Joshua Leppard v Rigging Concepts Limited [2026] APO 3

Costs are hereby awarded against the Applicant, Rigging Concepts Limited, according to Schedule 8 of the Patent Regulations 1991.

1. Patent application 2020287266 (the "application") was filed on 5 June 2020 and entered national phase from PCT/IB2020/055290 on 24 September 2021. The application has an earliest priority date of 6 June 2019. At the time of entering national phase the applicant was Rigging Concepts Limited (the "Applicant"). The sole inventor is given as Nicholas Jerzy Nicholson.
2. A request under s36 of the Patents Act 1990 (the "Act") was filed by Joshua Leppard (the "Requestor") on 10 October 2024. The Applicant advised the Commissioner of its intention to defend its entitlement to the Application on 4 November 2024.
3. Directions for the filing of evidence were made on 14 November 2024. Evidence was then filed as follows:
   • evidence in support ("EIS"), this being completed on 14 January 2025. This consisted of:
     • a first declaration by Mr Joshua Richard Leppard ("Leppard1"), dated 11 January 2025, with supporting annexures JRL-1 to JRL-3; and
     • a first declaration by Mr Matthew Pauli ("Pauli1"), dated 13 January 2025, with supporting annexures MP-1 and MP-2; and
   • evidence in answer ("EIA"), this being completed on 14 March 2025. This consisted of:
     • a declaration by Mr Nicholas Jerzy Thomas Nicholson ("Nicholson") dated 13 March 2025, with supporting annexures NJN-1 to NJN-20; and
     • a declaration by Mr Robert Eades ("Eades") dated 12 March 2025; and
   • evidence in reply ("EIR"), this being completed on 14 April 2025. This consisted of:
     • a second declaration by Mr Joshua Richard Leppard ("Leppard2") dated 14 April 2025, with supporting annexures JRL-4 to JRL-10; and
     • a second declaration by Mr Matthew Pauli ("Pauli2") dated 14 April 2025, with supporting annexure MP-3.
4. I note that the Requestor also sought, on 1 April 2025, a notice to produce under s210 of the Act with regard to certain emails said to be in possession of the Applicant. The Requestor also sought an extension of time to file EIR on the 14 April 2025. Ultimately, the extension of time to file EIR was refused on 20 May 2025. The notice to produce was unnecessary as the Applicant filed the material subject to the notice as Attachment A on 8 May 2025, with this being introduced into the present matter by directions made by a Delegate of the Commissioner on 26 June 2025. The Delegate's directions provided for both parties to give evidence or make submissions about Attachment A. The Applicant filed very short submissions on 24 July 2025. No submissions or evidence concerning Attachment A were provided by the Requestor.
5. Both parties filed written summaries of submissions prior to the hearing. The Requestor filed their written submissions (the "RWS") on 23 October 2025 The Applicant filed its written submissions (the "AWS") on 30 October 2025. The Applicant also filed, on 5 November 2025, copies of two decisions of the Federal Court of Australia that it intended to rely upon. I will have reference to all this material where appropriate throughout this decision.

1. The invention described by the application relates to a coupling device, "...particularly but not exclusively it relates to a coupling device for lifting, towing, slinging, securing loads, pulling such as during diving, vehicle recovery operations and/or other purposes."[1] The "BACKGROUND OF THE INVENTION"[2] discusses some issues with known shackles and reads as follows:

"Coupling devices such as shackles are typically made from steel or other suitable metal. They are commonly used for lifting in the marine, construction and other similar industries for lifting, towing, slinging, securing loads, pulling and vehicle recovery operations and other purposes. > > However, such coupling devices can be very heavy and bulky especially if they are designed to be used in heavy load situations where they need to be strong. Consequently, such coupling devices are generally difficult > > or impossible to be manually lifted and deployed by a single person. Some coupling devices (e.g. steel shackles) for example may weigh over 50 kg. Multiple persons and additional equipment for lifting and deployment of heavy couplings safely may be required. This may not be possible or commercially desirable or for personal safety reasons. Further, the heavy weight and bulkiness of steel shackles means that they are not easy to store. > > Compromising on the strength of a coupling device to reduce weight and provide for less bulky coupling is not a desirable solution because if the coupling device fails, the consequences can be catastrophic. > > Metal shackles have a high capacity for stored energy including in a form of elastic yielding of the material of the shackle when under high loading when approaching its break strength. When such a shackle breaks under load, that stored energy is often dissipated in a catastrophic manner. Parts of a metal shackle breaking under load can become projectiles that can cause significant damage and even personal injury. The parts that a breaking shackle is coupled to can also be a danger to property and persons nearby."

2. This is then followed by the "OBJECT OF THE INVENTION"[3] which is stated as follows:

"It is an object of the present invention to provide a coupling device that overcomes or at least partially ameliorates some of the abovementioned disadvantages or which at least provides the public with a useful choice."

3. A "BRIEF DESCRIPTION OF THE INVENTION"[4] is then provided. Much of this comprises consistory statements that essentially mirror the claims as they presently stand. However, there is also mention of certain size and rating requirements not presently reflected in the claims. For example the total weight of the coupling device being less than 20, 15 or 10kg or approximately 8kg[5], the total diameter of the flexible elongate member being less than 65cm, greater than 50cm, between 52 to 62cm or 10 to 15cm[6] and the load limit of the coupling device being at least 20000, 180000, 280000, 500000 or 600000kg[7] and a defined maximum stretch under certain loads[8][9]. There are also a series of consistory statements that outline embodiments of the coupling device as a "soft shackle" or "soft recovery shackle"[10] and an "omnibus" consistory clause[11]. The "brief description" ends with what may be understood as "boilerplate" concerning various terms within the specification and the common general knowledge ("CGK")[12].
4. After a "BRIEF DESCRIPTION OF THE DRAWINGS"[13], the "DETAILED DESCRIPTION OF THE PREFERRED EMBODIMENTS"[14], which discusses the preferred embodiments by reference to the drawings, comprises the remainder of the application. The nature of the invention as described is best understood by reference to the drawings.
5. In that regard figures 1 to 8 illustrate a first embodiment of the invention as described. Figures 1, 3 and 5, reproduced below, show a coupling device 100 comprising a pin 102 and flexible elongate member indicated as item 104 in the specification, but unlabelled on figures 1 and 3 to 5- what can be seen on these figures is the protective sheath 110 which at least partially covers the flexible elongate member 104. Figure 3 shows that the flexible elongate member comprises eyes 106A, 106B formed at respective ends 160A, 160B thereof. The eyes 106A, 106B are used to releasably secure the flexible elongate member to pin 102, so as to form a closed loop, as in figure 1, or an open loop (not shown). The coupling device 100 can form a closed condition by hooking bight 161 (labelled as 151 on figures 1 and 3) over the pin as may be seen on figure 5.

1. Figure 8, reproduced below, exemplifies the coupling device 100 in use. Utilising the closed condition of figure 5, the coupling device 100 can be used to couple apparatus 150 via coupling feature 151 to a different coupling feature 152.

1. Figures 6 and 7, reproduced below, illustrate a different pin 102A to pin 102. Pin 102A comprises bracket 115 integrally formed with or attached to the same. Bracket 115 may be arranged to secure the relevant part of the flexible elongate member 104 to pin 102A (presumably the respective eyes 106A, 106B).

1. Figures 2A and 2B, reproduced below, show preferable examples of the composition of flexible elongate member 104. Specifically, this may comprise a rope 108 comprised of multi rope assembly 170, this itself comprising two or more rope sections, with two of these rope sections indicated as sections 108A and 108B on figures 2A and 2B. Figure 2B shows the multi rope assembly 170 comprising multiple braids which may be interwoven and/or spliced with themselves and/or other braids. The rope sections 108A, 108B are preferably not all the same length.

1. The application outlines a number of further embodiments or options concerning the coupling device 100. These include:
   • the pin 102 being made of metallic material, such as steel or aluminium or a suitable non-metallic material such as carbon composite[15];
   • the rope 108 being made of ultra high molecular weight polyethylene ("UHMWPE") material, such as Dyneema® or Spectra®[16];
   • the rope 108 or cover 110 being made of an aramid, such as Technora®[17];
   • the cover 110 being made of relective material, this said to be "very useful in mines where the visibility is very minimal"[18];
   • the maximum stretch at failure being less than 5 to 10 percent[19]; and
   • a maximum stretch of about 5 percent when coupled to a load greater than 100000kg or a stretch of 19mm when coupled to a load of 175000kg[20].
2. With respect to using UHMWPE, the application observes[21]:

"Use of UHMWPE rope is advantageous because UHMWPE can make the coupling device stronger than steel by weight and also much stronger than Polyester rope of equal weight. Hence, the coupling device 100 can be made strong enough to be suitable for lifting, towing or connecting heavy machineries or equipment yet be light enough to be more easily handled than steel coupling devices or similar strength. > > Due to such construction material, the coupling device 100 can be much smaller in volume and weight making the coupling device 100 suitable for easy storage and rapid deployment such as in emergency cases even by an individual person. The total weight of the coupling device may be less than 40 kg. In one embodiment, the total weight of the coupling device may be less than 20 kg, or less than 15 kg, or less than 10 kg. Preferably, the total weight of the coupling device 100 is 8 kg or approximately 8 kg, more preferably 8.2 kg. In one embodiment, the total weight of the coupling device 100 is more than 7 kg.

• A coupling for a break strength of 100,000 kg can weigh around 2.1KG
• A coupling for a break strength of 120,00[22] kg can weigh around 2.3KG
• A coupling for a break strength of 140,000 kg can weigh around 2.7KG
• A coupling for a break strength of 160,000 kg can weigh around 2.9KG
• A coupling for a break strength of 180,000 kg can weigh around 3.1KG
• A coupling for a break strength of 200,000 kg can weigh around 3.3KG
• A coupling for a break strength of 510,000 kg can weigh between 8.5kG and 19KG.

The weight of the coupling device 100 is much lighter as compared to total weight of a steel shackle (which typically weigh higher than 60 kg) normally used in heavy industry for similar purposes. The coupling device may be 3 times lighter."

"The pin and flexible elongate member can be designed in the preferred form to ensure that at failure of the coupling device, it is the flexible elongate member that fails. Not the pin. It is preferably a tensile failure of the flexible elongate member that causes failure of the coupling device."[23]

2. Figures 9 and 10, reproduced below, illustrate a second embodiment of a coupling device 200, which is functionally similar to coupling device 100. Coupling device 200 comprises a pin 222, having two annular members 220A, 220B spaced apart on pin member 259. Annular members 220A, 220B comprise respective grooved rims 223A, 223B which receive flexible elongate member 204, which is at least partially protected by cover 210. The annular members 220A, 220B may have apertures to receive pin member 259 so as to facilitate opening of the coupling device 200, noting that the pin member 259 may be arranged to be integral with or attached to annular members 220A, 220B. In that regard, figure 9 shows the pin 222 having a head portion 225 formed as a nut that may be tightened to/removed from the pin member 259.

"From Figure 9, it can be appreciated that in one embodiment, the coupling device 200 of the present invention may be in the form of a shackle comprising the flexible elongate member and a pin 222 acting as a shackle pin. The shackle may be considered a soft shackle. > > The coupling device 200 may be used in a similar way as how conventional all- metal shackles are used. Figure 10 shows as example of a coupling device 200 being used to couple with an apparatus 250. > > The construction details of the flexible elongate member 204 may be same as that of the flexible elongate member 104 describe above or of the flexible elongate member described below. The weight and performance of the coupling device 200 may also be same or similar as described above for coupling device 100."[24]

2. Figures 12 to 17 show a third embodiment of coupling device 600. Figures 12, 13 and 15 to 17, reproduced below, illustrate the coupling device 600 having a pin 622 and flexible elongate member 604. The application explains that:

"The flexible elongate member 604 comprises of parallel rope sections that are preferably wound from one length of rope. In an alternative form there may be a plurality of lengths of rope that may for example be end-joined (eg spliced) to create a single length. If end-joined the lengths of rope may be of the same kind and size. If end joined the lengths of rope may not be all of the same kind and/or diameter. The lengths of rope to operate at the high stress regions of the coupling may for example be of a larger diameter. This can provide for weight saving to the coupling by allowing lighter rope to be used at regions of lower stress. > > The distal ends of the length of rope may be spliced together to create an endless length of rope in a wound configuration that will herein after be described. The endless length of rope may be configured into multiple windings. The parallel rope sections so defined may comprise of two sections 901 and 902 that extend between the bight 900 of the coupling device and the pin 622 as seen in figure 12. At the bight 900 the sections of rope of the flexible elongate member are positioned at at [sic] least two different radii."[25]

3. As can be seen from figures 12 and 13, coupling device 600 comprises loop 671, formed of an endless length of wound rope, can form a closed loop 672 in cooperation with pin 622. Specifically, pin 622 comprises pin member 659 and annular members 620A, 620B which engage eyes/bights 676A, 676B of loop 671, with the annular members 620A, 620B engaging pin member 659 in a releasable manner, for example using threaded fasteners 673A, 673B and threads 674 of pin member 659. Options include having one or the other of the annular members 620A, 620B permanently engaged to the pin 622, while the other is releasable or having the coupling device permanently closed. Additional rope 696 near the eyes/bights 676A, 676B helps ensure these remain tightly located in the annular members 620A, 620B. Sheaths 695A, 695B are provided over the flexible elongate member 604, and may be made of Technora.

