Michelle May v NUVOE PTY LTD [2026] APO 2

1. On 2 September 2024, Ms Michelle May (the Requestor, Ms May) requested examination of the '404 innovation patent and requested the Commissioner to direct examination of the '203 application. Following notification of these requests, on 19 September 2024, NUVOE requested that the '404 innovation patent and the '203 application be withdrawn. The '203 application was withdrawn on the following day, as requested. The '404 innovation patent could not be withdrawn as it was already granted. The '404 innovation patent had also ceased on 8 May 2024 for non-payment of the renewal fees. The renewal fees were not paid during the grace period and NUVOE was notified of the ceasing of the '404 innovation patent on 21 November 2024.

1. On 5 December 2024, Ms May filed an application to be declared an eligible person on the '203 application under section 36. Similarly, on 8 January 2025, Ms May filed an application to be declared an eligible person on the '404 innovation patent under section 191A(2).

1. The evidence filed in relation to the matter is summarised in the table below:

1. At first glance it would seem that the Evidence in Support was filed after the Evidence in Answer and at the same time as the Evidence in Reply. This situation arose because, on 5 May 2025, three unsigned statements in the names of Michelle May, Joanne Asztalos and Elizabeth White were filed by the Requestor, which were taken as Evidence in Support. The Evidence in Reply was also filed as an unsigned statement on 19 June 2025. Following communication with the office, the statements filed by the Requestor were filed again on 26 June 2025 in declaratory form, all dated and signed by each of the declarants. I will refer to these signed declarations in the decision.

1. The matter was set to be heard on 18 November 2025, by video conference. The Requestor provided their submissions on 4 November 2025. NUVOE provided an outline of their submissions on 11 November 2025 and full submissions on 14 November 2025. While this is an unusual approach, and noted as such by the Requestor at the hearing, I will refer to NUVOE's full submissions in the decision as the Requestor was not prejudiced by having a fuller outline of submissions that would be made at the hearing ahead of time.

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 Commissioner may make a declaration under subsection (1) whether or not the patent application lapses or is withdrawn (subsection 36(2)), but a declaration must not be made without first giving the nominated person a reasonable opportunity to be heard (subsection 36(3)).

1. Following the grant of a patent, subsection 191A(2) sets out that:

The Commissioner must, on application, make a declaration as to a person's entitlement to a patent, or a share in a patent, if the Commissioner is satisfied, on the balance of probabilities, that the Register does not properly record a person's entitlement to a patent, or a share in a patent:

a) because the patent, or a share in the patent, was granted to a person who was not entitled to it; or

b) because the patent, or a share in the patent, was not granted to a person who was entitled to it; or

c) for any other reason.

1. The onus of proof for the purposes of s36 and s191A typically falls on the requestor to prove their case on entitlement on the balance of probabilities.[1] However, the evidentiary burden may shift under some circumstances, especially when knowledge of relevant facts lie particularly with one party or the other.[2]

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).

1. Thus, the invention may only be granted to the inventor or someone who derives title to the invention from the inventor. The general approach to determining who is an eligible person is summarised as:

• Identify the "inventive concept" of the invention as defined in the claims.
• Determine inventorship including the person responsible for the inventive concept and the time of conception as distinct from its verification and reduction into practice.
• Determine whether any contractual or fiduciary relationships give rise to proprietary rights in the invention.[3]

1. For identifying the inventive concept, Polwood Pty Ltd v Foxworth Pty Ltd provides that:

"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."[4] (emphasis added).

1. Further, in Vehicle Monitoring Systems Pty Ltd v SARB Management Group Pty Ltd, the Full Court provides:

"As to how the inventive concept is to be identified, he said (at [102]):

'It is not possible to be very specific about how this is to be done. But as a general rule one will start with the specific disclosure of the patent and ask whether that involves the use of information which is really that of the applicant, wholly or in part or as a joint owner. ... What one is normally looking for is "the heart" of the invention. There may be more than one "heart" but each claim is not to be considered as a separate "heart" on its own...'"[5] (emphasis added).

