicant across the full width of the claim(s). In particular, with regards to the secondary net the specification only identifies it performing its technical function when it has a lighter twine size and smaller openings in comparison to the (primary) net structure[8]. Where the problem is not solved by the claimed invention across its full width, it cannot be an appropriate problem definition for the purposes of applying the problem-solution approach.

1. With the above in mind, and with reference to the description at paragraph [0068], it appears the problem solved by the claimed invention relates to:

How to help ensure a net structure, when configured in or as a circumferentially-closed terrestrial animal trap which forms an enclosed space, prevents the escape of captured animals by preventing said animals from pushing the lower lateral edge radially outwards.

1. I observe that this problem definition does not directly incorporate any of the problems allegedly solved by the secondary net, such as those suggested in paragraph [0063]. This is simply due to the fact that the secondary net as defined in claim 7 does not solve all the problems said to be solved by the secondary net as described; that is, the secondary net as claimed is less than the secondary net as described. Nevertheless, I am of the view that, standing in the shoes of the PSA and considering the discussion of the secondary net in the application more generally, one can formulate the problem as above.

1. Notably, the examiner appeared to simply reduce the inventive step analysis to something of a comparison between the prior art and the D1 or D5. In this regard, the Examiner did not formulate a problem that informed the entire inventive step analysis, but rather developed a problem that was relevant to some of the missing features, whilst for others no problem was posed as such.

1. More specifically, with regards to the secondary net (feature 7.4) and its sub-features, the Examiner gave the explicit problem definition of:

"[P]roviding added strength [or redundancy] to the flexible net structure."

1. While this formulation of the problem is perhaps not the problem as I have formulated, it would seem to be a reasonable line of inquiry I will consider in addition to the problem definition derived with respect to the specification.

1. With regards to the shape of the net (feature 7.1.3), the Examiner did not refer to a problem as such but simply referred to feature 7.1.3 as a mere design choice depending on the specific application of the net structure, for example when configured in a circular arrangement. This may be understood as a simple assertion that feature 7.1.3 is obvious over the prior art concerned, as opposed to solving any problem, although this could be considered as a potential selection issue in the context of a problem to be solved. In any case, for completeness, I will consider this line of reasoning below.

1. Common General Knowledge (CGK) is the background knowledge and experience available to all those working in the relevant art as was described in Minnesota Mining at [115]:

"The notion of common general knowledge itself involves the use of that which is known or used by those in the relevant trade. It forms the background knowledge and experience which is available to all in the trade in considering the making of new products, or the making of improvements in old, and it must be treated as being used by an individual as a general body of knowledge."

1. There was no dispute regarding the CGK as asserted by the Examiner made in the Applicant's submissions. Nonetheless, I will consider the validity of the Examiner's assertion of what forms part of the CGK as appropriate in my assessment below.

1. D1 is addressed to a method of trapping reptiles, and in particular snakes, with a mode of operation substantially similar to that of the preferred trapping methodology of the current specification. In D1, a net wall is arranged to form a "J-shape", such that the target animal can traverse under the net when approaching from one direction (the exterior of the trap), but is unable to traverse the net when approaching from the other direction as the animal will be above the net. This operation is clear from Fig. 1:

1. In a preferred embodiment of D1, the netting is arranged to form an enclosed space, such as a square pen as per Fig. 3:

1. The Examiner referenced these figures in concluding that all the features of claim 7 were disclosed in D1, except features 7.1.3 (wherein the second length is less than the first length), and 7.4 (a secondary net and its manner of attachment). The Examiner did not provide a more granular assignment of the features considered disclosed by D1 other than to indicate items 2, 2a correspond to the collapsible net.

1. The Applicant in their submissions agreed with the Examiner that D1 fails to disclose features 7.1.3 and 7.4, and further submitted that D1 fails to disclose feature 7.2 (a flexible upper cord attached to the collapsible net at the upper lateral edge extending the first length of the net)[9]. I will hence focus on the three potential distinguishing features of the flexible cord (7.2), the net geometry (7.1.3), and the secondary net (7.4) in my assessment here.

1. The Applicant argued two points supporting their assertion that D1 does not disclose "a flexible cord", essentially:

1 - D1 instead discloses an "electrical wire (5)", and an electrical wire is distinct from "a flexible cord". Moreover, the electrical wire of D1 would not be suitable to contain wild pigs.

2 - D1 teaches that when applying the invention to animals which are unable to climb, that the electrical wire (5) can be excluded from the trap.