1. Figures 18 to 29 detail aspects of manufacturing of the coupling device 600. Figures 18 to 21 are reproduced below. These illustrate a rope 608 of length L, preferably a braided rope as per figure 19 made of UHMPE, which is wound around winding posts 678A, 678B of table 679 to form an endless length of rope. Winding posts 678A, 678B are movable with respect to each other so as to create tension in rope 608 during the winding process.
2. The process of winding the endless length of rope is described as follows:

"To create the endless length of wound rope, the mid-point 'MP' is desirably found and this is placed midway between a first winding post 678A and second winding post 678B. Placing the mid-point MP of the rope midway between the winding posts 678A and 678B the length of rope is then able to be wound around the winding posts as seen in Figure 10 [sic figure 20] to create a first section 680A of rope of a first winding of the rope. The second section of the first winding 680B continues around each winding post and the rope is so mound [sic] into multiple windings."[26]

1. Figures 22 to 24, reproduced below, illustrate further aspects of the process of winding rope 608. This is discussed as follows:

"When the desired and predetermined number of windings of the rope are created the distal ends 682A and 682B of the length of rope 608 are able to be end spliced. The splicing is seen in Figure 22 where the spliced section 683 is of the rope inwardly of the end 682A and 682B, respectively. Such splicing creates the endless length of rope with multiple windings defining a plurality of parallel sections of rope. In the example shown there [sic] 8 windings of the rope. Once the windings are established around the winding posts, preferably in a loose manner, the windings are able to be configured so that at each winding posts multiple layers of windings are established. In the example shown, two layers of windings are established, namely a first layer 685A and a second layer 685B. This results in different lengths of sections of rope between the winding posts. At this stage the windings may be configured, still in a relatively loose fashion, in a layered manner."[27]

1. Flanges 691A, 691B of the winding posts 678A, 678B help maintain the layered configuration of the rope windings when tension is applied to the rope windings by moving the winding posts 678A, 678B away from each other. The application observes that:

"The application of such tension causes the rope strands and the braids to become more parallel to each other. The strands move towards a higher lay angle and this helps increase the Youngs Modulus of the rope for subsequent use. The application of force to create tension in the sections of rope also helps consolidate the assembly. It may be desirable to also apply dedicated tension, as step prior to tensioning all the sections of rope, to the spliced section so that this section is firstly consolidated."[28]

2. Figures 25 to 27, reproduced below, illustrate further aspects of the of rope winding process. This comprises the use of sheaths or covers as follows:

"In a preferred form during the creation of the windings of the length of rope, covers or sheaths are used for covering parts of the sections of rope. Sheaths 689A and 689B may be located over the sections of rope at or about the midpoint between the winding posts 678A and 678B. In the end form of the coupler these sheathes preferably locate at the bight 900. In addition, sheaths 690A and 690B may be used about sections of the rope turning about the winding posts 678A and 678B. In the end form of the coupler, these sheaths are located at the eyes of the flexible elongate member."[29]

3. Figures 25 to 27, reproduced below, also illustrate a preferred manner of sheathing whereby rope sections of rope 608 are sheathed in pairs using sheaths 690A, 690B around rope sections about the winding posts 678A, 678B. Sheaths 689A, 689B are similarly provided about pairs of rope sections intermediate winding posts 678A, 678B.

1. Figure 29, reproduced below, illustrates further steps on the rope sections are arranged as per figures 25 to 27, and preferably with tension applied. This is described as follows:

"...the sections 693A and 693B of the (eg eight) sections of rope may be then be bound together using an adhesive tape such as insulation tape, leaving the sections at the ends proximate to the winding posts un-taped. Such tape 694 brings the section 693A and 693B together yet leaving a first eye 676A and 676B at the end of the flexible elongate member as seen in Figure 29."[30]

1. Further sheaths 695A, 695B and additional rope 696 may be added to the flexible elongate member 604 as noted earlier.
2. Some further aspects of the invention are discussed towards the end of the application. For example, figure 11, reproduced below, discusses the lengths and radii of the lengths or sections of rope and diameter of the loop:

"The present invention may also reside in a coupling device that is able to loop through or over an anchor point of machinery to couple to the machinery and apply a force to the machinery, the loop of the coupling device comprising a plurality of nonwoven, inter-woven or spliced lengths of rope, each of a different length through the loop. The coupling device may be in a form of a shackle (soft shackle or soft recovery shackle). Figure 11 shows loop member 104, 204 comprising plurality of ropes of different lengths L1, L2, L3 and different radius r1, r2 and r3. In one embodiment, the loop member may have a total diameter greater than 50 cm. In another embodiment, the loop member 104, 204 may have a total diameter between 52cm -62cm. In yet another embodiment, the loop member 104, 204 may have a total diameter of less than 65 cm. In one embodiment, the each of the lengths of rope may have a total diameter between 10 to 15 cm, more preferably between 13cm to 15 cm."[31]

1. Other aspects/possibilities discussed towards the end of the application are as follows:
   • The use of lubricant to reduce friction in the coupling device when under extreme loads;[32]
   • The coupling device being able to be used for connection to objects that have sharp surfaces, "...such as at tow points of the font [sic] and rear of most rear dump trucks"[33];
     • The coupling device having high heat resistance, making "...it great for use in coal mines".[34];
     • The total length of rope used within the flexible elongate member being 50m, greater than 40m or 43 to 48m[35]; and
     • The closed loop measurement of the coupling device 100, 200 being less than 1000mm, less than 750mm or more than 500mm[36].
2. Some of the benefits of the invention as described are also discussed towards the end of the specification:

"The present invention allows for a flexible elongate member of multiple sections of rope to be provided that is about 20-25% smaller in diameter to an equivalent break strength of a single section of rope of the same material. This means the connector can be of lighter for more ease of handling. The construction of the flexible elongate member as herein described is also of reduced creep under load when compared to the use of a single section of rope of the same material such as a 12-strand rope. The invention can achieve a Working Safe Load of over 5:1. A coupling for MBS510,000kg may exhibit only 4% elongation at MBS."[37]

3. To assist in further discussion below, I note that the embodiment outlined in figures 1 to 8 is a type of soft coupling known as a "dogbone", whilst the embodiments shown in figures 9 and 12 to 14 are known as a "soft shackle" or "soft D-shackle"[38]. I will refer to "dogbones" and "soft D-shackles" to denote the respective forms of soft coupling devices. Confusingly, it also seems that such "soft" coupling devices were also known collectively as "soft shackles"[39]. To avoid confusion, I will simply refer to "soft coupling devices" when collectively referring to "dogbones" and "soft D-shackles"[40].

1. The application comprises 36 claims of which claims 1, 17, 32 and 34 to 36 are independent. The claims are reproduced below.
   1. A coupling device comprising:

a flexible elongate member in a loop form or part loop form completing the loop with the pin, secured to the pin to be able to form at least one smaller loop form using the pin, the at least one smaller loop form with the pin being a coupling form of the coupling device;

wherein the flexible elongate member (a) comprises of at least one length of rope formed to define parallel multiple rope sections of the loop form or part loop form, and (b) is at least in part protectively ensheathed using a cover to protect at least part of the rope sections.

1. A coupling device as claimed in claim 1 wherein the at least one length of rope consists of one length of rope formed to define parallel multiple rope sections of the length of rope of the elongate member.
2. A coupling device as claimed in claim 1 or 2 wherein the at least one length of rope is of an Ultra-high molecular weight polyethylene.
3. A coupling device as claimed in any one of claims 1 to 3 wherein the at least one length of rope is selected from one of Dyneema, Spectra and Technora.
4. A coupling device as claimed in any one of claims 1 to 4 wherein the loop form or part loop form is of at least 3 parallel rope sections of the least one length of rope.
5. A coupling device as claimed in any one of claims 1 to 5 wherein the loop form or part loop form is of least 4 parallel rope sections of the least one length of rope.
6. A coupling device as claimed in any one of claims 1 to 6 wherein the loop form or part loop form is of least 6 parallel rope sections of the least one length of rope.
7. A coupling device as claimed in any one of claims 1 to 7 wherein the loop form or part loop form is of least 8 parallel rope sections of the least one length of rope.
8. A coupling as claimed in any one of claims 1 to 8 wherein the pin comprises a securement means to secure at least a portion of the flexible elongate member that is in contact with the pin.
9. A coupling as claimed in claim 9 wherein the securement means is in a form of a bracket that is attached to or is integrally formed with the pin.
10. A coupling as claimed in anyone of claims 1 to 10 wherein the at least one length of rope is wound into the loop form or part loop form by a plurality of windings of the at least one length of rope.
11. A coupling as claimed in claim 11 wherein the windings are of at least two different sizes.
12. A coupling as claimed in claim 11 or 12 wherein the loop form comprises of at least one outer winding and at least one inner winding inwardly of yet abutting and parallel the outer winding.
13. A coupling as claimed in any one of claims 11 to 13 wherein the loop form comprises of at least two outer windings and at least two inner windings inwardly of yet abutting and parallel the outer windings.
14. A coupling as claimed in any one of claims 11 or 14 wherein the loop form comprises of at least four outer windings and at least four inner windings inwardly of yet abutting and parallel the outer windings.
15. A coupling as claimed in any one of claims 1 to 11 wherein the length of rope is wound onto itself to define a plurality of rope windings, wherein there is at least one outer rope winding of a larger length than an inner rope winding.
16. A coupling device comprising:

a flexible elongate member comprising of at least two windings of at least one length of rope parallel each other and completing a loop of itself or with said pin and secured to the pin, and formed as or able to selectively form at least one smaller loop form with the pin, the at least one smaller loop form with the pin being a coupling form of the coupling device.

1. A coupling device as claimed in claim 17 wherein the at least two windings are of at least one length of rope and parallel each other and completing a loop of itself having a first bight at where the loop is secure to and about the pin and a second bight at where the loop is able to selectively secure to the pin to selectively form the smaller loop with the pin.
2. A coupling device as claimed in claim 18 wherein the second bight is able to selectively and releasable secure to the pin to selectively form the smaller loop with the pin.
3. A coupling device as claimed in any one of claims 17 to 19 wherein there are at least two different sized windings.
4. A coupling device as claimed in claimed any one of claims 17 wherein the flexible elongate member comprising of at least two windings of at least one length of rope parallel each other and completing a loop with said pin and secured to the pin, and able to selectively form at least one smaller loop form with the pin acting as a toggle, the at least one smaller loop form with the pin being a coupling form of the coupling device.
5. A coupling device as claimed in any one of claims 17 to 21 wherein the at least two windings of rope are formed from one length of rope.
6. A coupling device as claimed in claim 22 wherein the one length of rope is end spliced onto itself.
7. A coupling device as claimed in any one of claims 17 to 23 wherein the at least one length of rope is formed as at least four windings to define a core of the flexible elongate member comprising four rope sections.
8. A coupling device as claimed in any one of claims 17 to 24 wherein the at least one length of rope is formed as at least six windings to define a core of the flexible elongate member comprising six rope sections.
9. A coupling device as claimed in any one of claims 17 to 25 wherein the at least one length of rope is formed as at least eight windings to define a core of the flexible elongate member comprising eight rope sections.
10. A coupling as claimed in any one of claims 24 to 26 wherein at least two of said windings are provided inwardly of at least two windings outwardly thereof.
11. A coupling device as claimed in any one of claims 17 to 27 wherein two windings of rope are in pairs covered at least in part by a cover.
12. A coupling device as claimed in any one of claims 17 to 28 wherein a cover is provided about a pair of windings of rope at at least one and preferably a plurality of locations.
13. A coupling device as claimed in any one of claims 17 to 29 wherein a cover is provided about windings of rope in pairs at at least one bight in the smaller loop form.
14. A coupling device as claimed in any one of claims 17 to 30 wherein a cover is provided about windings of rope in pairs at each bight in the smaller loop form.
15. A coupling device comprising:

a first annular member and a second annular member,

a flexible elongate member formed from multiple windings of at least one length of rope formed to define a first bight received at a grooved rim of the first annular member and a second bight received at a grooved rim of the second annular member thereby connecting the first and the second annular members, the flexible elongate member comprising of multiple sections of said rope protectively and collectively ensheathed at least partially using a cover;

a pin in a form of an elongated body extending along a longitudinal axis and having two ends located opposite to each other at each of which said first and second annular member are able to be secured.