1. Significant in this case is the question of when the invention was conceived. In University of Western Australia v Gray (No 20) French J listed the following principles:

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

1. 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.
2. 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.
3. 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."[6]

1. However, it does not follow that anyone who contributed to the invention is an inventor.[7] A person will not establish a claim to entitlement where their claimed contribution to the inventive concept is merely positing desiderata or making a vague proposal.[8] The Full Court confirmed that an invention may reside in the conception of an idea, without the need for reduction to practice.[9] However, a distinction must be made between an initial prompt with a vague idea or pipedream as against where the person comes up with and communicates an idea consisting of all the elements in the claim, even though it is just an idea at that stage.[10]

1. The Full Court has also given consideration to co-inventorship.[11] The Full Court held that a party was not entitled to be named as an inventor when their contribution was merely in providing another example of the invention without bringing about a change to the invention such that they had "identified a development along the same line of thought which constituted or underlay the original invention."[12] Relatedly, the Full Federal Court has also found that merely providing the "commercial stimulus" for subsequent development of an invention was not the same as contributing to an inventive concept and therefore insufficient to be awarded inventorship.[13] Where a person's contribution had a material effect on the inventive concept, inventorship may be established.[14]

1. It is important to keep in mind that the inventive concept with regard to entitlement is distinct from considerations of novelty and inventive step:

"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."[15]

1. It is also worthwhile noting that considerations of entitlement under s36 and s191A are not necessarily one and the same. Under s36(1)(c), the Commissioner may make a declaration for any invention disclosed in the specification, including an invention that is not claimed. Conversely, under s191A(2), the Commissioner must make a declaration in relation to the patent. Inventions disclosed in a patent, but not forming part of its claims do not form part of the monopoly held by the patentee over the general public. However, even if the analysis was limited to determining entitlement to the invention as claimed, this does not mean that one cannot look at the specification more generally, or relevant evidence, in order to ascertain what the inventive concept as expressed in the claims may be. To consider otherwise would be contrary to the existing case law as discussed above.

1. The named inventors Mr Stuart May and Mr Michel Fathallah are an industrial design specialist and a robotics and electronics engineer, respectively.[16] Mr May was previously employed by Design + Industry, a product design and development consultancy company, and Mr Fathallah was also a contractor for the company.[17] Both Mr May and Mr Fathallah developed a desire to commercialise their own products in 2019 and eventually resigned from their jobs to start a company together to design, develop and commercialise innovative products using their complimentary skills.[18] This company would eventually become the parent company for NUVOE.

1. Ms May and Mr May met in 2000 and they were married in 2004.[19] Ms May states that, throughout their relationship, she made various contributions to ideas and thought processes for Mr May's work, be it in his capacity as an employee of a design company or as an aspiring entrepreneur looking for problems to solve with new products.[20] Mr May acknowledges this.[21] Ms May states that Mr May regularly prompted her to take note of everyday problems so he could practice coming up with product ideas instead of addressing design briefs for his employer.[22] Ms May has not been listed as an inventor on any other patent application where Mr May was a named inventor.

1. Ms May states that, sometime in 2019, the Mays had a conversation about water bottles. This conversation is central to the present matter. Ms May's recollection of the conversation is as follows:

"In or around 2019 (I cannot recall the exact date), while I was cleaning the children's Tupperware and water bottles in the kitchen, Stuart and I had a conversation to the following effect:

Michelle: 'It is impossible to properly clean all the children's bottles, they have so many and I am constantly putting them in the bin due to the mould, I am concerned about all the waste and all the mould we are all ingesting'

Stuart: 'I saw there is a company called "Larq" that has developed a 'self-cleaning bottle. It utilises the power of UV-C light hidden in the bottle and every 2 hours it eliminates bacteria that may be growing inside the bottle. It costs about $100'

Michelle: 'That sounds good, but what parent in their right mind would buy that for their kid? Kids lose things all the time. And they don't just use one bottle. Look how many bottles the children go through. Is there not a way to make the cleaning mechanism transferable? I think it would be better if the cleaning mechanism was loose from the bottle itself so that you could move it from bottle to bottle, that way it cleans multiple bottles from different manufacturers, that would be more cost effective too'

Stuart: 'Oh. I hadn't thought of that.'"[23]

1. It is Ms May's recollection that Mr May and Mr Fathallah begun discussing the merits and design of a product in accordance with her idea after their conversation.[24] Ms May stated that Mr May had made no mention of any interest in water bottles or similar products prior to their conversation, despite Mr May having discussed previous ideas with her at early stages of interest and conception.[25] However, the evidence does not establish when this conversation took place with any greater precision than sometime in 2019.

1. Mr May also recalls the conversation and appears to accept Ms May's recollection of it. However, Mr May stated that he had already been exchanging ideas with Mr Fathallah prior to the conversation and he was "seeking to test out [his] hypothesis in relation to improving upon LARQ" (a prior art product which will be explained later) when Ms May unknowingly validated his thinking.[26] Mr May continued to consult Ms May during the development process, as he had previously done with other projects.