1. To the first point, I agree in principle that a "cord" requires a different structure than a "wire" as plainly construed in English. A cord, as I have construed[10] it, is strictly a multi-filament string or rope, whereas I think wire would seem to more typically evoke a metallic monofilament "thread". However, in the context in which it appears the conductive wire of D1 refers to what is functionally electrical fencing "wire", which is often implemented in the form of a braided cord. For these reasons, I do not think a skilled person in reading the disclosure of D1 would consider the "wire" as limited to a metallic monofilament. Further, as a relative term, I see no clear reason why the skilled person would not consider electrical fencing wire to be "flexible". With regards to the suggestion that the wire of D1 would not be suitable for the containment of wild pigs, I note that there is no functional limitation on the flexible cord, nor the flexible net structure as claimed, requiring that it is suitable for any particular application. For these reasons, I consider that the selection of a flexible cord from the broader "electrically conductive wires" as per D1 is a mere obvious selection available to the skilled person in implementing D1, however one wishes to frame the problem to be solved.

1. Regarding the Applicant's second argument, I acknowledge that D1 teaches the exclusion of the wire 5 when implementing the trap to capture non-climbing animals. However, this is solving a problem that is not relevant with respect to the claims - nothing in the present claims limits the net structure to the application of capturing of non-climbing animals, nor is there any reason to believe that the net structure as claimed solves difficulties peculiar to non-climbing animals. Consequently, there is no reason to believe that D1 would fail to deprive claim 7 of inventiveness due to not addressing problems concerning non-climbing animals.

1. All of this is to say nothing of whether it would be obvious to otherwise include a flexible cord at the periphery of a net structure. I do not think it would be unusual to include such a cord for the purposes of tensioning or otherwise shaping a net.

... wherein the second length is less than the first length...

1. The Applicant, in agreement with the Examiner, submits that D1 does not mention or suggest having a second length of the net being less than a first length.

1. However, while I agree that D1 fails to clearly and unmistakeably disclose a second length less than the first length, the closed arrangement disclosed in the embodiment of Fig. 3 would inevitably require that at least the "lower perimeter" of the combined net of 2, 2a must be less than the "upper perimeter". This is evident from both the operation of the trap in D1, as well as visible in Fig. 3. The mode of operation of D1 requires that there is a ground contact portion (2a) extending away from the net walls, and hence the skilled person in view of constructing the circumferentially-closed embodiment would understand that the inner perimeter of the combined net structure (analogous to the lower circumference of present application) must be less than the outer perimeter. As such the net must have, in some manner, an effective length at the lower lateral edge that is less than the length at the upper later edge. If this was not the case, then the Fig. 3 embodiment of D1 would not work, and there could not be a ground contact portion of the net 2a.

1. It may be however that this lower perimeter could be formed in D1 by merely folding or "bunching-up" of the net at the lower end. As I have previously outlined[11], embodiments where the second length is formed by an impermanent, non-fixed means are not fairly within the scope of the claim when construed purposively, but embodiments such as "cinching up" of the lower lateral edge do fall within the scope of the claim. Hence, the collapsible net of this embodiment is distinguished from the collapsible net of the claim by only the manner in which the second length is formed.

1. Turning to the problem derived from the specification and reformulated Cripps question:

Would the skilled person, in all circumstances, be directly led as a matter of course to try permanent fixed means to form the second length in adapting the teachings of D1 in the expectation that it might well solve the problem of preventing the escape of trapped animals via said animals pushing the lower lateral edge radially outwards, when configured in or as a circumferentially-closed terrestrial animal trap which forms an enclosed space?

1. To this, in my view, the skilled person in implementing the embodiment of Fig. 3 of D1 is directly led to forming a lower perimeter less than an upper perimeter (by at least the visual representation in Fig. 3), and would as a matter of course seek to implement "permanent" fixings of some form such that the "J-shaped" cross-section can be maintained because the alternative solutions would seem to be impractical. It seems to me that the PSA would be dissuaded from merely bunching up or folding of the net 2, 2a at the lower lateral edge as this would potentially lead to escape paths for captured reptiles. I further note that pegging-down or staking of the net at the lower end would also seem to be unfavourable as it would interfere with the traps intended operation. I therefore consider that this feature would be obvious to the skilled person in their implementation of D1.

