Provectus Algae Pty Ltd v v2food Pty Ltd [2026] APO 1

1. Australian patent application 2021247417 ("the application") is the national phase entry of international application PCT/AU2021/050296 in the name of v2food Pty Ltd ("the Applicant") with an international filing date of 31 March 2021, and claims priority to Australian provisional patent application 2020900989 with a priority date of 31 March 2020. It entered the Australian national phase on 19 October 2022. Expedited examination was requested on 31 October 2022 and notwithstanding three separate tranches of documents brought to the Commissioner's attention under the provisions of s27 of the Act,[1] and two adverse examination reports, the application proceeded to acceptance which was advertised on 24 August 2023.
2. A notice of opposition under s59 was filed on 24 November 2023 by Provectus Algae Pty Ltd ("the Opponent"). The Statement of Grounds and Particulars ("SG&P"), filed on 29 February 2024 listed grounds of opposition as lack of entitlement, lack of manner of manufacture, lack of novelty, lack of inventive step, lack of utility, lack of clarity, lack of clear enough and complete disclosure, lack of best method and lack of support. The SG&P also contested the entitlement to priority. The SG&P was accompanied by no fewer than 49 (forty-nine) mentioned documents, referred to herein as D1-D49. The SG&P was twice amended before the hearing to reflect new evidence and amendments to the claims, although the pressed grounds did not change. The grounds of lack of entitlement, lack of manner of manufacture and lack of utility were not pressed at the hearing.[2]
3. This leaves the following grounds for determination:
   • Novelty
   • Inventive Step
   • Clarity
   • Best Method
   • Clear and complete enough disclosure
   • Support

4. The documents asserted in the SG&P as being relevant to novelty are as follows:

Published 4 February 2021, between the claimed priority date and the international filing date.

Part of the prior art base for novelty only if priority is validly claimed.

Part of the prior art base for novelty and inventive step if priority is invalid.

Zotter et al. "Protein from red seaweeds - Process innovation for sustainable, ocean-based plant protein" ("D2")

A poster that was publicly presented at GFI's Good Food Conference in September 2019.

Part of the prior art base for novelty and inventive step.

Orta-Ramirez "R-phycoerythrin as a fluorescent time-temperature integrator for monitoring thermal processing of beef products" ("D3")

Part of the prior art base for novelty and inventive step.

Published after the international filing date, and with an earliest priority claim of 26 August 2020.

Part of the prior art base for novelty only with respect to matters disclosed in its priority document 63/070,346 ("D20") if priority is invalid.

Published after the international filing date, and with an earliest priority claim of 31 August 2020.

Part of the prior art base for novelty only with respect to matters disclosed in its priority document 63/072,287 ("D21") if priority is invalid.

1. The SG&P raised a broad range of documents, and combinations of documents, as being relevant to inventive step. In their summary of submissions, the Opponent narrowed these grounds and pressed lack of inventive step based on common general knowledge combined with any of the following documents.
   • D1 (only for claims where priority is invalid)
   • D2
   • D4
   • WO2008083117 ("D7")
   • US20150305390 ("D8")
2. In the oral hearing itself the Opponent further advanced a line of argument to the effect that the claimed invention was obvious in view of common general knowledge. This will be discussed in more detail later in the decision.
3. The Applicant filed an amendment to the accepted specification under s104 on 26 June 2024. These amendments were unopposed and were allowed on 18 December 2024. This amended specification forms the basis of the present decision.
4. The evidence tendered in this proceeding is as follows:

Declaration of Narcis Ferrer Ledo ("Ferrer Ledo")

Second declaration of Phillipa Davis ("Davis #2")

1. The present application is governed by the Act as amended by the Intellectual Property Laws Amendment (Raising the Bar) Act 2012 as the application was filed after 15 April 2013. Thus, the standard of proof that applies in the present case is the balance of probabilities. If I am satisfied that a ground of opposition exists then I can refuse the application, but not before giving the Applicant a reasonable opportunity to amend if appropriate.