1. The Mays separated on 1 May 2021. The '404 innovation patent and '203 application were filed on 7 May 2021 by NUVOE with Mr May and Mr Fathallah named as inventors. Ms May became aware of the '404 innovation patent and the '203 application on 8 August 2024 and learnt she was not listed as an inventor on them.

1. The descriptions for both the '404 innovation patent and the '203 application are identical and broadly relate to a portable device for processing fluids stored in containers. The focus of the invention is in relation to water purification using UV light sterilisation but the descriptions extend to any operation by which attributes of the fluid in containers are intentionally modified.[27]

1. The device is configured to be inserted into a container through the main aperture, typically the bottle opening which is sealed by a cap or lid, the device having an elongated body to reduce potential choking hazard in the event that it was to escape from the container into a user's mouth.[28] A level-setting component is present to hold the device at a predefined level inside the container.[29] The fluid processing components may include UV light for water purification or components for operations such as heating, cooling, ionisation, flavouring, agitation, filtration and the like.[30] In use, the device body is inserted into a container by dropping the device through the opening and activating the processing components to perform fluid processing operations on demand.[31]

1. The invention is illustrated in (going from left to right) figures 1A, 1B, 1C, 2C, 2D and 2E reproduced below:

1. The preferred embodiment is illustrated in the exploded view of Figure 4A below:

"In the exploded view of FIG. 4A, various modular components are illustrated. A base component 401 is moulded from BPA free plastics and configured to house a magnet 412. For example, this may be a N52UH Neodymium magnet with a rating of approximately 7kgf. A power supply component 402 is configured [sic] power the device, for example a rechargeable lithium-ion battery. A battery cover member 403 is configured to house [sic] snap lock engage with component 403, thereby to house battery. A printed circuit board (PCB) 405 is mounted to the battery cover. This PCB provides components including a processor, IMU (for shake activation), battery, press-button component (which is activated by pressing a button 410), LED lights 410 (for showing device operation/status), a terminal (e.g. for battery charging) 413, which may be a magnetic POGO pin type connector, and UV lights 406. A cover 404, moulded from BPA free plastics, is engaged with base component 401 thereby to seal the unit, such that the unit is submersible in fluid without ingress of fluid into the chamber defined inside components 401 and 404. Cover 404 also provides lenses 407, which overlie UV lights 406. These are preferably formed from materials such as high-grade quartz glass (e.g. JGS2), or moulded from High UVC transmission polymers."[32]

1. The independent claims of both the '404 innovation patent and the '203 application are identical and generally represent the invention:

1. A portable device configured to enable processing of fluid in a container, the device including:

a non-buoyant device body, which is configured to be inserted into the container;

a magnet housed in the body, wherein the magnet is configured to provide a level setting component which is configured to cause the device to stabilise at a predefined level inside the container, the predefined level being determined by positioning of a separate magnetic anchor on an external side of a sidewall of the container; and

one or more fluid processing components which are configured to perform fluid processing in respect of the fluid contained within the container, following insertion of the device body into the container;

such that, in use, the device is dropped into the fluid and sinks to the predefined level, at which point it becomes stabilised against an inside surface of the sidewall of the container via magnetic attractive forces between the magnet housed in the body and the separate magnetic anchor.

1. A device configured to process fluid in a container, the device including:

a device body, which is configured to be inserted into the container;

a level setting component provided on the device body, which is configured to cause the device to stabilise at a predefined level inside the container; and

one or more fluid processing components which are configured to perform fluid processing in respect of a fluid contained within the container, following insertion of the device body into the container.

1. The dependent claims for the '404 innovation patent and the '203 application are appended to independent claim 2 only. The '404 innovation patent has 3 dependent claims which home in on preferred embodiments while the 18 dependent claims of the '203 application elaborate on alternative embodiments as well.

1. The devices of independent claims 1 and 2, which are both configured to process fluid in a container, have a device body, a means for stabilising the device at a predefined level inside the container and one or more fluid processing components. Notably, the device of independent claim 1 is portable and has a non-buoyant body, while independent claim 2 is agnostic with respect to the device's portability, buoyancy and how it is envisioned to be used. Furthermore, the level setting component in independent claim 1 is a magnet housed in the body while it is a non-specific level setting component provided on the device body in independent claim 2. However, nothing turns on these distinctions with respect to the present matter.