1. The Applicant has submitted in rebutting the inventive step arguments of the Examiner that the net geometry feature solves a problem particular to the capture of the feral pigs which would not be experienced in the context of trapping snakes. The difference in target animals is acknowledged, but the claimed invention is not limited to the capture of wild pigs and hence nor should the problem solved for the purposes of assessing inventive step. Regardless, as I have explained D1 Fig. 3 already provides clear directions towards at least the lower perimeter being less than an upper perimeter. In this context, the problem faced by the PSA is merely how to implement the "J-shaped" geometry in a trap having corners to prevent the escape of the trapped animals. The fact that the Applicant has allegedly identified a new problem solved by this net structure in the context of wild pigs (the issue of the net being pushed beyond the supporting posts) does not on its own mean the claims are inventive if the article per se requires no inventive ingenuity[12].

1. I agree with the Examiner and the Applicant that D1 does not disclose the use of a secondary net attached to the flexible net. As a result, the claimed invention is distinguished over D1 by the inclusion of a secondary net.

1. To assess whether this difference amounts to an inventive step I will now turn to the legislative test in the form of the reformulated Cripps question:

Would the person skilled in the art of animal capture and net at the relevant date, in all circumstances, be directly be led as a matter of course to try adding a secondary net to D1 in the expectation that it would help ensure that the net structure, when configured in or as a circumferentially-closed terrestrial animal trap which forms an enclosed space, prevents the escape of captured animals by preventing said animals from pushing the lower lateral edge radially outwards?

1. The key question here is would the skilled person be led to using a secondary net, not merely could they add one. Given the simplicity of this feature, it is clear the skilled person could incorporate a second net of some description with little difficulty. So, what is the motivation (if any) for the skilled person to add a secondary net?

1. To this question, I see little motivation for the PSA to alter the net structure of D1 to incorporate a secondary net. There appears to be no indication that two-layer nets of any sort have been implemented in circumferentially-closed animal traps for any known benefit. Moreover, I do not think that the incorporation of a secondary net could be said to be a workshop improvement which the skilled person would have come to as a matter of routine. There does not appear to be any particular practical difficulties which I think would be apparent to the skilled person in such circumferentially-closed animal traps identified in D1 (or known in the CGK) which would motivate the inclusion of a secondary net. Indeed, it appears to me that the ground contact of the net in D1 would seem to solve the problem posed and thereby tend to obviate any further modification by the skilled addressee.

1. Turning to the Examiner's approach, as I have already outlined, the Examiner considered that the skilled person would consider modification of D1 to include this feature as a matter of routine in solving the known problem(s) of adding strength to the net structure and/or providing redundancy.

1. The Applicant in their submissions argued that the Examiner in their definition of the problem did not consider the particular way in which the secondary net is attached to the flexible net structure. The Applicant emphasised that the secondary net of the claims is attached on an interior side of the net structure, and is strictly located between the upper lateral edge and the lower lateral edge, and extends between the lengthwise ends. The Applicant alleges that this matter of attachment is associated with key functional benefits.

1. I do not think that the Applicant's submissions meaningfully invalidate the approach taken by the Examiner, as far as it goes. Firstly, the allocation of a side as the "interior" side is arbitrary given that claim 7 is directed to a net per se and is not limited in any way to a circumferentially-closed trap structure or net arrangement, nor is the claim limited to its application in the trapping of wild pigs. Secondly, I do not consider the mode of attachment is as limited as implied in the Applicant's submissions. So long as the secondary net extends between the lengthwise edges, and is not disposed (substantially) beyond the lateral edges, it will be within the scope of the claimed feature. In this, a reinforcing net or a net provided for redundancy (as suggested by the Examiner), which is the same size as the primary collapsible net (i.e. a two-ply net) would fall within the scope of the claims.

1. The Applicant has further asserted that there are functional and technical benefits associated with the secondary net and its particular manner of attachment. However, there does not seem to be any particular benefit identified in the description or the Applicant's submissions associated with the secondary net and its manner of attachment present as these exist in the claim. Paragraph [0063] is the only discussion of the secondary net in any detail. According to this paragraph, the benefit of the secondary net is that the entanglement of captured pigs is minimised, and that improved drapability of the net structure helps prevent the escape of the captured pigs. These benefits are only realised when the secondary net is of a "lighter twine size and [has] smaller openings", which is not claimed, and appears to have little to do with the way the net is attached (at least insofar as limited by the claims).

1. To the Examiner, the motivation to add a secondary net was that the skilled person in seeking a solution to the problem of strengthening and/or providing redundancy to the net structure, would look to established solutions in the common general knowledge.