1. The task of construing the specification and claims is one that should be approached through the eyes of the skilled worker and with reference to the specification as a whole; although evidence of what the experts understand the claims to mean can be useful for this task, the task is ultimately a legal on for the Commissioner's delegate and it must be done above all with a generous measure of common sense.[3]

1. It is well established that many of the issues in an opposition are answered by reference to the person skilled in the art:

"He is the person to whom the patent is addressed and who must construe it. He is the person whose knowledge will determine whether a patent is novel. He is the person who will judge whether a patent is obvious."[4]

2. The hypothetical skilled person works in the field with which the invention is connected and is a non-inventive person or team likely to have a practical interest in the subject matter of the invention.[5] However it must be borne in mind that the person skilled in the art is not a real person but an artificial construct, a "pale shadow"[6] that is nonetheless useful as a tool of analysis.
3. The Applicant pointed out, relevantly, that the skilled addressee or team for the purpose of determining novelty and inventive step may well be different to the skilled addressee for the purpose of construing the specification and determining support and sufficiency requirements. This is because the latter is influenced by the disclosure of the specification, whereas the former is not. The Applicant submitted that this is particularly relevant when the specification marries the skills of two different arts.[7]
4. I am convinced by this submission. As will become evident from the discussion of the specification, the invention involves applying an algal derived protein as a food colourant. In view of this marrying of arts, the ultimate addressee of the specification would have skill in both algal protein biochemistry and food technology. However, for the purpose of addressing novelty and inventive step, the notional skilled worker is solely in the field of food technology, in particular the field of meat mimetics.
5. This seems to be the appropriate point to discuss the relevance of the evidence of the expert witnesses to these fields.