1. It is clear to me that the specification, including the claims, was drafted with particular emphasis on an embodiment of a standalone unit small enough to fit through bottle openings where a magnet in the device body prevents the device from moving around inside the bottle during use. Moreover, the use of UV light to sterilise water in drink bottles is the preferred processing operation for the device.

1. The descriptions and claims extend significantly broader than the preferred embodiment. For example, the claimed devices are configured to be inserted into any container holding any fluid and carry out any process. In the absence of any definition for portability or container and embracing all manner of fluid processing, aquarium filters, purifier straws and tea infusers fall within the scope of the claims. There would be many more unintended inclusions in industrial settings and food technology within the scope of the claims as presently drafted. NUVOE themselves admitted that claim 2 "is drafted in a manner that is so broad as to lack novelty over prior art acknowledged in the Background of the specification."[33] While inventiveness does not form part of the calculus for entitlement, it is hard to see how something that the inventors acknowledge as forming part of the prior art could form part of the inventive concept.

1. The Requestor characterised the inventive concept as follows:

"The inventive concept of the Patents is a portable device that: (a) can be inserted into a fluid container; and (b) is used for processing fluids, and includes fluid processing components which are configured to perform that processing."[34]

1. NUVOE advanced three alternatives for the inventive concept, the broadest being:

"A device for processing fluid in a container, the device including:

(a) A pod-style body that can be dropped into fluid contained within a container; and

(b) The pod style body contains fluid processing components."[35]

1. NUVOE criticised the Requestor's characterisation of the inventive concept which required the device be "inserted into a fluid container". NUOVE argued that this wording could encompass lid-mounted devices from the prior art.[36] NUVOE explained that a lid-mounted UV steriliser would necessarily be inserted into a container because "otherwise the UV sterilising components would not be able to sterilise the inside of the container."[37] However, I note that the chosen language of the Requestor simply reflects the language used in the claims and specifications. In my view, the phrase "inserted into" reflects the language used in the claims and distinguishes the invention from simply placing a lid onto a container.[38]

1. NUVOE also criticised the Requestor's use of the term "a portable device" noting that, again, lid-based systems were already portable.[39] However, at the hearing, the Requestor explained that the prior art lid-based systems were not "portable" in the sense of being transferable between different types of bottles. Insofar as patent drafting generally aims to reflect the inventive concept, the Requestor's choice to mimic the language used in the specifications does not cause any confusion in my mind.

1. In contrast, NUVOE adopted the language of a "pod-style" device which was explained as a small, standalone module that is not integrally part of the bottle or lid and is dropped into the fluid in use.[40] This language owes nothing to the specifications and I am mindful not to taint my consideration of the inventive concept with a more refined product that may have been developed well after conception of the invention. Nevertheless, insofar as the embodiments shown in the figures reflect a "pod-style" design, I accept that a "pod-style" device better describes the inventive concept than the claims.

1. Despite the linguistic differences, I understand the submissions of both parties to align with one another. A device that is integrally part of the bottle or lid is not "portable" in the sense of being able to be transferable between bottles, including bottles from different manufacturers and designs. A pod relates to a small, standalone device that is not integrally part of the bottle or lid. Similarly, a device that is not integrally part of the bottle or lid will need to be placed inside the container in order for it to be able to process the fluid contained therein. Whether it is dropped into the container or more broadly inserted into the container does not alter the inventive concept in a meaningful manner.

1. Insofar as there is common ground between the parties[41] and s36 allows the Commissioner to make a declaration for any invention disclosed in the specification, I am satisfied that the inventive concept for the '203 application resides in a standalone device for processing fluids in a container where the device is to be placed into the fluid rather than being integrally formed within the container or its lid. Importantly, this is not equivalent to the idea of transferability alone, which is vague and is devoid of any clue as to whether it could in fact be done or how it might be done.[42]

1. Similarly, I note that that the international search and preliminary examination of the '203 application found that no claims were novel and inventive. As such, it could be said that the claims would have been amended during examination to include more refined features. However, in my view, a fair reading of the specification indicates that the inventive concept of the present matter does not reside in such refined features.

1. Although both parties presented a single inventive concept for both the '203 application and the '404 innovation patent, the claims of the '404 innovation patent also require a magnet housed in the device body or some other level setting component provided on the device body to be present. The addition of this feature was suggested by the Requestor as being part of the inventive concept.[43] Insofar as s191A(2) only allows the Commissioner to make a declaration in relation to the patent, this includes a level setting component as part of the standalone device in relation to the '404 innovation patent.