1. However, there is no indication in D1, nor is it apparent from the CGK that there would be any issue of net strength in the solution of D1. Why then would the skilled person consider, in any circumstance, that the net structure of D1 requires further strengthening? Given that the net of D1 is preferably designed to capture snakes from which there is a desire to extract serums (venoms), and such snakes tend to be smaller than their non-venomous counterparts, it is doubtful whether insufficient net strength would ever be a concern. Even if the skilled person were to consider difficulties in facilitating the capture of larger terrestrial animals (which is not suggested in D1), to which the need for net strengthening might be a consideration, it is not clear why they would try adding a secondary net layer to D1, rather than turn to established techniques known in the art for the capture of such animals, such as stiff-wire traps. Finally, even if such an adaptation were to be considered, there is the further question of why the skilled person would choose to add a second net layer over alternative options of changing the net material, gauge, or weave to achieve such strengthening.

1. To this final point, it seems to me that when faced with a problem involving the insufficient strength of a net, the default approach of the PSA to provide additional strength would likely be material substitution, that is selecting a netting material of greater strength, or in alternative simply increasing the gauge of the operative net. In this manner, these solutions would appear to fully solve the proposed problem of providing strength to the animal trap net, so why would the skilled person be induced to choose the solution of a secondary net layer over other, perhaps simpler, solutions to the problem? In any case I do not think the provision of a secondary net layer could be said to be an obvious solution to the problem of insufficient strength in an animal trap net structure.

1. I additionally observe that the use of a multi-layer snake net in D5, insofar as it could be considered to form part of the CGK in the art of animal capture, relates to improving the ability of the net structure to entangle the target animals (snakes and other reptiles). Such a modification would not seem to solve any problem relevant to the solution of the claimed invention. In fact, such entanglement of the target animal in the net wall would seem to be antithetical to the operation of animal traps of the invention (and of D1) which aim to trap the target animals in an enclosed space.

1. Hence the claimed invention is not obvious over D1 when it is viewed in the light of the common general knowledge because D1 does not teach the incorporation of a secondary net layer, nor is there any motivation for the skilled person to add a secondary net layer compatible with the disclosure and operation of D1 in view of the problem to be solved, whether formulated as I have or as formulated by the examiner.

1. D5 outlines a multi-layer netting barrier or snare, designed to capture or deter reptiles or rodents from approaching a property from a certain direction. The barrier/snare is either free-standing or set up along a fence line, and the netting is sized such that when reptiles (especially snakes) attempt to cross the barrier they will become ensnared in the through holes of the netting material, and that rodents will be deterred from crossing the barrier. Such a barrier is exemplified in Fig. 2 as below, wherein layers 6, 8, 20, 22 represent mesh layers of progressively smaller through-holes 10, 12, 24, 26. The barrier in Fig. 2 is intended to stop animals crossing from left to right.

1. In order to capture snakes (and deter rodents) of varying sizes, different sized through holes of each layer is utilized. The preferred operation of D5 is outlined in paragraph [0032]:

"The netting is preferably translucent (preferably plastic) and has a grid pattern designed to trap snakes and lizards of varying sizes and deter rodents from entering the protected area. Current technology will not necessarily capture smaller snakes or deter rodents like disclosed snare barrier 2. The different sized through holes 10,12, 24, 26 of the first and second layers 6, 8 block and/or snare multiple sized rodents and reptiles. Where applicable, different sized through holes 10, 12, 24, 26 on third, and/or fourth (and/or fifth and/or sixth) layers 20, 22, for example, provide for effective snaring for a broad range of replies. A preferred embodiment of the snare barrier 2 has first, second, and third layers 6, 8, 20 attached to one another along the first seam 14, with the first layer 6 having largest through holes 10, the second layer 8 having medium through holes 12, and the third layer 20 having smallest through holes 24. The smallest snakes in a given environment pass through the first and second through holes 10, 12 and are snared by the netting 4 of the third through holes 24. Medium sized snakes in a given environment pass through the first through holes 10 and are snared by the netting 4 of the second through holes 12. The largest snakes in a given environment are snared by the netting 4 of the first through holes 10."

1. The Examiner referenced Fig. 1-4 and paragraphs [0020], [0024]-[0026] in concluding that all the features of claim 7 were disclosed by D5, except feature 7.1.3 (where the second length is less than the first length).