1. A coupling device as claimed in claim 32 wherein a first annular member has a first pin receiving aperture and a second annular member has a second pin receiving aperture, the first and second pin receiving apertures are both adapted to receive the pin therein, thereby allowing the pin to function as a cross member.
2. A coupling device comprising a flexible elongate member of at least one length of an at least twice wound rope and a pin configured to be removably and/or movabably (sic) engaged with the flexible elongate member, wherein the flexible elongate member is formed into as a loop or a part loop completing the loop with the pin, wherein at least one winding of rope is of disparate length to at least one other winding.
3. A coupling device that is able to loop through or over an anchor point of machinery to couple to the machinery and apply a force to the machinery, the device comprising formed of formable into a loop windings of at least one length of rope not all of the same size through the loop.
4. A coupling device that is able to locate through or over an anchor point of machinery to couple to the machinery at a bight of the coupling device and apply a force to the machinery, the bight of the device comprising a plurality sections of at least one length of rope wound into a loop form and provided at at least two different layers or radii at the bight.

1. The s36 request asserted that the Requestor was an eligible person and that the Applicant is not an eligible person, however the RWS also put the alternative position of joint entitlement[41].
2. In broad terms, the s36 request asserts that the invention subject to the application was conceived by the Requestor, with Mr Nicholson allegedly acting under instruction of Mr Leppard in reducing the inventive concept to practice. The alternative position of joint inventorship is premised on Mr Nicholson's work being more than reduction to practice. I will consider these matters further below.

1. As noted in Woodside Energy Limited v Richard John Moore [2018] APO 82 at [37] to [39], it is clear post the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 (Cth) that a Requestor bears the onus to prove its 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.

(a) a patent application has been made and, in the case of a complete application, the patent has not been granted; and

(b) an application for a declaration by the Commissioner is made by one or more persons (the section 36 applicants) in accordance with the regulations; and

(c) the Commissioner is satisfied on the balance of probabilities, in relation to an invention disclosed in the specification filed in relation to the application for the patent:

(i) that the nominated person is not an eligible person, but that the section 36 applicants are eligible persons; or

(ii) that the nominated person is an eligible person, but that the section 36 applicants are also eligible persons;

the Commissioner may declare in writing that the persons who the Commissioner is satisfied are eligible persons are eligible persons in relation to the invention as so disclosed."

1. The Dictionary at Schedule 1 of the Act defines an eligible person as follows:

"eligible person, in relation to an invention, means a person to whom a patent for the invention may be granted under section 15."

"Subject to this Act, a patent for an invention may only be granted to a person who:

(a) is the inventor; or

(b) would, on the grant of a patent for the invention, be entitled to have the patent assigned to the person; or

(c) derives title to the invention from the inventor or a person mentioned in paragraph (b); or

(d) is the legal representative of a deceased person mentioned in paragraph (a), (b) or (c)."

That is a patent may be granted to the inventor of an invention or someone who derives title to the invention from the inventor. Such a person is also an eligible person for the purposes of s36(1).

1. The law on inventorship/entitlement was 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:
   1. identify the "inventive concept" of the invention as defined in the claims.
   2. determine inventorship including the person responsible for the inventive concept and the time of conception as distinct from its verification and reduction into practice.
   3. determine whether any contractual or fiduciary relationships give rise to proprietary rights in the invention.
2. Polwood provides guidance with regard to determining the inventive concept at [60]:

"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."

1. I take the more recent judicial comments concerning identification of the inventive concept, at [62] to [66] of Vehicle Monitoring Systems Pty Ltd v SARB Management Group Pty Ltd [2021] FCAFC 224; 288 FCR 247; 399 ALR 670; 164 IPR 200 ("Sarb"), to be commensurate with Polwood (indeed [60] of Polwood is cited at [66] of Sarb).
2. It should be apparent, notwithstanding the reference to the claims in UWA, that the inventive concept(s) are determined by reference to the patent or patent application per se. That is, the exercise is not merely a matter of determining an "inventive concept(s)" for the claims as such but for the application or patent as a whole; see Kafataris v Davis [2016] FCAFC 134; 120 IPR 206 at [62] and Sarb at [61]. As noted in Polwood, the claims may claim less than the whole invention, and indeed may not claim an inventive concept at all. This is congruent with the words of s36 which are with respect to "...an invention disclosed in the specification..." (emphasis added). Section 36 clearly provides for remedies where an inventive concept may be disclosed in a specification but is not the subject of any claims[42].
3. It was noted by French J (as he was then) at [1426] of University of Western Australia v Gray (No 20) [2008] FCA 498 ("Gray") that:

"The inventive concept marks a boundary between invention and verification. An example arose in 1994 and 2002 in decisions reported in both the United States and Canada in relation to the use of the drug AZT to treat AIDS. Glaxo/Wellcome had identified a new use for an old compound in conceiving the idea that AZT would work in humans against the HIV retro virus. It used external scientists employed by the National Institutes of Health (NIH) to perform critical blind testing on the AZT and on other compounds (none of which were identified). The NIH scientists found that the AZT did inhibit HIV replication and so advised. The Glaxo/Wellcome patent was considered in the US Court of Appeals in Burroughs Wellcome Co v Barr Laboratories Inc [1994] USCAFED 1225; (1994) 40 F 3d 1223. The argument had been raised there that the patent was invalid because of the wrongful exclusion as inventors of the NIH scientists. The argument focussed on when the inventors conceived the invention. Burroughs Wellcome said it was before they learnt the results of the NIH tests. The respondents argued that the NIH confirmation of the inventions operability from the NIH tests was an essential part of the inventive process. The Court of Appeals held that the NIH scientists were not joint inventors. It set out the following principles as established by US appellate courts:

1. Conception is the touchstone of inventorship, the completion of the mental part of inventions.

2. Conception is the 'formation in the mind of the inventor of a definite and permanent idea of the complete and operative invention as it is hereafter to be applied in practice'. It is complete only when the idea is so clearly defined in the inventor's mind that only ordinary skill would be necessary to reduce the invention to practice without extensive research or experimentation.

3. An inventor need not know that the invention will work for conception to be complete. The inventor need only show that he or she had the idea. The discovery that an invention actually works is part of its reduction to practice.

4. It is not the law that the inventor's definite and permanent idea must include a reasonable expectation that the invention will work for its intended purpose even when it deals with uncertain or experimental disciplines where the inventor cannot reasonably believe that an idea will be operable until some result supports that conclusion.

The propositions set out in Burroughs Wellcome (1994) 40 F 3 1223 define 'invention' by reference to completion in concept which distinguishes the invention from its verification and reduction to practice."

1. Further ways in which contribution to, or determination of, the inventive concept have been expressed by the authorities as follows:
   • "Rights in an invention are determined by objectively assessing contributions to the invention, rather than an assessment of the inventiveness of respective contributions. If the final concept of the invention would not have come about without a particular person's involvement, then that person has entitlement to the invention. One must have regard to the invention as a whole, as well as the component parts and the relationship between the participants. The fact that the parties were in collaboration can be a major consideration: see Illuka Midwest Ltd v Wimmera Industrial Minerals Pty Ltd (2001) 55 IPR 140; Re Upham and Commissioner of Patents [1998] AATA 852; (1998) 28 AAR 276; Re Applications by CSIRO and Gilbert [1995] APO 16; (1995) 31 IPR 67; Row Weeder Pty Ltd v Nielsen [1997] APO 38; (1997) 39 IPR 400; Sunstrum & Payette v Boland (2003) 59 IPR 146." (JMVB Enterprises Pty Ltd v Camoflag Pty Ltd [2005] FCA 1474; 67 IPR 68 at [132]);
   • " Polwood adopted, without qualification, Crennan J's observation in JMVB that rights in an invention are determined by objectively assessing contributions to the invention rather than assessing the inventiveness of respective contributions. That approach conforms to principle. The invention or the inventive concept (in Polwood the Full Court appears to have used these terms synonymously) is discerned from the whole of the specification, not just the claims. However, the requirements of s 18 of the Act, dealing with the characteristics of a patentable invention, including (in the case of a standard patent) the need for an inventive step, are directed specifically to the invention as claimed (i.e., as defined by the claims). The question of entitlement is separate to, and distinct from, the question of patentability assessed by reference to the patent claims. It involves a broader inquiry. It stands to reason, therefore, that consideration of the requirements of patentability under s 18 of the Act, including the existence of an inventive step within the meaning of s 7(2) of the Act, is not part of the entitlement calculus." (Sarb at [104])
   • "...invention may reside in the conception of an idea, without the need for reduction to practice" (Sarb at [73]);
   • "...the inventive concept, derived from the specification as a whole, may be, or include, the manner in which an idea is carried out" (Sarb at [76], citing Polwood at [60] to [61];
   • "'...a person may be considered a joint inventor where they had a general idea of what was required, but someone else was required to put the ideas into effect and did so (Costa v G R & I E Daking Pty Ltd [1994] APO 23; (1994) 29 IPR 241)'; the 'key question is whether the person's contribution had a material effect on the final invention': Neobev Pty Ltd v Bacchus Distillery Pty Ltd (Administrators Appointed) (No 3) [2014] FCA 4; (2014) 104 IPR 249 at [108] (Vector Corrosion Technologies Limited v E-Chem Technologies Ltd [2022] FCA 188; 166 IPR 61 at [17(10)]); and
   • a person will not establish a claim to entitlement where his or her claimed contribution to the inventive concept is merely positing desiderata, making a vague proposal, a commercial stimulus or a high level idea (Sarb at [71], [178] and [184]).
2. Following the principles outlined in UWA, to decide the s36 request, I need to first identify the inventive concept (or potentially inventive concepts) 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.

1. On reading the entirety of the opposed application it is apparent, from background discussion of the art and the problems therein, the consistory statements, the claims, and elsewhere in the specification, that the inventive concept for the application resides in:
   • a soft coupling device comprising a pin that may be used with heavy loads, comprising the following:
     • A flexible elongate member secured to the pin that forms a loop with itself or the pin to form the coupling form of the coupling device;
     • a flexible elongate member comprising a length of rope that is differentially wound or formed to define two or more rope sections/stacked layers of the loop that are parallel to each other; and
       • the flexible elongate member is at least part protectively sheathed with a cover to protect at least part of the rope sections.

For convenience, I will refer to the idea of using soft coupling devices for heavy loads as an alternative to conventional steel shackles as the "soft coupling concept" and the structural aspects of the inventive concept as the "structural aspects concept".

1. I note that by "heavy loads" as used in the inventive concept I mean loads that would typically require the use of conventional steel shackles that are very heavy and bulky and which typically weigh 50kg or more or more than 60kg, as discussed in the background section of the application and elsewhere in the application[43]. While the application is not explicit as to what such loads are, it is apparent that these are about 100 tonnes or more[44], particularly in view of the references to heavy machinery recovery in general, such as bulldozers and trucks[45] or use in heavy industry[46] and in the mining industry in particular[47]. I note that the application[48] does refer to the load being 20 tonnes or more in various places, however it is readily apparent that the invention is directed to address loads much greater than 20 tonnes, by the references to loads of a load limit of at least 280 tonne, less than 600 tonnes or with a break strength of 510 tonnes[49], as well as the aforementioned references to heavy machinery and mining. I also observe that the fact Mr Nicholson had already developed a dogbone with a 38 tonne load limit for the marine industry[50] suggests that the inventive concept does not relate to making soft coupling devices with a load limit of 20 tonnes[51].
2. The Applicant put forward the following as the inventive concept in the AWS[52]:

"Thus, the inventive concept is a combination of the following features of a soft coupling device which enables achievement of this objective: > > (a) the use of parallel stacking of a continuous length of rope (which is necessarily wound in a differential manner); > > (b) the integration of a pin around which the parallel stacked rope is secured; and > > (c) the use of a sheath to cover at least part of the rope sections."

As I understood it, Mr Creighton-Selvay reiterated this as the inventive concept at the hearing, albeit with rather more emphasis on the parallel stacking/differential winding.