1. Mr Spanton is the CEO of the Opponent. His evidence, along with the evidence of Mr Hazell, related to the validity of entitlement to the patent, which was not pressed during the hearing, and consequently does not need to be considered further.
2. Ms Zotter is the former president of Trophic LLC[8] (now Umaro Foods). Her declaration relates to the commercial activities of Trophic in developing plant-based meat alternatives in 2018-2019, including receiving a grant from the Good Food Institute[9] and filing a provisional US patent application which later was published as international application WO2021/022082. Ms Zotter was one of the named inventors.[10] In my view, although Ms Zotter worked as a food technologist in the relevant field, her alleged inventive activity reduces the weight of her evidence when seeking to establish what an uninventive "person skilled in the art" would have known and done. Her evidence mainly relates to the commercial activities of her company which "chose to focus on red seaweed for use in plant-based meat alternatives as it is high in a protein that has a vibrant red colour".[11] However this is not of much assistance in drawing inferences as to what was "widely known and accepted without question" in the field.
3. Dr Bailey has over 20 years of experience relating to photosynthetic algae.[12] He was asked by the Opponent to comment on the characterises of phycoerythrin from microalgae, that would make them suitable for use in meat substitutes.[13] His declaration includes a review of prior art documents related to the characteristics and properties of phycobiliproteins[14] followed by detailed commentary on the present application including his opinion on why the opposed application is not new or inventive. Although Dr Bailey is qualified to provide evidence relating to common general knowledge in the field of photosynthetic algae, this is only relevant to the ability of the skilled addressee to perform the invention in the "married fields" mentioned above, and I do not consider it has particular relevance to the knowledge of the skilled worker in the field of meat mimetics. I also note that the task of construing patent documents and evaluating novelty and inventive step is one for the delegate rather than for experts, however well briefed.
4. Ms Davis has been employed by the Opponent since 2022 in the field of quality and regulatory affairs in meat mimetics incorporating phycoerythrin.[15] Prior to that she worked in regulatory compliance in the field of agronomy.[16] Her declaration consists principally of a literature review that she carried out around 2022 for the purposes of preparing and testing meat substitutes containing phycoerythrin.[17] Consequently, Ms Davis does not have direct experience relating to the knowledge of the skilled worker in the field of meat mimetics as of the priority date of the application, and her knowledge of the field is necessarily influenced by the phycoerythrin focus of her project which comes from after the priority date. Nevertheless I can use the literature evidence tendered in her declaration to make my own inferences as to the general knowledge in the field of meat mimetics before the priority date.
5. Mr Sanzo has 45 years of experience in food technology, in particular food colouring.[18] Mr Sanzo declared he had had one brief commercial interaction with the Applicant in 2023 but was otherwise independent.[19] Most of his experience has been in the Fast Moving Consumer Goods sector which he characterised as being of short shelf life and including snacks, beverages, ice creams and plant-based milks and fruit products.[20] I note that this list seems to be confined to ready-to-consume foods and does not seem to include meat mimetics. Mr Sanzo was asked to give evidence in response to a hypothetical problem as to what a food technologist would have done to solve the problem of finding colouring agents for meat replica products that behave in a visual manner similar to the colour change observed when animal meat is cooked.[21] I can take Mr Sanzo's evidence into account in inferring what the skilled worker in the field of meat mimetics would have known and done, bearing in mind that he does not appear to have any direct experience in that specific field before the priority date. [22]
6. I also note that Mr Sanzo mentioned, when faced with the hypothetical problem of providing food colouring agents for meat mimetics, that he would not consult scientific or patent literature,[23] but instead go directly to established suppliers because "With short innovation cycles, time is of the essence".[24] However I consider these commercial considerations are not germane to the construct of the person skilled in the art, who is only an "avatar" or "pale shadow". I understand the person skilled in the art is uninventive but diligent and not affected by commercial pressures.[25] Importantly, while the person skilled in the art is uninventive they must be assumed to be open to making some changes and trying new things - without this the concept of inventive step would be moot.
7. Therefore to the extent that Mr Sanzo's evidence is that he would only go as far as to consult product information forms from existing commercial manufacturers, this strikes me as a mindset that is inconsistent with that of the notional, diligent, avatar.
8. Both the Ferrer and de Vree declarations provide commentary on the application and cited prior art documents from the perspective of algal biotechnologists.
9. Dr Ferrer Ledo is the Chief Scientific Officer of Algreen B.V. in the Netherlands. He has more than a decade of experience in algae biochemistry.[26] Much like Dr Bailey, his evidence is more relevant to the addressee of the specification (which is relevant for enablement requirements), rather than the person skilled in the art of meat mimetics (which is the field for the assessment of inventive step).
10. Similar considerations apply to Dr de Vree, who has around a decade of experience in bioprocess engineering of microalgae with emphasis on mass cultivation and harvesting for oil feedstock and aquafeed applications.[27]
11. Dr Ha is currently the Science & Technology Manager at the Applicant, a position he has held since 2022. [28] Prior to that, he lectured in, inter alia, meat and meat products in the course of Master of Food Science at the University of Melbourne, and was a convenor of the Future Food Hallmark Research Initiative which had applications in meat mimetics.[29] Dr Ha's evidence primarily relates to the physicochemical basis of colour with particular reference to the chromophores of haemoglobin, myoglobin and phycoerythrin.
12. Dr Ha appears to me to be the best placed of the experts to provide evidence relating to the skilled worker in the field of meat mimetics. Mr Sanzo, although well placed to give evidence in the field of processed foods, does not appear to have much direct experience with meat mimetics per se.