1. The Applicant in their submissions further asserted that D5 also fails to disclose a flexible upper cord (feature 7.2) and the particular manner of how the secondary net is attached to the flexible net structure (feature 7.4.2). The Applicant contends that the flexible upper cord as claimed is distinct from the 'flexible lines' of the collapsible net as recited in the claim, and moreover that D5 compensates for the absence of an upper flexible cord through the presence vertical attachments 34. The Applicant further submitted that in the disclosure of D5 the first layer extends beyond the second layer, and that as a result fails to disclose "wherein the secondary net, that is disposed on an interior side of the flexible net structure, is located between the upper lateral edge and the lower lateral edge". The Applicant's submissions on this second point are reproduced as follows:

"The Applicant further submits that D5 does not provide clear and unmistakeable directions for the secondary net to be disposed on an interior side of the flexible net structure between the upper lateral edge and the lower lateral edge. The layers of the structure of D5 are said to be of identical dimensions. ... the first layer 6 is disposed on an interior of the second layer 8. ... However, the upper lateral edge of the first layer 6 is shown [in D5 Fig. 1] to be extending slightly beyond the upper lateral edge of the second layer 8, as shown in the zoomed-in portion [of D5 Fig. 1] below:

Thus, D5 does not disclose that the alleged secondary net (first layer 6), that is disposed on an interior side of the flexible net structure, is located between the upper lateral edge and the lower lateral edge. Instead, D5 teaches that a portion of the alleged secondary net extends beyond the upper lateral edge. There is also no suggestion or hint in D5 that the first layer 6 should be located entirely between the upper lateral edge and the lower lateral edge."

1. I will hence focus on the three potential distinguishing features of the flexible cord (7.2), the manner in which the secondary net is attached to the net structure (7.4.2), and net geometry (7.1.3), in my assessment here.

1. As the claims do not provide any functional limitation to the cord feature beyond merely being flexible, nor any limitation in how the cord should be attached to the flexible net structure, I have construed this feature to therefore include the top-most "flexible line" of the net in D5 (i.e. the right-most line in D5 Fig. 3). The "long strands" of such netting material I think could be fairly described as flexible. For this reason, I do not consider the flexible cord (7.2) to be a distinguishing feature compared to D5. While the "flexible cord" may be associated with some particular function in the context of preferred embodiments of the invention, this function is not claimed. Nor do the claims include any sub-feature which distinguishes a "cord" from a "line" of the net structure as disclosed by D5.

1. The Applicant's suggestion that D5 incorporates a different feature (namely the attachment to vertical supports) to provide the same functionality is not relevant given D5 already has clear and unmistakeable directions to an upper flexible cord as I have construed it.

... located between the upper lateral edge and lower later edge...

1. The Applicant's submissions as reproduced above regarding the manner in which the secondary net is attached to the collapsible net are not persuasive for three reasons. Firstly, the definition of the "interior" side of the net as claimed is arbitrary since the claims do not require the arrangement of the net in any manner as to necessarily define an "interior". As a result, the "second layer 8" of D5 may be considered the secondary net, and "first layer 6" as the collapsible net. In this assignment, the Applicant's arguments are rendered moot, as the second layer 8 does not extend beyond the first layer 6.

1. Secondly and separately, D5 at paragraph [0063] discloses attaching the net layers by rolling up the netting "like a jellyroll", which would also render this distinction moot. In such an embodiment, the edges of both nets would terminate at substantially the same point, that of the "jellyroll".

1. Finally, I do not think that the PSA would understand the schematic emphasised by the Applicant to teach that one net layer must be longer than the other. Even the extract of D5 presented by the Applicant would seem to substantially disclose the lateral edges of the two layers meeting at the same point. In this way, I do not consider the zoomed-in figure sufficient to direct the PSA away from implementing an embodiment where the nets are of the same length, emphasising D5 paragraph [0017]: "[t]he first layer 6 and the second layer 8 preferably are of substantially equal widths 18 and lengths 16".

... wherein the second length is less than the first length...

1. I agree with the Examiner and the Applicant that D5 does not disclose a net construction wherein the second length is less than the first length. As a result, the claimed invention is distinguished over D5 by only this feature.

1. Turning now to the problem derived from the specification and reformulated Cripps question:

Would the skilled person, in all circumstances, be directly led as a matter of course to try a net structure wherein the second length is less than the first length in adapting the teachings of D5 in the expectation that it might well solve the problem of when configured in a circumferentially-closed terrestrial animal trap preventing the escape of trapped animals via said animals pushing the lower lateral edge radially outwards?