1. While the Applicant's inventive concept bears some similarities with my identification of the same, it is not identical. In that regard, concerning integration with a pin, the level this is put by the Applicant simply represents the inherently known features of soft coupling devices per se, because all such devices comprise a pin and rope. While the application does discuss or disclose aspects of pins that are used to seat or arrange the rope[53] this does not appear to form the heart of the invention given the extent, or lack of extent, to which this is discussed and the fact that no apparent benefits of this is discussed in the application. In any case, even if one assumes that integration of the pin formed part of the inventive concept in some way, it will become apparent from the remainder of this decision that this would have no effect on the conclusions reached concerning entitlement.
2. Notably, the Applicant's formulation of the inventive concept omits any reference to the coupling device being used for heavy loads. The following from the AWS is representative of the Applicant's position in this regard:

"Second, RS [2] asserts that the invention was 'conceived of by Mr Leppard in or around January 2019 following attending a recovery incident for work which resulted in a fatality'. On the evidence, all that Mr Leppard could have conceived of in January 2019 was a 500 tonne soft shackle. That is not the inventive concept as described or claimed and ignores the combination of features which appear in claim 1 (and the other claims). Tellingly, none of the claims specify a particular load capacity. It is presumably for this reason that RS [35] asserts, without providing any explanation, that 'the specification rather than the claims provides greater assistance to the reader to establish the heart of the invention'. Such an approach is contrary to the accepted principle, as conveniently summarised by Justice Jagot in Vector Corrosion Technologies Limited v E-Chem Technologies Ltd [2022] FCA 188; (2022) 166 IPR 61 at [17] (emphasis added): > > '(4) "what constitutes the invention can be determined from the particular patent specification including the claims": Gray FC at [1439]; > > ... > > (6) the invention or inventive concept of a patent or patent application should be discerned from the whole of the specification including the claims: citing Polwood Pty Ltd v Foxworth Pty Ltd [2008] FCAFC 9; (2008) 165 FCR 527 at [60], affirmed in University of Western Australia v Gray [2009] FCAFC 116; (2009) 179 FCR 346 (Gray FFC) at [222];'"[54] (emphasis in original)

3. It is not clear to me that what the Requestor propounds at [35] of the RWS is necessarily wrong as a matter of principle. The Requestor has not stated that one should ignore the claims, simply argued in this case that the specification is of greater assistance than the claims. Similarly, I did not take the Applicant's recourse to the fact that the claims do not mention a load capacity at all as suggesting that one should necessarily ignore the specification. It is simply the fact that either party has sought, unsurprisingly, to "colour" or emphasise aspects of the analysis of the inventive concept in a way that best suits their purposes. The simple fact is that Australian law does not seek to a priori emphasise one part of the specification over the other, but to consider the specification as whole. It may be that in some cases that one or the other of the claims and the specification may be of more weight depending on the circumstances[55], however I do not see any basis to do so in the present case. The fact that the claims do not mention any load rating is, of course, of some interest, but is hardly definitive.
4. In that regard, it is quite apparent from reading the specification as a whole, including the claims[56], that the inventive concept is as I have framed it. The Applicant's formulation of the inventive concept is essentially focussed on the structural aspects concept of the coupling device that enables a soft coupling device to be used with heavy loads, whilst ignoring that part of the inventive concept relates to the very use of such soft coupling devices to heavy loads in the first place. Indeed, the manufacturing process outlined in the specification does not exist in the abstract - it only makes sense in the context of soft coupling devices.
5. The object of the invention, in my opinion, reinforces my view on the inventive concept. The object as apparent from the application[57] and as identified by both parties[58] relates to overcoming difficulties concerning the safety, weight and handling of existing steel coupling devices used for heavy loads. In meeting this object the invention as described proceeds from the use of a soft coupling device for heavy loads, and that this must have been chosen as opposed to other possible coupling devices or development of a hitherto unknown class of coupling devices. This choice then informed the remainder of the inventive concept in terms of outlining the structural details of the soft coupling devices that allows these to meet the object, and indeed the application refers in several places to the load capacity of the soft coupling devices[59].
6. The AWS further discusses the inventive concept put forward by the Applicant[60] in terms that generally support my views on the same. I do note, however, that the use of a "pin" (i.e. the dogbone configuration[61]) as opposed to knot and rope soft couplings does not form a distinct element in the inventive concept per se, as asserted by Applicant[62]. No where does the application refer to using a pin for the purposes of avoiding difficulties with the knot and rope configuration, nor is the knot and rope configuration mentioned anywhere in the application. . Congruent with this is the fact that Mr Nicholson already preferred the known dogbone to the knot and rope configuration because the knot and rope configuration was "best suited for light loads"[63] and in view of viability issues[64] highlighted by the fact that the heaviest rated soft couplings made by Mr Nicholson were of the dogbone configuration[65]. I also observe that Mr Creighton-Selvay did not discuss this matter at the hearing.
7. For its part, the RWS identified the inventive concept as being congruent with the object of the invention:

"The inventive concept (or heart) of the invention disclosed in the 266 Application is a coupling device which can withstand a very high load limit, but which nonetheless overcomes the issues relating to weight, handling difficulty and danger when breaking under load, in traditional metal coupling devices."[66]

8. This does not, in my view, reflect the inventive concept as outlined in the application. While such an "object" may give birth to an inventive concept, it is hard to characterise it as one per se. Rather, the RWS's inventive concept is simply positing desiderata or a high level idea as outlined in Sarb. I note that the Applicant characterises the Requestor's inventive concept as "...a known goal..." that Mr Nicholson was working towards before he was contacted by Mr Leppard in 2019[67]. While there is little evidence on this point, I tend to agree that this was a known goal or object and I will consider the extent to which Mr Nicholson could be said to be working towards this and developing a soft coupling device for heavy loads later in this decision.
9. I do note that Ms McKenzie provided a somewhat different inventive concept at the hearing:

"As to the inventive concept in applying those principles, the heart of the invention resides in the development of a coupling device which can withstand a high load limit, but which nonetheless overcomes the known issues, including in the recovery context. It is the use of soft shackles in a heavy load context." (emphasis added)

"As to the second point, which is the emphasis placed on the fact that the inventive concept propounded by the requestor doesn't include a particular MBF or component sizes, this is rather to the point, the applicant's case is not that the invention is limited to 500 tonne application, the subject of the text message. The idea of applying soft shackles to the recovery and mining applications in lieu of traditional steel shackles, not so limited to a particular tonnage but capable of heavy machinery haulage is the idea." (emphasis added)

1. Given the sentences in emphasis, it may be that the RWS really intended to refer to the soft coupling concept as the inventive concept, and I take it that ultimately this is what the Requestor puts forward as the inventive concept. Whilst I agree that this forms part of the inventive concept, it should be apparent for reasons already provided that I do not consider this to form the entirety of the inventive concept.
2. The RWS also seeks to refute what it took to the inventive concept put by the Applicant:

"Mr Nicholson (and Rigging Concepts) propounds that the inventive concept resides in the use of parallel stacking and layering of ropes in conjunction with a metallic component (a pin) and winding the ropes in a differential manner. > > This is not so for at least the following reasons:

(a) the configuration of ropes is not the heart of the invention based on a fair reading of the specification;

(b) further, the ropes used and the configurations disclosed were not new, are clearly uninventive and thus may be excluded from the alleged invention."[68]

1. Ms McKenzie made similar statements at the hearing, arguing that:

"...it's worth pausing and reflecting on the fact that the detailed description of the preferred embodiments directed to figures one and three to six make no reference to parallel stacking. Figures 2A and 2B disclose that the flexible elongate Member 104 preferably comprises of two sections of rope or rope configured in a parallel manner, and the descriptions provide that the flexible, elongate member may comprise a protective sheath, at least partially located about discrete parts or the entire length of the multi rope assembly"

2. Ms McKenzie's comments appear to differentiate between "parallel stacking" and a "parallel configuration", but to the extent there is any difference in these, the inventive concept as I identify it encompasses both these configurations. As I understand it, Ms McKenzie's comments seek to expand on the "fair reading" argument from the RWS by referring to the fact that the parallel configuration is a preferred embodiment. However, for reasons as discussed above, I disagree that the configuration of the rope is not at the heart of the invention. The application makes it plain that the configuration concerned enables the soft coupling devices to be used for heavy loads, even if at various points this may be discussed as a preferred embodiment.
3. Turning to the Requestor's submissions on inventiveness, the suggestion that the rope configuration outlined in the specification are uninventive and are therefore (in general terms as I understand the submission put), excluded from the inventive concept is simply incorrect under Australian law, notwithstanding Ms McKenzie's recourse to Bodkin at the hearing[69]. As noted in Sarb at [104] entitlement is determined by assessing contributions to the invention rather than the inventiveness of those contributions. It might be that a specification does in fact describe or present an inventive concept that is entirely lacking in novelty or inventive step, but that does not necessarily negate the inventor or inventors' conception in arriving at the inventive concept that gives rise to inventorship for the purposes of s15. Inventorship under the Patents Act is not concerned with whether one has reinvented the wheel.
4. This is not to say that considerations of what was known or used in the art are necessarily excluded from assessing inventorship under Australian law. It may be apparent from a specification and/or the evidence tendered that something appearing in a specification is understood or represented as pre-existing knowledge or techniques known to the inventor(s) and which forms no part of the inventive concept(s) but may be used in, or as part of, bringing those concepts to life, that is "mere" reduction to practice. The point is that much depends on what the specification and the evidence shows forms part of the journey leading to the putative inventive concept as understood by those persons claiming inventorship, not whether that journey or where it ended is in fact novel or inventive in some way[70].
5. The Requestor[71], in support of its position, points to Mr Pauli's evidence[72], in both of his declarations, concerning how well known the methods used to make the soft coupling devices outlined in the application are. However, these go to the alleged inventiveness of Mr Nicholson's contribution to the inventive concept[73]. They do not assist in identifying the inventive concept per se, but I also observe that, even assuming Mr Pauli is correct, the inventive concept includes the use of those techniques in the context of soft coupling devices for heavy loads which is something not addressed in Mr Pauli's evidence, and which is an answer to Ms McKenize's arguments at the hearing about reduction to practice even if the question of inventiveness was not conclusive. Although not expressed in the same way in his declaration[74], Mr Nicholson raises essentially the same point, which Mr Pauli responds to, not with any technical discussion to the contrary, but by simply stating this to be Mr Nicholson's opinion[75].
6. The Requestor also refers to the messages between Mr Leppard and Mr Nicholson as supporting its views of the inventive concept[76]:

"Further, in this regard, Mr Nicholson acknowledges in a message to Mr Leppard that the type of splice is not new: "it's funny because my splice was fist done 500 years ago...the type of splice..."[77] (typographical error in original). > > Relatedly, the message exchange between Mr Leppard and Mr Nicholson at around 28 May 2019 (below)[78] shows Mr Leppard sent to Mr Nicholson photographs which showed his daughter holding a coupling device. The text exchange below those photographs show Mr Nicholson referring to innovation awards (inadvertently referred to as 'innovation rewards') and a reference to Mr Nicholson sending notes for something that Mr Leppard is submitting shortly. It is apparent from a review of the exchange that Mr Nicholson and Mr Leppard were referring to the submission for the innovation awards. > > A few days later (around 31 May 2019) Mr Nicholson sends Mr Leppard the following further two messages: 'Just seen the photos for your PowerPoint! I love the one with your girl in it!! Really states the whole idea!!'[79]

Whether or not it is accepted that the presentation being referred to a few days later was the same presentation for the innovation awards, or for some other marketing purpose, it is tolerably clear that the photo being referred to is one of the two above pictures, more likely the one on the left. And further, that despite what is being put forward by Mr Nicholson now, he readily acknowledged back in May 2019 that the 'whole idea' (i.e., the inventive concept) was that the device was light enough for a child to carry it." (references to footnotes in the RWS removed)

1. None of this is as helpful as the Requestor would like it to be. Splicing does not form any part of the inventive concept. Mr Nicholson's comments concerning the antiquity of his splice is, at best, evidence of that fact per se which is ultimately irrelevant to the present matter, nor is this an admission that somehow his contribution is a reduction to practice that does not contribute to the inventive concept.
2. Additionally the following messages concerning potential competition, on 21 May 2019, are rather instructive[80]:

Mr Leppard: See Bullvants [sic] did the testing, they will be our main competitor one day *Bullivants > > Mr Nicholson: Yeah I'm not sure that they know what there [sic] looking at. Unless they cut it open and had a look...still. We have the experience and the systems already in place...would be hard to rip off...the next ones will be heaps nicer! > > Mr Leppard: I doubt it, but will soon work it out > > Mr Nicholson: I honestly cannot find anyone worldwide that's doing this I [sic]. Any industry's [sic]. I recon [sic] we could go to the USArmy [sic] to Seel [sic] them! Sell them...