1. The opposed application consists of forty-three (43) pages of description, seven pages of figures and twenty-four (24) claims.
2. The application is entitled "Food Colouring Agents". More particularly, the application relates to agents for imparting meat like colour to meat mimetic ("fake meat") products.
3. The specification sets out the "Field" of the invention (p. 1) as relating to food colouring agents, in particular phycobiliproteins such as phycoerythrin, for use in meat mimetic and replacement foods. I note that there is a reference to the ability of these compounds to act as metal ion carriers as well, which is consistent with the disclosure of some of the experimental examples, but none of the claims are directed to this aspect.
4. The "Background" section set out the need to create plant-based alternatives to meat products; noting that many consumers prefer that a meat replacement product reproduces the "meat experience" in terms of appearance, flavour and texture. In particular, the specification highlights the desire to reproduce the appearance of meat in its raw and cooked state. Naturally occurring haemoglobin and myoglobin provide raw meat with a pink or red colour, which changes to white, brown and/or grey after cooking, due to the denaturation of the proteins. The specification indicates that this visual indicator is an aid to guide cooking time and can also be an indicator of food safety related heat treatment.
5. The specification indicates that existing plant-based colouring agents derived from beetroot or radish do not change colour after cooking.
6. The specification then provides a discussion of the absorption proteins of phycobiliproteins, noting that the scientific literature is replete with their characterization (p. 5 line 1). Notably, there are four types of phycoerythrins listed in Table 1 with absorption maxima between 545 and 560 nm, although a discussion at p. 6 indicates that variation in chromophores can affect the spectroscopic characteristics of phycoerythrins (nevertheless this is based on the extensive characterization already carried out).
7. The specification then discusses that the fluorescence properties of phycobiliproteins have led to their use in biotechnology; and notes that Spirulina phycocyanin had been used as a blue colouring agent, and that Porphyridium cruentum phycoerythrins had been used as red colouring agents in desserts and dairy products.
8. The specification then proceeds to a "Summary" of the invention, in which it states that the inventors have surprisingly found that phycoerythrin, when present in a food to be cooked such as a meat mimetic, can in fact afford a visual colour change similar to that which occurs when animal meat is cooked. The rest of the Summary section sets out various embodiments of the invention in broad terms which substantially mirror the language found in the claims.
9. After a set of figure legends, the specification provides some definitions. Relevantly, it defines "meat mimetic" as a non-animal protein-containing food that mimics, resembles or performs in a manner similar to an animal-derived meat product in any one or more physical or sensory factors. In particular, it defines "colour change" at p. 12 as a visual reduction in pink/redness and appearance of white, brown or grey, reflecting denaturation, and defines "pink" or "red" as colours visually similar to corresponding animal meat.
10. This section provides a fairly general description of different ways and embodiments for carrying out the invention, such as various algal species that the phycoerythrin can be extracted from, and techniques for extraction. Relevantly, however, there is relatively little description on how to incorporate the phycoerythrin into the mimetic food product beyond simply "added directly to the ingredients of the food product, such as a minced or ground meat mimetic/replacement mixture" (p. 17 first paragraph).
11. The specification then concludes with a number of illustrative examples which, in my opinion, effectively illustrate the inventors' development process.
12. There is a "Preliminary Evaluation" of the ability of commercially available haemoglobin and myoglobin to mimic the colour change upon cooking in meat mimetics. Both were added at 0.2% w/w to a plant-based burger formulation, and provided a pink colour when raw and a grilled appearance when cooked, without affecting flavour.
13. Example 1 provides a protocol for extracting phycoerythrin from wild red seaweed, and thermal characterization showing a colour transition at 72°C.
14. Example 2 provides a manufacturing method for scalable extraction of food-grade phycoerythrin, from 25g of wild red seaweed using food grade NaCl extraction buffer, blending, sonication, separation and freeze-drying to powder.
15. This freeze-dried powder was then used in a comparative experiment to determine the effect of various colouring agents on mini burgers. In this experiment various colouring agents were mixed with the same burger formulation as before. A 0.3% beetroot dye provided a red colour which did not change upon cooking. A 0.3 % phycoerythrin dye provided a pink colour to the raw product and demonstrated a colour change when cooked (to an internal temperature of 80-85°C). A 1.1% hemoglobin dye (notably, 5.5x greater than in the preliminary experiment) provided a dark brown appearance when raw and nearly black when cooked. A 0.22% ferritin formulation was identical to the plant-based control.
16. This experiment appears to demonstrate that phycoerythrin is at least as effective as haemoglobin in mimicking the colour behaviour of meat in a burger formulation, and is superior to beetroot extract in terms of colour change.
17. Example 3 provides an upscaled method for extracting phycoerythrin from 1 kg of wild red seaweed, similar to Example 2.
18. Example 4 provides a comparison of the absorption characteristics of phycoerythrin extracted from wild seaweed compared to the microalgal Porphyridium purpureum and two other species. All phycoerythrin demonstrated loss of colour after heating to 95°C.
19. Example 5 sets out a scalable extraction method for producing food-grade phycoerythrin from the microalga Rhodomonas salina using water as the extraction solution.
20. Example 6 sets out a method for characterising the absorbance spectra of phycoerythrin solutions between 20 and 95°C. This refers to testing the extract from Example 6 (i.e. itself). It seems likely that this refers to the Rhodomonas phycoerythrin from Example 5.
21. Example 7 sets out the formulation of the extract from Example 6 [sic - presumably Example 5] into white (3%) and red (10%) meat mimetic burgers. Both burger formulations observed a colour change between 68 to 70 °C. I note that this example implies that the pigment was mixed together with the other components of the burger formulation (protein, thickeners, oils, water, colour, flavours) - no further information is provided on how the patties are formulated.
22. Example 8 is similar to Example 7 but uses whole Rhodomonas biomass rather than purified phycoerythrin. It demonstrated similar effects in terms of colour change, along with "slightly enhanced umami flavour".
23. Examples 9-10 relate to iron binding by seaweed phycoerythrin. As mentioned above, this application is not claimed so these examples can be passed over.
24. Example 11 describes a method for quantification of phycoerythrin in biomass, adapted from a 2015 textbook.
25. Taken together, I understand that these examples demonstrate some relatively straightforward methods of extracting phycoerythrin from wild seaweed or microalgae, and that this extract can mimic the colour transition of meat without any adverse flavour when mixed with a plant-based mince formulation, and that whole Rhodomonas microalgae can be used equivalently.
26. According to the specification, although Porphyridium phycoerythrins had been used in food colouring applications, the inventors were the first to realise that they could be particularly useful for meat mimetics.