1. In this regard I observe that certain embodiments of D5 could be said to relate to circumferentially closed traps, such as wherein the net is used to protect a property with a fence which encloses an area (from all sides), or the embodiments referred to in the paragraph [0026] and in the "Third Scenario" (paragraphs [0056]-[0066]) of D5 wherein the net is implemented as a stand-alone trap/barrier. However, despite forming "circumferentially-closed net animal traps", the operation of these traps is to form a barrier to prevent ingress of animals to the area enclosed by the trap entangling animals. In view of this, there is no motivation to modify D5 to deal with issues of animals pushing the lower lateral edge radially outwards, as these issues simply do not arise in view of the principle of operation of D5.

1. Hence, while certain embodiments of the invention of D5 are reminiscent of the present invention, they are in the context of animal traps very different to that of the present invention, to which the problem solved by the present invention would not occur.

1. For these reasons, I do not consider the Examiner's assertion that the distinguishing feature is a mere design choice is sustainable.

1. For at least the above reasons, I do not consider that the claimed invention is obvious over prior art document D5 when viewed in the light of the common general knowledge.

1. This decision is directed to the issues outstanding from the examination process. However, where new issues are identified the application can be referred back to examination for consideration prior to either acceptance or the issuance of a further examination report. Considering new issues within the context of examination ensures that the Applicant has a reasonable opportunity to engage with these issues.

1. In considering the present patent application I have come to the view that claims 1-16 may be considered to lack support as required under subsection 40(3) of the Act.

1. According to subsection 40(3) as amended by the RTB Act the claims must be supported by matter disclosed in the specification. As discussed in the Explanatory Memorandum to the RTB Act at Schedule 1, item 9, the objective of the amendment is to align the requirements with those of overseas jurisdictions like the United Kingdom and Europe. TCT Group v Polaris [2022] FCA 1493 expressly endorsed European patent decision Fuel Oils/EXXON (T409/91) [1994] OJ EPO 653 (Exxon). Exxon provided guidance regarding the requirements for "support" at [659]:

"[T]he claims must be supported by the description, in other words it is the description of the invention in the claims that needs support. In the Board's judgment, this requirement reflects the general legal principle that the extent of the patent monopoly, as defined by the claims, should correspond to the technical contribution to the art in order for it to be supported, or justified (see T 133/85, OJ EPO 1988, 441). This means that the definitions in the claims should essentially correspond to the scope of the invention as disclosed in the description. In other words, as was stated in decision T 26/81 (OJ EPO 1982, 211, point 4 of the reasons), the claims should not extend to subject-matter which, after reading the description, would still not be at the disposal of the person skilled in the art.

Consequently, a technical feature which is described and highlighted in the description as being an essential feature of the invention, must also be a part of the independent claim or claims defining this invention."

1. In summary, the requirement for support necessitates that "the description to be the base which can fairly entitle the patentee to a monopoly of the width claimed"[13] and that the claims must not extend to embodiments beyond what the specification disclosures. Moreover, the claims should not omit technical features that are described and highlighted in the description as being essential to the working of the invention.

1. The description of the present application appears to be directed exclusively to an improved animal trap system and methodology. However, the claims are drawn more broadly to an animal trap net per se (or merely a net structure of general application as per claim 7) and hence are not limited to the traps which form the focus of the specification. As a result, it appears that the claims extend to subject matter broader than justified by the technical contribution to the art. Notably, the claims exclude features which appear to be essential to the functioning of the trap system. The claims do not include any reference to the support posts, tensioning lines, or attachment means necessary to configure the net structure as an animal trap. The claims also do not define any functional relationship between the net structure and these features so as to result in the trap per se.

1. I note that there does not appear to be any technical contribution in (animal trap) nets of general applicability outlined in the specification. All the benefits associated with the features of the claimed net as identified in the description appear to only be realised in the context of the specific trapping system/method outlined in the specification[14]. Hence (save for some consistory clauses) it does not appear that the description describes an invention associated with the isolated net structure at all. Rather, the description appears to exclusively describe an invention in the incorporation of the net structure in a specific animal trap system and/or methodology. I find the circumstances reminiscent of those considered in Atlantis Corporation Pty Ltd v Schindler [1997] FCA 1105 under the old requirement of 'fair basis'. Noting the comments of Rofe J in Perfect Day, Inc. v Commissioner of Patents [2025] FCA 270 at [118], I think the Examiner should give consideration as to whether an analogous support issue arises in the present claims. Further, while perhaps somewhat different than the "inconsistency" discussed in Calix Limited v Grenof Pty Ltd [2023] FCA 378; 171 IPR 582 ("Calix"), it does appear that the differences between the invention described and the invention claimed in the present circumstances amounts to a material difference by the omission of essential technical features, as discussed in Calix at [128].