As are these messages on 22 May 2019[81]:

Mr Nicholson: I wouldn't worry about anyone ripping off the idea. It's first over the line that wins the advantage. Then everybody else is playing catch up. We have both worked out arses off by using our combined knowledge of years in our industries...it would honestly take someone else the same amount of time if not more...

Mr Leppard: ...Yep, dead right bro

1. These messages suggest that Mr Nicholson had a genuine belief at the time that the soft coupling devices themselves and the nature of how these were made was new. The fact that Mr Nicholson considered how they were made to be important is underscored by the fact he states that Bullivants would not know what they were unless they cut the devices open. These messages suggest that Mr Nicholson, at the time, did not consider that the "idea" of making a coupling device that was light encompassed the invention in its entirety.
2. Given the nature of the exchanges and the background of both parties, it is also reasonable to believe Mr Nicholson and Mr Leppard both had a limited understanding of patents and what an invention was or of an inventive concept for the purposes of the Act at the time. It is therefore rather difficult, if not absurd, to imbue discussions of "ideas" or even of "inventions", however described or discussed between the parties at the time, with the retrospective understanding of a patent professional and then draw inferences as to what the parties meant for the purposes of s15 of the Patents Act. Similar may be said for the absence of suggestion of invention or obligations of confidence and the like in the messages between Mr Nicholson and Mr Leppard, as put for example, by Mr Creighton-Selvay at the hearing with respect to Mr Leppard's initial contact with Mr Nicholson in January 2019.
3. Having said that, if anything, whilst one can hardly take either or Mr Nicholson or Mr Leppard as having extensive knowledge of patents, it is quite clear that Mr Leppard was rather less familiar with patents than Mr Nicholson in 2019. This is borne out, firstly, by the fact that Mr Leppard did not appear to appreciate any of the potential implications of patents, until it was raised with him by a General Manager at his then place of work and that this "spoked" (sic "spooked") Mr Leppard, as apparent in the chat with Mr Nicholson on 5 June 2019[82]. This is consistent with Mr Leppard's evidence that he did not have any real understanding of what a patent was in 2019[83]. Secondly, it was Mr Nicholson, and not Mr Leppard, who "made sure" a patent application was filed before the innovation awards[84] in August 2019[85], presumably because Mr Nicholson understood, at least in some way, the concept of priority in patent law.
4. At the hearing, Ms McKenzie also pointed to the short time frame in which Mr Nicholson provided quotes to Mr Leppard as evidence of Mr Nicholson's contribution being reduction to practice as opposed to overcoming problems[86]. However, as will be seen in discussing who was responsible for the inventive concept below, the evidence shows that development of the structural aspects concept occurred over several months after Mr Leppard contacted Mr Nicholson.

1. In simple terms, two people are responsible for the inventive concept; Mr Leppard and Mr Nicholson. Mr Leppard conceived of the idea of using soft coupling devices for heavy loads as an alternative to conventional steel shackles, whilst Mr Nicholson is responsible for the structural aspects of the soft coupling device that enables the soft coupling device to actually be used for such heavy loads. I will explain my reasoning further below by reference to the evidence and the parties' submissions, noting that I have reservations about some aspects of the evidence of Mr Leppard and Mr Nicholson that I will discuss where appropriate.
2. With respect to the soft coupling concept, Mr Leppard's evidence concerning the conception of the same is as follows in his first declaration:

"Given my experience in having to personally lift and move heavy D shackles (such as that which I explained above), some of them weighing up to 58kgs, seeing many workplace injuries and lost man hours as a result, and given my experience in soft shackles from yacht racing, I believed that a potential solution to this problem was a form of soft shackle to replace the heavy D shackles. I formed this idea, taking inspiration from the soft shackles that I had used on racing yachts. > > On New Years Eve 2018, I was a leader of a group of first responders to an accident in which a dozer had overturned down a steep embankment on site and into water at the bottom of the pit. With no road access, the recovery team, including me, had to carry heavy recovery equipment, including 6 Steel D shackles weighing 58kg each to the accident location. To the best of my recollection, it took at least 30 mins to carry the shackles down, with 8 people making 2 trips each, and breaking the shackles up into parts such as the nut, the pin (20kgs) and the main body (35kgs) to make their loads lighter. We carried this very heavy and cumbersome equipment down the steep embankment, and navigated our way over 'over blast' (large rocks left behind after the explosive blasts to blow the rock up for extraction). I recall jumping from rock to rock carrying this gear into the bottom of the pit to use it to hook another dozer up to the upturned dozer in an attempt to up right it, not knowing at this stage if the operator was alive. Unfortunately, this incident was a fatality. > > In the days afterwards, I spent a lot of time thinking about how first responders to the accident, including myself, would have been able to get to the accident location much more quickly, and what we could have done to change the outcome and in one trip, if we did not have to contend with heavy D shackles. Our attempt to right the submerged dozer would also have been safer, because we would not be trying to handle very heavy equipment in water. > > In this regard, I believed at that time that to implement this idea, different variations of a soft coupling would be required to fit the different types of attachment points on equipment. For example, the fronts of trucks have lugs that can be used with an attachment that has a pin type mechanism. However, dozers may not have a tow point, and in certain circumstances, the coupling would need to be attached to the ripper shank, and so a soft shackle with a pin mechanism would not work (as there is nothing to attach it to). > > In this regard, I decided that a dog bone type shackle may be a solution in terms of towing dozers. However, I did not know at this stage if my idea would work until I had a prototype made and tested, particularly in its use over the sharp edges of the ripper shank. > > Similarly, at this time my idea was that with trucks, that have lugs that can be used with pins, that a pin mechanism with a soft rope component would make this equipment much lighter than existing shackles and so easier to use. > > In mid January 2019, I began the process of getting a prototype of both my lightweight but high weight bearing dog bone and the pin formats of the soft shackles made. On the 12th January 2019 I contacted Nick Nicholson (who is the inventor named on the Application) A copy of a text message I sent Nick at this time to ask if he had the capability to manufacture 500 tonne soft shackles is exhibited to me and marked JRL-1. I note that 'Pommy Menace' is what he calls himself, and is his name on Facebook > > I reached out to Nick because I had sailed/raced with him previously, and he worked for large company at the time called Doyles who is a trusted name in sailing for rigging and sails for yachts. I knew Nick as a yacht rigger who made soft shackles for sailing, and so I expected that he/Doyles, would have the capability to make the prototypes that I required.[87]" (emphasis in original)

3. Mr Leppard's experience in yachting and the use of soft shackles therein is indicated earlier in his first declaration at [11] and [12]:

"I have been an avid sailor since childhood when racing dinghies, right though to later years where I have raced on many different yachts and sizes up to yachts over 100 feet. > > In 2009, I completed my first Sydney to Hobart Yacht Race on a race yacht called Nips & Tucks. This was my first exposure to soft shackles. In the sailing industry, soft shackles are used for rigging, amongst other things, and are made from a strong fibre. They are used as an alternative to small steel shackles or tylaskas."

4. In my view the above, save for some reservations concerning paragraphs [18] and [19] that I will discuss below, is compelling evidence in terms of genesis of the soft coupling concept, in that Mr Leppard conceived of this in early January 2019 before he contacted Mr Nicholson on 12 January 2019. It strikes me as inherently plausible that such an event would stick in one's mind and the experience thereof would tend to initiate thought processes directed to dealing with the difficulties faced in such a situation in using such heavy and cumbersome shackles. Mr Leppards's sailing experience and encounters with soft shackles as part of this lend further plausibility to Mr Leppard's thought processes that resulted in the soft coupling concept. I also note that the first time the soft coupling concept, albeit with respect to 500 tonne soft shackles, appears in the contemporaneous evidence is when Mr Leppard contacted Mr Nicholson on 12 January 2019[88]. I will also discuss below how Mr Nicholson was not responsible for the soft coupling concept but rather developed the structural aspects concept after being contacted by Mr Leppard, which further reinforces my views on Mr Leppard's contribution to the inventive concept.
5. In that regard, the Applicant has sought to cast doubt over Mr Leppard's evidence concerning conception and contribution to the inventive concept:

"RS [46][89] asserts that Mr Leppard in fact conceived of a dog bone shackle as a solution for towing dozers and cites Leppard 1 at [18] in support. Leppard 1 at [18] refers generally to the idea of different variations of soft coupling being required and at [19] states that 'he decided that a dog bone type shackle may be a solution'. No contemporaneous documents are provided in support of that assertion and, particularly in light of Mr Nicholson's 12 January 2019 email, there is no basis to infer that Mr Leppard was even aware of a dog bone configuration, far less conceived it.[90]" (emphasis in original) > > "It could not be clearer from the contemporaneous documents that both the soft shackle configuration with pin, and dog bone configuration, emanated from Mr Nicholson. Indeed, there is no evidence that Mr Leppard was even aware of those configurations prior to January 2019. His request was merely for a generic and unspecified 'soft shackle'."[91]

6. There is some force to these submissions. In contacting Mr Nicholson on 12 January 2019, Mr Leppard simply asks for a "...six 500ton [sic] soft shackles bro...[92]" (emphasis added). Given my discussion above concerning nomenclature, notionally it is not immediately clear whether Mr Leppard is asking for soft coupling devices as a class or specifically for a soft D-shackle. At no time in the early stages of their messages or emails does Mr Leppard refer to using dogbones or soft D-shackles for use in particular contexts, which appears somewhat unusual given Mr Leppard's statements at [18] and [19] of his first declaration. Notably, the first time a soft D-shackle appears in the messages between Mr Leppard and Mr Nicholson is made by Mr Nicholson on 16 January 2019, who (somewhat) confusingly referred to this as a "soft shackle" as opposed to the dogbone discussed in the same message, and indicates that this "...will be built with a pin to suit the lug" while the "...dogbone will be used for the loop attachments on the other end of the tow..."[93]. As I understand it, these statements by Mr Nicholson are in response to Mr Leppard sending photos of various tow points on different items of mining machinery, including several with lugs, sent by Mr Leppard to Mr Nicholson by email on 15 January 2019[94]. Hence the first positive suggestion in the messages and emails concerning the use of dogbones and soft D-shackles in certain contexts was made by Mr Nicholson, a fact that is unusual in juxtaposition to Mr Leppard's evidence at [18] and [19] of his first declaration.
7. Further, Mr Leppard makes the following statements in his evidence:

"I note that the message chain refers to me sending Nick[95] an email about my request. I no longer have a copy of that email as it was sent from an email account that I no longer have access to. However, to the best of my recollection, I set out in my email to Nick (i) the shape of each shackle that I wanted by reference to the similar sailing shackles; (ii) dimensions of the attachments that both versions needed to fit inside of (ie. for both the dozer and also a truck attachment), and (iii) my requirements in terms of weight (as light as possible) and in terms of strength (ie. that they need strength (ie. that they need to tow very heavy machinery, which requires a break load of about 500 tonnes). > > I note that Nick replied to my email via our messages, and said: > > 'Cool, okay so these can be done. Just awaiting a quote for machining the dogbones. What do you think: Alloy or Stainless dogbones? Obviously this will impact on the final price . The dog bones will weigh around 5 or 6 kgs once finished."[96]

As I understand it, the email concerned is dated 15 January 2019 at pages 9 to 12 of Attachment A It is possible that Mr Leppard also or alternatively meant the email dated 13 January 2019 at page 39 page 3 of Attachment A, but this merely refers to a break weight of 500 tons, a working weight of 85 tons and the diameter of a shackle loop and an indication to send more photos which presumably comprise those in the email of 15 January 2019[97]. Those photos show a variety of towing attachment points for different machinery used in a mining context. The photos also comprise various measurements of the attachment points concerned and also specify the loaded weights of the two trucks concerned but not of the other machines. The email says nothing about the shape of each shackle by reference to similar sailing shackles or weight requirements, that is the weight per se, for the soft coupling devices.