Was the Requestor responsible for the inventive concept?

1. For simplicity, I will consider whether Ms May was responsible for the standalone device for processing fluids in a container where the device is placed into the fluid rather than being integrally formed within the container or its lid being the inventive concept. Where necessary, I will also consider the additional feature of a level setting component.

1. By around 2019, the Requestor had recognised as a problem that "it was impossible to properly clean the children's water bottles."[44] In conversation with Ms May, Mr May shared that LARQ, a self-cleaning bottle that uses a UV-C light source hidden inside, was being sold for $100 per bottle. Ms May simply looked at the range of water bottles she was cleaning for her children and immediately expressed that "it would be better if the cleaning mechanism was loose from the bottle itself so that you could move it from bottle to bottle".[45] Ms May calls out this conversation as being the catalyst for Mr May and Mr Fathallah taking an interest in water bottles.[46] As he had previously done with other projects, Mr May continued to consult Ms May during the development process.

1. According to Ms May, when discussing the idea with friends or family, Mr May would say that it was Ms May's idea.[47] A friend of the Mays, Ms Asztalos, separately recalls having them over for dinner where Mr May spoke about a crowd funding proposal for "the bottle device".[48] Ms Asztalos also recalls Ms May being "just as informative and knowledgeable about the bottle device as [Mr May] was".[49] According to Ms Asztalos, it was her understanding that "[Ms May] was actively involved in the development of the bottle device from the outset, and that it was 'their project'."[50] Ms May also described her experience as being "a genuine collaborator in the early stages of the product's development."[51]

1. NUVOE does not dispute that Ms May contributed to the project.[52] However, they submitted that Ms May did not make a material contribution to the invention.[53] Instead, they submitted that Ms May's contribution was akin to market validation, repeating trending online feedback on the prior art products.[54] NUVOE further submitted that even without the input from Ms May, Mr May and Mr Fathallah would nevertheless have arrived at the inventive concept.[55]

1. For example, NUVOE submitted that Mr May had already begun research into LARQ prior to the conversation with Ms May, as evidenced by the fact that he mentioned it in the conversation.[56] Mr May stated that he "had been exchanging ideas and brainstorming design for a LARQ alternative with MR FATHALLAH" prior to and following the conversation with Ms May.[57] Mr May characterised the conversation as testing out his hypothesis for improving LARQ and that Ms May "(unknowingly) validated my thinking to develop a technology that was bottle-agnostic."[58]

1. Mr May stated that he had already arrived at the same "bottle agnostic" idea after reading through reviews on LARQ identifying that when the bottle body broke, customers were left with "an expensive water purification lid they couldn't use anymore"[59] before the conversation with Ms May. Mr Fathallah also observed that "water bottles represent highly personalised consumer choices, with existing products offering diverse options in size, colour, material, cap design, and accessories" and preferred the idea of developing a device that could be used with most water bottles.[60] Consequently, there were many paths to arrive at the same line of thought.

1. In some circumstances, providing an idea may be sufficient for a person being responsible for an inventive concept. However, the idea of transferability alone does not represent the inventive concept in the present case. At the time of the initial conversation, Ms May was only told that LARQ was a self-cleaning bottle and that "[i]t utilises the power of UV-C light hidden in the bottle". Prior to the conversation, Ms May was washing drink bottles by hand and was not aware of bottle cleaning technologies. The evidence does not show that Ms May put forward an idea of a standalone device for processing fluids in a container where the device is placed into the fluid rather than being integrally formed within the container or its lid. Calling out for transferability without even a general idea for what was required is simply desiderata.

1. I accept that Ms May did identify a development opportunity along the same line of thought as the named inventors. However, it is difficult to say that Ms May had formed a definite and permanent idea of the complete and operative invention in her mind[61] when she suggested a transferable cleaning mechanism during the initial conversation. Ms May also claims to have been responsible for determining that lids were not suitable mounts for a transferable cleaning mechanism and that sizing should be altered to allow for versatile compatibility.[62] However, these refinements were not expressed in the initial conversation and likely occurred well after the conception of the inventive concept. I do not consider that Ms May's contributions during the project brought about any change to the inventive concept such that the line of development was altered.[63]

1. Consequently, I must agree with NUVOE. Ms May contributed to the project, but she did not make a material contribution to the inventive concept. Without detracting from Ms May's experience, the collaboration that occurred in the present case does not rise to the level of contributing to the inventive concept.[64] The evidence shows that Mr May and Mr Fathallah would have arrived at the inventive concept through their lines of investigation and independently of Ms May's feedback.