1. Therefore, it appears that claims 1-16 lack support as required under subsection 40(3). However, as the Applicant has not had an opportunity to respond to this objection, I do not make any decision regarding this matter.

1. For similar reasoning it appears that the invention of claims 1-16 may be considered to lack utility as required under subsection 18(1)(c) for failing to achieve the promised benefit(s) identified in the description.

1. The High Court in Advanced Building v Ramset (1998) HCA 19 at [24] approved the approach of Lane Fox v Kensington and Knightsbridge Electric Lighting Co. (1892) 9 RPC 413 in which for a claimed invention to be considered useful it must achieve the use promised by the Patentee (or Applicant) in the specification. Additionally I note that it is not sufficient that some subset of the claimed invention be useful, but rather everything falling within the scope of the claim must be useful as established in Welch Perrin & Co. Pty Ltd v Worrel (1961) HCA 91 at [20] citing Norton and Gregory Limited v Jacobs (1937) 54 RPC 271 at [276], and Martin Engineering Co. and Another v Trison Holdings Pty Ltd and Others (1989) FCA 64 at [23]- [24].

1. As I have discussed above with respect to subsection 40(3), the claims appear to exclude any feature which would limit the claimed net structures to those implemented into an animal trap. As I understand it, the promised benefit relates to an improved animal trap per se, of the type depicted in Fig. 1. While the claimed nets may be said to have some use, absent their incorporation into the animal trap it is not clear how they would be able to achieve the promised benefit outlined in the specification. It follows that claims directed towards the net alone do not appear to achieve the benefits promised by the Applicant in the specification. Just as for support, I stress I am not making any decision concerning utility, and the matter is one for consideration in the context of further examination.

1. I note that claim 12 which appends to claim 7 refers to "the second flexible lines", but there is no defined antecedent within claim 7 for this feature. Both claims 8 and 10, separately define an antecedent for this term. While it is apparent that some form of drafting error has occurred here, the intended form of the claim is not apparent. It could be that claim 12 should be appended to claim 8 or claim 10 instead of claim 7. Alternatively, it could be that claim 12 should additionally have included "wherein the secondary net is formed from a plurality of spaced apart second flexible lines". The Examiner and the Applicant may wish to further consider this issue in examination.

1. I have noted some construction issues above concerning how the secondary net is attached to the flexible net structure, in that the secondary net is understood as being attached to the collapsible net (rather than the "flexible net structure") despite the literal language of the claim. The Applicant may wish to consider clarifying how the secondary net is attached by amendment.

1. I have found that the Examiner's objections are not sustainable. I am satisfied based on the evidence before me that the invention as presently claimed involves an inventive step over D1 and D5 cited in the examination report.

1. Normally I would accept the patent request and complete specification relating to the application. In this instance I refer the application back to examination to consider potential support and utility objections in view of the reasoning I have provided above. Following Reg 13.4(1)(g) and (3) I fix the period to gain acceptance to twelve (12) months from the date of this decision so that an examination report can issue and the applicant has an opportunity to respond.

a net formed from a plurality of spaced apart flexible lines that define a plurality of openings within the net, the net having a height that extends between an upper lateral edge and a lower lateral edge, a first length that extends between a first lengthwise end and a second lengthwise end at the upper lateral edge, and a second length that extends between the first lengthwise end and the second lengthwise end at the lower lateral edge, wherein the second length is less than the first length;

wherein the net includes a first net region contiguous with the upper lateral edge and extending from the first lengthwise end to the second lengthwise end, and a second net region contiguous with lower lateral edge and extending from the first lengthwise end to the second lengthwise end, the first net region extending toward and adjoining the second net region;

wherein the plurality of openings within the net includes a plurality of first openings in the first net region and a plurality of second openings in the second net region;

a flexible upper cord attached to the net at the upper lateral edge extending the first length of the net;

a flexible bottom cord attached to the net at the lower lateral edge extending the second length of the net, wherein the bottom cord has a weight per unit length and the flexible lines of the net have a weight per unit length, and the weight per unit length of the bottom cord is greater than the weight per unit length of the flexible lines; and

a secondary net attached to the net and disposed on an interior side of the net between the upper lateral edge and the lower lateral edge, extending between the first lengthwise end and the second lengthwise end and extending downwardly toward the lower lateral edge;

wherein the net is configurable in a closed configuration where the first lengthwise end and the second lengthwise end are connected to one another, and the flexible bottom cord attached to the net at the lower lateral edge defines a trap opening.