1. Of course, it is possible that Mr Leppard's statements at [18] and [19] of his declaration accurately reflect the inventive journey that took place is his mind before contacting Mr Nicholson, as opposed to a retrospective reimagining of what occurred due to the subtle effects of personal interest and the frailties of human memory. In this regard, before any further details are provided by Mr Leppard, Mr Nicholson responds to Mr Leppard's request for "soft shackles" by email the same day[98], indicating that he is "...designing up a dogbone to suit" and asking for further information on the shackles the dogbones are intended to replace[99]. If Mr Nicholson took Mr Leppard to be specifically asking for soft D-shackles then it is not clear why he immediately proposed a dogbone. It appears to me that Mr Nicholson understood that Mr Leppard was referring to soft coupling devices (i.e. to both dogbones and soft D-shackles as a class), and, in the absence of further information, quickly proposed a dogbone type of soft coupling device presumably because he had developed a 38 tonne dogbone in 2018 that "...was the largest of its kind"[100]. The fact that Mr Nicholson understood Mr Leppard to be referring to soft coupling devices is reinforced by the fact that Mr Nicholson, in a message sent on 13 January 2019, sent Mr Leppard a number of photos said to show "...various applications..." comprising both dogbone and soft D-shackle devices[101].
2. Mr Leppard's reactions to these exchanges do not betray any consternation or confusion, for example, in response to Mr Nicholson proposing a dogbone when he asked for a soft shackle, which on one level suggests that Mr Leppard was at least aware of different types of soft coupling devices, and his messages at this early stage are not inconsistent with an understanding of the different types of soft coupling devices. While Mr Leppard's recollection of the email clearly illustrates, at the very least, the vagaries of human memory, it can be broadly understood as being consistent with the context of these earlier messages and emails as a whole, albeit there is no indication of using different types of soft coupling devices in different contexts.
3. In any case, while I have some reservations about whether Mr Leppard in fact identified the use of different soft coupling devices in different contexts before contacting Mr Nicholson on 12 January 2019, ultimately the Applicant's submissions miss the point that conception of a dogbone or a soft D-shackle per se does not form part of the inventive concept[102]. Indeed, while keeping in mind the fact that "inventiveness" forms no part of the calculus in determining inventorship, the evidence from both parties indicates that, in a general sense, these forms of soft coupling devices were well known in the art of sailing before the priority date[103]. While examples of either are presented in the application, there is nothing in the application that indicates that the inventive concept relates in some way to the use of dogbones or soft D-shackles in certain contexts. Rather, the different forms are presented for use with known types of attachment points used on machinery, and, as best understood in keeping with how such types of soft coupling devices would typically be utilised[104]. For example figure 8 illustrates a dogbone coupling to a tow point comprising a lug and pin, whilst figure 10 illustrates a soft D-shackle coupling to a lug without a pin. No further illustration or discussion of the different uses of the dogbone of soft D-shackles appears in the application[105], which is essentially concerned with the use of soft coupling devices for heavy loads and the structure of such devices.
4. Notably, despite the Applicant's contentions concerning the genesis of the different configurations, the Applicant does not suggest that the particular identification, selection or use of the type of soft coupling device for certain contexts, or for any other reason, forms part of the inventive concept[106]. It is quite clear in my view that Mr Leppard was aware of soft coupling devices before contacting Mr Nicholson on 12 January 2019 (even if it may be argued that his knowledge of the same was incomplete) underscored by the fact that he chose to contact Mr Nicholson because of his expertise concerning soft shackles[107].
5. There was some effort by the Applicant to paint Mr Nicholson as working towards the object of the invention by upscaling his existing soft coupling devices prior to Mr Leppard contacting him in January 2019. The Applicant's contentions in this regard appear to be made to undermine Mr Leppard's claims of inventorship by suggesting that Mr Nicholson was already working on developing soft coupling devices for the mining industry before he was contacted by Mr Leppard. This is perhaps best exemplified by the following from the AWS[108]:

"RS [51] asserts that Mr Nicholson did not himself consider applying his knowledge from the marine industry to the mining industry. That submission goes nowhere as Mr Leppard does not assert that the inventive concept is the translation of a marine device into the mining industry. In any event, the evidence shows that Mr Nicholson was aware of potential applications of his devices in the mining industry. For example:

(a) In 2017 Mr Nicholson had been approached by a materials provider to the mining industry.[109]

(b) On 25 May 2019 in the context of a discussion with Mr Leppard on a different mining device Mr Nicholson responded with 'I've been approached about this idea before'.[110]

(c) On 6 April 2019 in an exchange with Mr Leppard, Mr Nicholson said 'I've always known there was potential in your market'"[111]

1. Similarly the following from the AWS seeks to undermine Mr Leppard's contribution to the invention[112]:

"Contrary to RS [47] it is not 'incontrovertible the final concept would not have come about without Mr Leppard's initiation'. The evidence demonstrates that Mr Nicholson was progressively increasing the size of his soft shackle coupling devices. > > At best, Mr Leppard provided the 'commercial stimulus' for the invention but, as was the case in Neobev, that does not constitute a material contribution to the invention warranting entitlement."

2. The references to "his devices" in the AWS at [59] is somewhat vague but does seem to imply the soft coupling devices as previously developed by Mr Nicholson, although it could mean "devices" associated with rigging more generally[113]. To the extent "soft coupling devices" are meant this is a rather optimistic take on the evidence, if not outright specious. The approach to Mr Nicholson in 2017[114] about providing materials to the mining industry related to cables, not soft coupling devices. There is no evidence that the approach concerning cables in 2017 led to Mr Nicholson supplying anything to the mining industry before Mr Leppard contacted him in January 2019, let alone soft coupling devices, and indeed Mr Nicholson admits this to be the case[115]. The discussion about "being approached about an idea before"[116] concerned replacements for chains used as slings for cranes per se and does not indicate that this was with regard to anything in the mining industry[117], but again there is no evidence that Mr Nicholson did anything about the "idea" before early 2019. Vaguely knowing there is potential in a market is little more than evidence of knowledge of a potential economic opportunity which is meaningless in terms of inventorship in the absence of something actually being invented to take advantage of that opportunity.
3. If rigging more generally is meant, then the evidence concerned tends to show that Mr Nicholson was aware of opportunities in the mining industry for rigging in a general sense. However, as noted nothing came of this and being aware of opportunities for rigging in general hardly assists in establishing that Mr Nicholson was working on soft coupling devices for heavy loads before being contacted by Mr Leppard.
4. While the evidence does show that Mr Nicholson had progressively upscaled soft coupling devices, particularly dogbones[118], for use in the sailing industry there is no evidence, besides Mr Nicholson's declaration that I will address further below, that Mr Nicholson was actively researching or investigating the development of soft coupling devices comprising a working load limit that would typically be encountered in the mining industry, that is, commensurate with my understanding of "heavy" loads as discussed earlier in this decision. To the contrary, the evidence is rather more consistent with showing that Mr Nicholson developed his 38 tonne dogbone in 2018 with nothing further done by him to upscale soft coupling devices beyond this weight limit until Mr Leppard contacted him in January 2019[119]. Notably, I have reservations about Mr Nicholson's evidence as far as that goes to him working towards the object of the invention or the soft coupling concept before Mr Leppard's request. For reasons that I will explain further below, this is due to aspects of his evidence being internally inconsistent and/or implausible in view of other evidence.
5. In this regard, Mr Nicholson is at pains to point out that he needed to develop new techniques or methods to further upscale the soft coupling devices beyond his 38-tonne device and his evidence suggests that he was aware of these issues at the time he was contacted by Mr Leppard[120]. Mr Nicholson's evidence also suggests that he was already working on upscaling his 38 tonne dogbone, and was aware of difficulties in doing this, at the time he was contacted by Mr Leppard:

"Nothing further came from those discussions in April 2017, but on 12 January 2019, Josh approached me requesting 'six 500ton soft shackles' (a shackle with a break load of 500 ton and a 6:1 safety factor, would equate to an 85-tonne working load). He stated that these would 'lead to supplying other mines too if it works out' and asked if I could make these. Josh provided no information as to how such items might be produced, but this request provided me with the opportunity to dedicate more time to scaling up my 38-tonne soft shackle coupling device for commercial production." > > Josh provided me with his email details and that same day I responded by email asking for details of the shackle Josh wanted to replace. I also noted that I was 'running through the numbers and designing up a dog bone to suit and sent him some images of my earlier softshackle dog bones I had developed, including my 24-tonne soft dog bone shackle. Our conversation continued by text messages on 13 January 2019. I first asked for the shackle specifications or a photo with a pin size. Josh sent through details by email, and I responded noting that what he was after 'could be done'. I also asked Josh for his preference for alloy or stainless-steel dog bones, noting that the choice of material would have an impact on the final price. I also sent him further images of earlier, smaller dog-bone shackles that I had developed. I knew that a traditional soft shackle would not work in the circumstances he described, and as noted above, I also knew I could not simply form a soft shackle from a larger rope.[121]" (emphasis added) > > "Within four days of Josh requesting a 500-tonne soft shackle, I had conceptualised larger soft shackle coupling devices, envisioning how I would construct the device based on my earlier experience in developing the 8-, 24- and 38-tonne devices. The preliminary estimate I had provided on 14 January 2019 would ultimately increase significantly after I had properly investigated and developed potential construction methods, and the likely costs associated with construction. I knew only rough prices at this time, based on the nature of materials I might use and their associated costs. However, I knew that I would need to be innovative in the design, as the shackle requested would need to go to a much higher break load and safety factor than any I had previously manufactured or those available on the market at that time.[122]" (emphasis added)

6. The statement about spending "more time" to scale up the 38-tonne soft coupling device presupposes that Mr Nicholson was already working on doing so but had not yet achieved such a device when Mr Leppard contacted him. To the extent there is any ambiguity in this, Mr Nicholson's evidence later confirms that "...supersizing my 37[123]-tonne soft shackle was something I had already been working on[124]".
7. Despite Mr Nicholson indicating in his evidence that he was already working on upscaling his 38 tonne soft coupling device, that he "knew" that a traditional soft shackle would not work and needing to be "innovative" and his stated awareness of opportunities in the mining industry, Mr Nicholson makes no comment at or shortly after being contacted by Mr Leppard about any difficulties that there may be in developing a 500-tonne soft shackle[125] or that he had already started tackling these difficulties or that he was already working towards upscaling soft coupling devices. In my view it is very unusual that Mr Nicholson did not mention any of these things at or soon after he was contacted by Mr Leppard. One would expect that Mr Nicholson would have provided something to Mr Leppard about how he was already working to essentially the same goal, about the difficulties he states he already knew about, the innovation needed and/or the progress he had made on the same. It is also very unusual that, even during the course of entitlement proceedings, Mr Nicholson has been unable to produce any contemporaneous evidence that corroborates that he was in fact, in any way, working towards developing soft coupling devices for heavy loads.
8. Rather, after being contacted by Mr Leppard, Mr Nicholson asks for some specifications concerning the "shackle specifications" and "pin size" and upon receiving this on the same day responds "Cool, okay so these can be done"[126]. Further, Mr Nicholson states as follows in his evidence[127]:

"On 14 January 2019, I informed Josh that the dog bones would 'not be as cheap as the shackles' and referred to a 38-tonne dog bone I had done a few months earlier for $3420. I then commented that I would 'have a firm price later in the day'. Based on my experience supersizing soft shackle coupling devices, as discussed above, and my knowledge of how much rope would be required and the approximate price of the pin, I was able to very quickly put together a preliminary estimate for Josh. This initial estimate was sent to Josh on 14 January 2019."

While Mr Nicholson states, in a message to Mr Leppard on 16 January 2019 that:

"Okay, I think I've got a firm plan for the soft shackle (as per the photo below) and the dogbone..."[128]

1. This indicates that if Mr Nicholson was already working on upscaling his 38-tonne device, then he cannot have made much progress on this at the time he was contacted by Mr Leppard. One would expect that if Mr Nicholson had made significant progress on upscaling his 38-tonne soft coupling device he should have been able to offer something more than a "preliminary estimate" and would not need to come up with a "firm plan". Of course it is nominally possible that Mr Nicholson quickly came up with these things because of existing, if not significant work he had already done on upscaling his 38-tonne device, but again the fact he makes no mention at all of such pre-existing work undermines this possibility. Further, even if he had not undertaken significant work, it seems reasonable to believe that Mr Nicholson would already have been aware or should have been aware of relevant pin and shackle sizes, as being fundamental to upscaling his soft coupling devices, instead of needing these specifications from Mr Leppard.
2. Other passages of Mr Nicholson's evidence tend to show that Mr Nicholson only really appreciated the difficulties involved in developing soft coupling devices for heavy loads after being contacted by Mr Leppard, which further undermines the view that he was already working on such devices or was cognisant of the difficulties in their development. For example:

"Within four days of Josh requesting a 500-tonne soft shackle, I had conceptualised larger soft shackle coupling devices, envisioning how I would construct the device based on my earlier experience in developing the 8-, 24- and 38-tonne devices. The preliminary estimate I had provided on 14 January 2019 would ultimately increase significantly after I had properly investigated and developed potential construction methods, and the likely costs associated with construction. I knew only rough prices at this time, based on the nature of materials I might use and their associated costs. However, I knew that I would need to be innovative in the design, as the shackle requested would need to go to a much higher break load and safety factor than any I had previously manufactured or those available on the market at that time. > > During my discussions with Josh, I informed him that a dog bone cannot be passed through a pin hole as this will damage the materials**. I therefore informed Josh that I needed time to come up with a shackle/pin design arrangement. This arrangement was not new to me, but I was trying to come up with a larger design that would be safe and reliable.** By 16 January 2019, I had come up with a suitable arrangement to carry out further design work on. Attached and marked Exhibit NJN-7 are screenshots of messages I sent Josh on 16 January 2019 relating to the pin arrangement. As shown in Exhibit NJN-7, I specifically asked Josh for 'the most standard/universal type truck etc - the ones you use the most and that are available to you.' That is, I was asking Josh for standard/universal sizing. > > Subsequent to the provision of my preliminary estimate, I worked quickly to transform my new design from a concept to reality. I first designed my new soft shackle coupling device on paper, drawing my concept by hand so that I could work on the pin format. Then, with the help of the design team at Doyles, I had my concepts drawn up on computer-based design software. I also worked with known suppliers on the pins that would be required. I also manufactured a 'mock-up' shackle to show how the products might appear. > > This first sample of the coupling embodiment gave me an understanding of what my soft shackle coupling device might look like and what size pin (dog bone) was required. Attached and marked Exhibit NJN-8 are images of this first sample. I was using scrap metals off the shelf - an unfinished sample piece of allow - trying to figure out what sizes I needed for final manufacture. This first sample was constructed using techniques based on then-known technology. > > By February 2019, I had manufactured further samples (2 x dog bone couplings and 2 x soft D shackle couplings). However, while I had worked out how to manufacture my soft shackle coupling devices, I realised I needed to build them more efficiently as the core materials had multiple twists in them. This is evident in the images of my first sample, as shown in Exhibit NJN-8 - the ropes are in a "bundle" and are clearly twisting. It is a known fact that for a rope to maximise and retain its full-strength potential, all strands of the rope must share the load equally. This load sharing and therefore strength of the rope is reduced when a rope is twisted. This also gives another example of why knot soft shackles do not work effectively and are not safe as the rope can easily twist. > > However, I considered my samples would suffice for testing in New Zealand as they would only be used once. If the ropes twisted just once, they would be ok. Attached and marked Exhibit NJN-9 is a copy of test report dated 1 February 2019 and test certificates dated 1 and 22 February 2019. Testing was carried out in New Zealand. The first test was of my initial sample, with further testing on the 22nd being of an updated dog bone with real pins attached. However, I could not guarantee what would happen if a load was pulled on twisted ropes. So, I still did not consider them satisfactory and, as an engineer, I could not in good conscience produce something that had an inherent safety flaw, Therefore, I could not give Josh one of these samples as the final product. > > So, after further investigations, in March 2019 I informed Josh that I was significantly rethinking the design of the requested 500-tonne soft shackle. This included a text message to Josh on 7 March 2019 that I was upgrading my existing samples to ensure they would meet a break load of 600-tonne. Attached and marked Exhibit NJN-10 is a copy of this text message. I wanted to ensure reliability and performance, and I was able to increase the break load because of the construction of the core material of the rope design, as discussed further below. I modified my earlier samples and attached and marked Exhibit NJN-11 is a copy of the test report for testing of these further samples as carried out in May and reported in June 2019. This testing confirmed that I was close to achieving a safe and reliable soft shackle. > > Subsequent work on, and development of, the requested 500-tonne soft shackle ultimately resulted in the soft shackle coupling device of AU'266. This invention came from solving a problem I encountered during manufacture, and which I resolved.[129]" (emphasis added, except with respect to the exhibits) > > "Finally, as outlined above, the soft shackle coupling device of AU'266 is a direct result of my experience, engineering knowledge, and technical expertise. While I was already exploring the development of larger soft shackle coupling devices in as early as 2011, my innovation in these products led to a novel and inventive construction method as reflected in AU'266. Josh's request for 'six 500ton soft shackles' was not the idea behind the invention of AU'266. As I discuss above at paragraphs 18 to 28, supersizing my 37-tonne soft shackle was something I had already been working on. However, as I discuss above at paragraphs 37 to 40, during the actual process of making the requested 500-tonne soft shackle, I realised that my original designs would not work effectively or safely. Therefore, as I explain above at paragraphs 45 to 52, this led me to develop a completely new and innovative way to construct soft-shackle coupling devices for very heavy load situations, which is the basis of AU'266. If I could have simply scaled up my existing concepts, there would have been no need for new engineering solutions. However, the reality is that my innovation as disclosed in AU'266 came from solving a problem that I identified and manufactured a solution.[130]" (emphasis added)

3. This evidence of Mr Nicholson also clearly demonstrates that the structural aspects concept was progressively developed after Mr Leppard contacted Mr Nicholson. This is corroborated by the contemporaneous evidence in the form of the entire message thread from JRL-4, which includes messages concerning the design, proofing, development or developments, manufacture, accreditation, and testing of the soft coupling devices between 16 January 2019 to 1 August 2019[131]. Notably the first time that soft coupling devices comprising the inventive concept as disclosed in the application clearly appear in these messages, or in JRL-4 per se for that matter, is in a subset of these messages on 30 July 2019 and 1 August 2019[132]. The photos in these messages demonstrate the structural aspects of the inventive concept, and I have reproduced two of these below (Photo 1 and Photo 2). The fact that these relate to the structural aspects of the inventive concept as disclosed is somewhat reinforced by Mr Leppard remarking on how "neat" or "neater" these devices look[133], while Mr Nicholson agrees and notes that "everything is more compact"[134], both clearly making these comments with respect to earlier soft coupling devices created during the development process. In any case the striking similarity between the soft D-shackle of Photo 2 below and that of figure 14 of the application confirms my view that the messages concerned do indeed relate to the inventive concept disclosed in the application.

1. The fact that Mr Nicholson considered he had or was developing something new and/or radical with the soft coupling devices concerned[135] additionally suggests that material development of the same post-dates contact with Mr Leppard. Similar may be said for Mr Nicholson's statements concerning how much work went into the development of the soft coupling devices[136].
2. Notably the AWS essentially argues that Mr Nicholson identified the engineering difficulties in developing soft coupling devices and in the solutions to the same after Mr Nicholson was contacted by Mr Leppard as apparent from the following[137]:

"Once Mr Nicholson had settled on the two configurations for the soft coupling device, he then needed to devise a suitable method for their construction. In approaching this task, Mr Nicholson identified the following engineering problems: > > (a) It was not possible to simply enlarge a single rope as that would create an impractical bulky device[138] and would result in points of increased tension on the outer surface of the rope and crimping on the inner surfaces of the rope, particularly around the point of coupling or pin engagement areas.[139] > > (b) It was not possible to use multiple single ropes because each rope would need to be joined together ('spliced') to form a loop, and this would both reduce the capacity of the coupling device and make it less uniform.[140] > > (c) A single piece of rope could be used by looping it on itself to create a larger rope, but it was necessary to find a way to ensure that the strands of ropes within the construct did not form a bundle and twist on each other. Twisting would result in the strands of the rope not sharing the load equally and the rope not achieving its full-strength potential.[141] Mr Nicholson also identified that the undesirable twisting of rope strands onto each other would be particularly pronounced in areas where the rope travels around a corner or edge.[142] > > (d) When a rope is bent around an object (such as a pin) there is a loss of strength due to the bending action. It was necessary to achieve a good D:d ratio to combat this. A D:d ratio refers to the relationship between the diameter of the bearing surface (D - eg the pin) and the diameter of the rope (d)). This is one of the most critical factors in maintaining a rope's strength and durability when under load.[143] > > In February 2019, Mr Nicholson manufactured prototype soft coupling devices but determined that those did not solve all of the problems identified above and the design required rethinking.[144] > > By June 2019, Mr Nicholson had devised a solution to overcome the above problems. The identification of the engineering problems identified at paragraph 35 above, together with Mr Nicholson's solution (described in further detail below), is the inventive concept embodied in AU 266.[145] It appears to be common ground that Mr Leppard did not make any contribution to such matters. > > The priority applications for AU 266 were filed on 6 June 2019 and 2 December 2019 in the name of Doyle Sails (as Mr Nicholson was an employee of Doyle Sails at the time). By agreement dated 21 September 2020, those applications were transferred to Mr Nicholson's company, Rigging Concepts Limited.[146]"

3. Bringing the above together, while Mr Nicholson's evidence purports to show that he was already working on soft coupling devices for heavy loads before he was contacted by Mr Leppard, including by upscaling his 38-tonne device, this, in my view, is implausible in the context of the evidence discussed above, and indeed in view of Mr Nicholson's evidence per se. This is particularly so noting that his own evidence shows that the issues that led to the development of the structural aspects concept were appreciated by Mr Nicholson after he turned his mind to Mr Leppard's request, while the structural aspects concept itself was developed over several months after Mr Leppard's request. In my view, Mr Nicholson's evidence appears to perhaps reflect a sort of subconscious reinterpretation of his previous work that is rather more favourable to his case than an objective assessment of the same.
4. To be clear, I do not doubt Mr Nicholson's statements concerning the difficulties in developing soft coupling devices for heavy loads. It is plausible, and I believe, that Mr Nicholson had a general understanding of the difficulties in upscaling soft coupling devices for heavy loads at the time he was contacted by Mr Leppard, as demonstrated by his development of higher capacity soft coupling devices, such as the 38 tonne dogbone discussed earlier in this decision, and that was why Mr Nicholson was able to come up with a preliminary estimate relatively quickly. But that is as far as it goes.
5. I do note that Mr Nicholson states as follows in his declaration at [11]:

"Throughout my career I have also gained extensive knowledge in shackles and connectors in all industries, including mining and marine. Even from when I was young on merchant navy ships, I was exposed to seeing tugboats and many different forms of shackles and connectors."

In some respects this evidence can be seen to lend plausibility to the contention that Mr Nicholson was already working on upscaling his previous devices at the time he was contacted by Mr Leppard. But that is as far as it goes. Even putting aside Ms McKenzie's urging that this evidence should be "treated with great caution", which I would tend to do given my reservations I have previously discussed concerning Mr Nicholson's evidence, lending plausibility does not obviate the totality of the evidence on this point as discussed above.

1. In terms of Mr Leppard providing a "commercial stimulus" this is moot in view of my understanding of the inventive concept and how Mr Leppard contributed to the same. Coming up with a specific idea, in this case the use of soft coupling devices, to overcome the known difficulties in using steel D-shackles for heavy loads is more than just a commercial stimulus, mere desiderata or a vague proposal. Mr Leppard may, at times, be confusing the object of the object of the invention for an inventive concept[147], but that does not detract from the fact that he went a step further and identified a particular solution in view of that object, even if he did not know how to put it into effect[148].
2. In terms of the structural aspects concept the preceding discussion demonstrates that Mr Nicholson was the progenitor of the same, while not being responsible for the soft coupling concept. Indeed, the evidence discussed above indicates that Mr Nicholson was responsible for all manufacturing aspects of the soft coupling devices, which is inherently plausible given Mr Nicholson's background and the very reason why Mr Leppard approached him in the first place[149]. It is inherently implausible, and there is no evidence to show, that Mr Leppard in any way contributed to the structural aspects concept. Indeed, Mr Leppard indicates that he did not provide Mr Nicholson with information as to how to make the soft coupling devices[150]. Mr Leppard's input to the design and manufacture of the soft coupling devices is no more than providing sizes or other parameters, feedback on or testing of the performance of the soft coupling devices not relevant to the inventive concept and which Mr Nicholson needed to work with or address in manufacturing the soft coupling devices[151]. Although I cannot be overly precise as to when Mr Nicholson conceived of the structural aspects concept, the preceding discussion and other evidence indicates that this was most likely between March and June 2019[152].
3. Finally, the above discussion also provides an answer to the earlier mentioned contention by Ms McKenzie about the quickness of Mr Nicholson's response evidencing his contribution as reduction to practice. As can be seen, the evidence shows that development of the structural aspects concept occurred over several months after Mr Nicholson was contacted by Mr Leppard.
4. I note that the parties have provided and/or referred to other matters in the evidence in support of their position. These include things like the effort or cost involved in developing the invention[153], the (alleged or otherwise) roles, business structures/commercial arrangements and business relations of either party[154], views on patent rights and what the parties knew or understood about the provisional applications (some aspects of which have been considered above)[155], alleged copying of websites[156], alleged inadequacies with the soft coupling devices[157] and innovation awards[158]. While of some interest, nothing in any of these matters obviates the factual conclusions reached above that demonstrate what the inventive concept was and who was responsible for that. Rather, these have more relevance as a cautionary tale about the pitfalls of collaboration in generating intellectual property without setting out a clear understanding of expectations and rights and obligations between the parties first, than in determination of entitlement in the present matter. Because of this I do not consider it necessary to delve into these matters in any detail, despite some of the oddities apparent in the same[159].