1. For completeness, I do not consider Ms May to have contributed to the inventive concept where a level setting component forms part of the standalone device. There is no evidence that suggests Ms May was responsible for providing the idea of a level setting component. Instead, the evidence shows that Mr May devised the idea and convinced Mr Fathallah that a magnet-based stabiliser would overcome issues faced by a loose device, such as choking.

Was there any contractual or fiduciary relationships?

1. Most declarants recall late 2019 being the early stages of conception and ideation. During this time Mr May and Mr Fathallah were operating privately, and Ms May was married to Mr May. None of the declarants suggest there was any contractual or fiduciary relationship between Ms May and Mr May, Mr Fathallah or any other entity in relation to the development of any product.

1. During the development of the invention, Mr May and Mr Fathallah set up a partnership and NUVOE as a subsidiary company thereto.[65] Insofar as the '404 innovation patent and the '203 application were filed in the name of NUVOE, I assume appropriate assignments were in place such that NUVOE is entitled to the '404 innovation patent and the '203 application through its relationship with Mr May and Mr Fathallah.

1. There is no evidence to suggest that Ms May could derive any entitlement from NUVOE, Mr May or Mr Fathallah.

1. I do not consider Ms May was responsible for the inventive concept of a standalone device for processing fluids in a container where the device is placed into the fluid and is not integrally formed within the container or its lid, with or without a level-setting component. Nor are there any contractual or fiduciary duties that would give rise to entitlement to Ms May.

1. Consequently, Ms May is not an eligible person within the meaning of s36 in relation to the '203 application and Ms May was not entitled to the '404 innovation patent pursuant to s191A(2).

1. The Commissioner has the power under s210 of the Act to award costs in proceeding before him. Costs are generally awarded in accordance with those elements of parts 1 and 2 of Schedule 8 of the Regulations that are applicable.

1. Neither party made submissions as to costs. The normal approach is that costs should follow the event. I see no sufficient reason to depart from this approach. The requests have been unsuccessful. Therefore, I award costs in accordance with Schedule 8 against the Requestor, Michelle May.

[1] Woodside Energy Limited v Richard John Moore [2018] APO 82 at [37]- [39].

[2] Dunlop Holdings Limited's Application [1979] RPC 523 at 542 to 544.

[3] University of Western Australia v Gray [2009] FCAFC 116 at [253]-[256].

[4] Polwood Pty Ltd v Foxworth Pty Ltd [2008] FCAFC 9 at [60].

[5] Vehicle Monitoring Systems Pty Ltd v SARB Management Group Pty Ltd [2021] FCAFC 224 at [63].

[6] University of Western Australia v Gray (No 20) [2008] FCA 498 at [1426].

[7] Polwood Pty Ltd v Foxworth Pty Ltd [2008] FCAFC 9 at [70].

[8] Polwood Pty Ltd v Foxworth Pty Ltd [2008] FCAFC 9 at [71].

[9] Vehicle Monitoring Systems Pty Ltd v SARB Management Group Pty Ltd [2021] FCAFC 224 at [73]- [75].

[10] University of Western Australia v Gray (No 20) [2008] FCA 498 at [1433].

[11] Kafataris v Davis [2016] FCAFC 134.

[12] Kafataris v Davis [2016] FCAFC 134 at [31].

[13] Vehicle Monitoring Systems Pty Ltd v SARB Management Group Pty Ltd [2021] FCAFC 224 at [178].

[14] Polwood Pty Ltd v Foxworth Pty Ltd [2008] FCAFC 9 at [34].

[15] Vehicle Monitoring Systems Pty Ltd v SARB Management Group Pty Ltd [2021] FCAFC 224 at [104].

[16] S.May at [3] and Fathallah at [3].

[18] S.May at [8] and Fathallah at [7].

[23] M.May 1 at [12]. (text stylisation in original)

[38] Requestor submissions at [19] and [31].

[41] Requestor submissions at [30] and NUVOE submissions at [13.15].

[42] University of Western Australia v Gray (No 20) [2008] FCA 498 at [1433].

[44] Requestor submissions at [48](a).

[47] M.May 1 at [16] and M.May 2 at [10].

[61] University of Western Australia v Gray (No 20) [2008] FCA 498 at [1426].

[63] Kafataris v Davis [2016] FCAFC 134 at [31].

[64] Vehicle Monitoring Systems Pty Ltd v SARB Management Group Pty Ltd [2021] FCAFC 224 at [178].