2. The animal trap net structure of claim 1, wherein the bottom cord is a weighted cord having a lead core.

3. The animal trap net structure of claim 2, further comprising a mid-cord attached to the net, extending lengthwise between the first lengthwise end and a second lengthwise end, and disposed between the upper cord and the bottom cord.

4. The animal net structure of claim 3, further comprising a plurality of rib cords, each extending heightwise between the upper lateral edge and the lower lateral edge, the rib cords spaced apart from one another.

5. The animal trap net structure of claim 1, wherein the plurality of openings within the net each define a first area; and

wherein the secondary net is formed from a plurality of spaced apart second flexible lines that define a plurality of second openings within the secondary net, and the plurality of second openings each define a second area, and the first area is different from the second area.

6. The animal trap of claim 1, wherein the flexible lines are configured sufficiently durable to prevent failure of the net resulting from animal chewing.

a collapsible net formed from a plurality of spaced apart flexible lines that define a plurality of openings within the net, the net having a width that extends between an upper lateral edge and a lower lateral edge, a first length that extends between a first lengthwise end and a second lengthwise end at the upper lateral edge, and a second length that extends between the first lengthwise end and the second lengthwise end at the lower lateral edge, wherein the second length is less than the first length; and

a flexible upper cord attached to the collapsible net at the upper lateral edge extending the first length of the net;

wherein the collapsible net is configurable in a closed configuration where the first lengthwise end and the second lengthwise end are disposed proximate each other, and the lower lateral edge defines a trap opening; and

a secondary net attached to the flexible net structure and disposed on an interior side of the flexible net structure between the upper lateral edge and the lower lateral edge, extending between the first lengthwise end and the second lengthwise end and extending downwardly toward the lower lateral edge.

8. The flexible net structure of claim 7, wherein the plurality of openings within the net each define a first area; and wherein the secondary net is formed from a plurality of spaced apart second flexible lines that define a plurality of second openings within the secondary net, and the plurality of second openings each define a second area, and the first area is different from the second area.

9. The flexible net structure of claim 8, wherein the plurality of flexible lines of the net have a first twine size, and the plurality of second flexible lines of the secondary net have a second twine size, and the second twine size is different from the first twine size.

10. The flexible net structure of claim 7, wherein the plurality of flexible lines of the net have a first twine size; and

wherein the secondary net is formed from a plurality of spaced apart second flexible lines, and the second flexible lines of the secondary net have a second twine size, and the second twine size is different from the first twine size.

11. The flexible net structure of claim 7, wherein the flexible lines of the net are configured sufficiently durable to prevent failure of the net resulting from animal chewing.

12. The flexible net structure of claim 7, wherein the second flexible lines are configured sufficiently durable to prevent failure of the net resulting from animal chewing.

13. The flexible net structure of claim 7, further comprising a flexible bottom cord attached to the net at the lower lateral edge extending the second length of the net. 14. The flexible net structure of claim 7, wherein portions of the net contiguous with the lower lateral edge are cinched to form the second length extending between the first lengthwise end and the second lengthwise end at the lower lateral edge having the second length that is less than the first length.

15. The flexible net structure of claim 7, wherein the flexible lines have a first diameter and the flexible upper cord has a second diameter, and the second diameter is greater than the first diameter.

16. The flexible net structure of claim 7, wherein the flexible lines and the flexible upper cord comprise the same material

[4] Applicant's Written Submissions at page 2 para 2

[5] Retrievable from https://www.j-platpat.inpit.go.jp/

[6] s 18(1)(b)(ii) of the Patents Act 1990

[7] See above at paragraphs [13]-[14].

[8] See above at paragraph [16] discussing the specification at paragraph [0063].

[9] At page 2 paragraph 3 of the Applicant's Written Submissions.

[11] See above at [29]-[31].

[12] Mullard Radio Valve Co. Ltd v British Belmont Radio Ltd and Juviler (1939) 56 RPC 1 at page 15.

[13] Schering Biotech Corp.'s Application [1993] RPC 249

[14] Description at paragraphs [0063] and [0068].