Are there any contractual or fiduciary relationships give rise to proprietary rights in the invention?

1. Neither party has raised, nor does any of the evidence show, that there are any contractual or fiduciary duties concerning rights in the invention that are relevant to the s36 request. The matter hinges entirely on the inventive concept and inventorship of the same.

1. The s36 request is successful. I am satisfied that the Requestor has established that Mr Leppard and Mr Nicholson are joint inventors with respect to the invention. It follows that Mr Leppard and the Applicant are jointly entitled to the application.

1. Costs usually follow the event. I see no reason to do otherwise here. I award costs against Rigging Concepts Limited according to Schedule 8 of the Patent Regulations 1991.

[4] Application page 1, line 33 to page 12, line 22.

[6] Application page 10, lines 12 to 19.

[7] Application page 10, line 25 to page 11, line 6.

[9] Some of the size and rating requirements appear at different locations in the "BRIEF DESCRIPTION OF THE INVENTION", sometimes with different size/ratings provided.

[10] Application page 7, line 13 to page 8, line 8.

[11] Application, page 11, lines 14 to 16.

[12] Application page 11, line 17 to page 12, line 22.

[13] Application page 12, line 22 to page 13, line 39.

[14] Application page 14, line 1 to page 23, line 14.

[15] Application page 14, lines 26 to 28.

[16] Application page 15, lines 10 to 12.

[17] Application page 15, lines 13 to 14 and page 16, lines 16 to 17.

[18] Application page 16, lines 21 to 22.

[19] Application page 16, lines 7 to 8.

[20] Application page 16, lines 10 to 13.

[21] Application page 15, line 15 to page 16, line 6.

[22] It appears that a "0" is missing and that 120,000KG is meant.

[23] Application page 16, lines 29 to 32.

[24] Application page 18, lines 10 to 20. Note there is no discussion of items 251 and 252 in the application, but these are clearly analogous to 151 and 152.

[25] Application page 18, line 23 to page 19, line 3.

[26] Application page 20, lines 5 to 11.

[27] Application page 20, lines 12 to 23.

[28] Application page 21, lines 17 to 23.

[29] Application page 20, lines 24 to 30.

[30] Application page 21, lines 30 to 34.

[31] Application page 22, lines 25 to 36.

[32] Application page 21, lines 24 to 28.

[33] Application page 23, lines 1 to 4.

[34] Application page 23, lines 5 to 6.

[35] Application page 22, lines 19 to 22.

[36] Application page 22, lines 22 to 25.

[37] Application page 22, lines 11 to 18.

[38] See Leppard1 at [12], [18] to [21] and [36]; Nicholson at [9], [17], [18] and [21] and Leppard2 at [9]. See also the AWS at [22]. Note as I understand it based on the passages cited, Mr Leppard calls the "soft D-shackle" a "pin" or a "soft shackle with a pin".

[39] See Nicholson at [18] and NJN-2; [19] and [25] and Leppard1 at [18] and [21].

[40] This essentially coincides with the use of "soft coupling device" by the parties; see the AWS at [4], [22] and the RWS at [46]. I note that the AWS appears to use the phrase as an umbrella term for all soft coupling devices such as "knot and rope" devices; see the AWS at [20].

[42] Examples include provisional applications that do not comprise any claims or where the specification describes multiple inventions but claims only one of these.

[43] Application at page 16, lines 4 to 6.

[44] See the application at page 10, lines 1 to 6; page 10, line 25 to page 11, line 10; page 15, line 28 to page 16, line 13, and page 22, lines 17 to 18.

[45] Application at page 14, lines 2 to 8 and page 15, lines 17 to 18.

[47] Application at page 1, lines 6 to 9; page 16, lines 14 to 19; page 23, lines 5 to 6

[50] See Nicholson at [19], [20], [24] and [25].

[51] See also the discussion at [64] below.

[53] See the application at page 16, lines 25 to 28; page 17, lines 26 to 28; page 19, lines 16 to 21and figures 6 and 7, 9 and 15 to 17.

[55] See, for example, Mine Site Technologies Pty Ltd v R F Industries Pty Limited [2021] APO 21 at [61].

[56] Besides the object as per the next footnote, see page 14, line 11 to page 16, line 19; page 17, lines 1 to 35; page 21, lines 3 to 23 page 22, lines 11 to 18 and figures 2A, 5 and 12 to 14.

[57] See application page 1, lines 5 to 31.

[58] See AWS at [40] and the RWS at [34], noting the Requestor identified this as the inventive concept, rather than the object per se.

[59] Page 10, lines 1 to 4; page 10, line 25 to page 11, line 10; page 15, lines29 to page 16, line 3; page 16, lines 7 to 13 and page 22, lines 17 to 18.

[61] See Nicholson at [16] and [17].

[64] Nicholson at [17], [18] and [21].

[65] Nicholson at [18], [19] and [25].

[69] Bodkin, C. (2019) Patent Law in Australia third edition, Lawbook Co at [36160]. I do not propose to go into it in detail here, but [36160] of Bodkin (at least in the fourth edition) makes it apparent that the position on the degree to which matters of inventiveness or novelty intrude into assessing inventorship is not as clear as the Requestor would suggest, and that much will depend on the facts of each case.

[70] An example of this may be seen in Mine Site Technologies Pty Ltd v R F Industries Pty Limited [2021] APO 21 at [62] to [65]. See also Bodkin, C. (2024) Patent Law in Australia fourth edition, Lawbook Co. at [36160] for similar considerations with reference to the relevant authorities.

[71] RWS at [38] and Ms McKenzie at the hearing.

[72] Pauli1 at [5], [13], [15] and [16] and Pauli2 at [4] to [10].

[73] I note Mr Leppard also provided comments on the inventiveness of Mr Nicholson's contribution; see Leppard1 at [49] to [51] and Leppard2 at [17], [24], [25], [27], [28], [49] and [50]. To the extent these are relevant to the inventive concept as I have identified it, my comments concerning inventiveness of contributions to the inventive concept are equally applicable.

[75] Pauli2 at [11]. Note Mr Pauli here refers to the "pin", the point raised by Mr Nicholson at [95] of his declaration relates to the use of such techniques in conjunction with the pin i.e. in the context of a soft coupling device for heavy loads.

[77] The RWS cites JRL-4 at page 303, however JRL-4 only has 166 pages. The message concerned appears at page 111 of JRL-4.

[78] Note that in copying this from the AWS I have airbrushed the face of Mr Leppard's daughter, as well as "crossing out" some salty language. The RWS cites JRL-4 at page 268, however as observed in the previous footnote, JRL-4 only has 166 pages. As best understood the photo concerned and associated extract (and reproduced at [41] of the RWS) appears at page 76 of JRL-4 (and is repeated on page 77). Based on the appearance of "269" on the left side of the message reproduction cited in the AWS, it appears the Applicant is working with a copy of JRL-4 with an additional numbering system not present on the copy in evidence. Where I refer to JRL-4, these are to the page numbers as per the copy in evidence.

[79] The RWS refers this being on page 284 of JRL-4, but as observed in earlier footnotes, JRL-4 only has 166 pages. The messages concerned appear at page 92 of JRL-4 (and are repeated at page 93). While not of any significance, the messages appear to have been sent on 4 June 2019 - see the message progression across pages 90 to 93 of JRL-4, noting that the message date stamps in JRL-4 are in the US format of MM/DD/YYYY.

[82] JRL-4 pages 103 to 105. Note the conversation appears to be out of order with respect to the page numbers and should be read in the sequence 104, 103 and 105, noting repetition of some messages across these pages.

[83] Leppard2 at [30]. See also [37] and [38] of Leppard2.

[88] JRL-4 page 1. See also JRL-4 at page 97, where Mr Nicholson specifically refers to potential in the mining market only being recognized in view of the fatal accident outlined in Leppard1 at [15] and [16].

[93] JRL-4 at page 3. The photo provided as part of this message is clearly a soft D-shackle but appears above the message (rather than below as indicated in the message itself).

[97] I note that the Applicant, on filing Attachment A, indicated this to be the complete email chain with the subject "500T dog bones". While the Requestor has suggested that the email from Mr Leppard is not in evidence (RWS at [61]) it would appear to comprise one or both these emails in Attachment A. As noted above, the Requestor did not file any further submissions or evidence concerning Attachment A despite having an opportunity to do so.

[98] That is 12 January 2019; see JRL-1, NJN-6 and JRL-4 at page 1.

[101] JRL-1; NJN-6 and JRL-4 at page 2.

[102] I note that AWS at [29] may not be actually asserting that Mr Leppard conceived of a dogbone per se, however this passage does refer to Mr Leppard conceiving of a dogbone, while [35] of the AWS clearly argues that the different configurations "emanated" from Mr Nicholson. See also [36] of the AWS.

[103] See Leppard1 at [12]; Nicholson at [14], [16] and [17].

[104] See Leppard1 at [12] (including the photo); NJN-3 and Nicholson at [36].

[105] See also page 18, lines 14 to 17, which describes the use of the soft D-shackle as being similar to conventional metal shackles.

[106] See the AWS at [42], which refers to a "soft coupling device".

[108] AWS at [59]. I have replaced the footnotes from the AWS with my own for this paragraph.

[109] Nicholson at [28] and NJN-4 page 9.

[110] JRL-4 page 71 (and repeated on page 72). The AWS refers to this appearing on page 84, but that is incorrect.

[111] JRL-4 page 97. The AWS refers to the passages as reproduced at [52] of the RWS. Note the messages occurred on the 4 June 2019, not the 6 April 2019 as indicated by the parties, noting that the date stamps on the messages are in the format used in the United States of MM/DD/YYYY.

[113] Noting that Mr Nicholson was a rigger and later rigging manager at Doyle Sails; see Nicholson at [8].

[114] Nicholson at [28] and NJN-4 page 9.

[116] JRL-4 page 71 (and repeated on page 72). The AWS refers to this appearing on page 84, but that is incorrect.

[118] See Nicholson at [18] to [20]. Also see Mr Eades' declaration, which is supportive of this in a general sense.

[119] See Nicholson at [18] to [20] and [29] and JRL-4 at page 1.

[120] See Nicholson at [19], [24] to [27] and [30].

[123] This is obviously an error and "38" tonne is meant.

[125] I note that the 500-tonne limit here refers to the breaking load limit of the device, not the working load limit.

[131] See JRL-4 at pages 3 to 6, 7, 9, 15 to 20, 23 to 25, 28, 37, 44, 45, 52 to 55, 68, 83, 84, 90 to 92, 94, 108, 116, 117, 123, 124, 129, 130, 132, 133, 137 to 141 and 144. See also Nicholson at [41], [42],

[132] See JRL-4 pages 134 to 144. As indicated later in this decision, it does seem that the structural aspects concept was arrived at before July 2019.

[135] See [69] of this decision above, but also JRL-4 at pages 58 and 132.

[137] AWS at [36] to [39]. Note I have replaced footnotes in the original passages from the AWS with footnotes of my own to the same material cited in the AWS.

[147] For example, at [34] of the AWS.

[148] As well as the discussion of the inventive concept above, see Leppard1 at [19] and [21].

[149] See Nicholson at [6] to [11] and Leppard1 at [22].

[151] See Leppard1 at [28]; Nicholson at [30], [64], [65], [77] and [84]; Leppard2 at [18], [20], [29], [33] and [47]; JRL-5; JRL-10; Attachment A pages 3 and 9 to 12; JRL-4 pages 17 to 20, 25, 28, 30, 37, 38, 42 to 44, 47, 52, 54, 65, 66, 68, 69, 79, 81, 82, 84 to 91, 94 to 96, 112 to 116, 123, 124, 140, 141 and 144.

[152] See Nicholson at [40] to [42] and NJN-10 and NJN-11.

[153] See Nicholson at [63], [69]; Leppard2 at [31]

[154] See Nicholson at [66], [70], [78], [80], [81], [82], [83]; Leppard1 at [15]; Leppard2 at [30] and [47].

[155] See Nicholson at [68], [71] to [73], [79]; Leppard2 at [37] to [45]

[158] Leppard2 at [35]; Nicholson at [68].

[159] For example, Mr Nicholson must have or should have known at the time the provisional applications were filed that Mr Leppard would be concerned about the fact the provisional applications did not list Mr Leppard as an inventor in view of Mr Leppard's messages on 5 June 2019 at pages 103 and 104 of JRL-4, but it appears Mr Leppard found this out himself some time afterward; see Leppard2 at [41]. While perhaps less clear cut, Mr Leppard's belief about not getting a discount on the soft coupling devices (Leppard2 at [47]) is hard to understand given the evidence shows that a discount was in fact provided (see NJN-18 and NJN-19).