1. The amended specification ends with 24 claims, all of which depend directly or indirectly from claim 1 (line breaks added for clarity):

1. A meat mimetic food product comprising one or more phycobiliproteins comprising at least phycoerythrin

in an amount sufficient to visually confer a pink or red colour to the food product,

and which affords a visual colour change upon cooking of the food product to an internal temperature in the range of about 50-95°C,

wherein the one or more phycobiliproteins comprising at least phycoerythrin are extracted from a Porphyridium sp and/or a Rhodomonas sp.

1. The dependent claims further specify different aspects of the food product or the phycoerythrin, notably a narrower cooking temperature range of 60-85 °C (claim 2), the type, source and amount of the phycoerythrins (claims 3-10: specifying that the phycoerythrin can be of the known R-, C-, B or b- subtypes, can be more than 50% of the total phycobiliproteins, and can come from either Porphyridium or Rhodomonas extracts), absorbance spectral properties of the phycoerythrins (claims 11-14: setting out more characteristics of the Porphyridium and Rhodomonas phycoerythrins used), and other aspects of the food formulation (claims 15-24: setting out the amount of phycoerythrin as being 0.1-15%, the presence of other colouring agents, other plant based protein components, the type of meat being mimicked, and the use of the product in cooking).
2. The claims are therefore directed to food products, (implicitly for human consumption because only humans are interested in the performance characteristics of meat mimetics) which contain a phycoerythrin extracted from Porphyridium and/or Rhodomonas.
3. The claim requires there is sufficient phycoerythrin to afford a red or pink colour to the food product.
4. The term "and which affords a visual colour change..." clearly refers to the phycoerythrin rather than the food product itself, since it is the phycoerythrin which is providing the colour. The visual colour change needs to occur in the range of 50-95 °C, which I understand to mean that the phycoerythrin must denature somewhere in this range. It is possible that different phycoerythrins may have different denaturation temperatures, so this serves to exclude Porphyridium and/or Rhodomonas phycoerythrins which do not denature and change colour within this range.
5. My understanding, therefore, of the invention as claimed is the application of suitable phycoerythrins from Porphyridium and/or Rhodomonas to confer a cooking-dependent colour change to meat mimetic products.

1. The priority date of the claims is of importance to this Opposition, because if priority is not valid there would be a number of consequences - some patent documents (D5 and D6) would become part of the prior art base for novelty because their priority date is earlier than the filing date (though after the claimed priority date) and document D1 would become part of the prior art for inventive step, because it was published in that intervening period as well.
2. The statutory basis for priority comes from s43(2A) and reg 3.12(4), which give rise to the requirement that in order to provide priority, an earlier document must "disclose[s] the invention in a manner that is clear enough, and complete enough, for the invention to be performed by a person skilled in the relevant art".
3. As pointed out by both parties in their submissions, this test has been interpreted by Nicholas J in ToolGen[30] as follows:
   • It is the same as the test for sufficiency of disclosure (due to concordance of wording)[31]
   • There is also a requirement that the priority document disclose (but not necessarily claim) the invention[32]
   • The disclosure can be an implicit or explicit one, but does not extend to what is merely made obvious.[33] While acknowledging that this distinction can be difficult to draw, Nicholas J clarified that "is not sufficient for the priority document to provide a starting point from which the person skilled in the art may transition from one invention to another by the use of the common general knowledge"[34]
4. I take from this that the test for priority can take into account implicit disclosure, but that this implicit disclosure is limited to the same invention as disclosed in the priority document. There is no indication that the test for priority is as strict as, for example, allowability of amendments under s102(1).
5. This analysis does beg the question of what the same invention is. s43(3) and (4) allow for different forms of an invention to have different priority dates. Given the exhortation in s40(4) for the claims as a whole to relate to one invention only, I take this to mean that different embodiments of the same inventive concept can have different priority dates and this is presumably what Nicholas J referred to by "transitioning from one invention [with one priority date] to another [with a different priority date]".
6. However in the present case, I do not see any significant transitioning from the invention disclosed in the priority document to the current claims.
7. The Opponent's case for lack of priority entitlement in their written submissions the proposition that priority should not be awarded for Porphyridium or Rhodomonas phycoerythrin because there is no disclosure in the priority document of any inventive advantage.[35] In doing so the Opponent sought to draw an analogy to the concept of selection inventions and amendment allowability.[36] However I am not aware of any statutory correspondence between inventive step and/or amendment allowability with the priority requirements, which as mentioned above are simply disclosure requirements.
8. I agree with the Opponent's characterisation of the experimental examples of the priority document - they only disclose extraction and characterisation of phycoerythrin from red seaweed harvested on the Bellarine Peninsula, including preparation of mini burgers that showed a colour change upon cooking.
9. Nevertheless the priority document does disclose, at p. 9 4th paragraph, that the phycobiliprotein can be obtained from, inter alia, Porphyridium or Rhodomonas. I am happy that this is an explicit disclosure of these sources.
10. Also discussed in the oral hearing and mentioned in the Opponents Submissions at 349 was the transition temperature range of 50-95 °C in claim 1, which is not explicitly mentioned in the priority document. An internal temperature range of 60-85 °C is disclosed at p. 13 second paragraph. The Applicant pointed to Figure 4 of the priority application as showing loss of colour in the range of 50 to 95 °C. I agree with the Applicant that this is an implicit disclosure of that range, and in any event I do not think that this difference is "transitioning from one invention to another" in the sense used by Nicholas J.
11. The challenge to priority has not been made out. Consequently D1 is only part of the prior art base for novelty, and D5 and D6 are not part of the prior art base at all.

1. Having determined that the priority date is validly claimed, the citations available as part of the prior art base for novelty are D1, D2 and D4. D1 and D4 are patent documents, whereas D2 is a poster published in 2019[37] by the authors of D1. D1 is both filed and published after the priority date, and thus is part of the prior art base only to the extent of notional valid claims (a so-called "whole of contents" citation) that could be made based on its own priority document which is provided as the third exhibit to the Zotter declaration (also provided in the list of mentioned documents as D19).
2. D1 (WO 2021/022082) is directed to the use of seaweed-based food product that is capable of providing the taste, consistency and colour of a meat-like product both when raw and when cooked (D1, abstract). D19, while lacking an abstract, is directed to the same subject matter.
3. D2 (Zotter, et al, "PROTEIN FROM RED SEAWEEDS: Process innovation for sustainable, ocean-based plant protein") is a one-page poster which relates to methods of extracting phycoerythrin from red algae, and discloses that red seaweeds have meat-like qualities, and that protein colours can be manipulated with pH and temperature.
4. D4 (US 2018/0310599) is directed to food products that have structures, textures and other properties similar to animal meat (D4, abstract) - i.e. meat mimetics. D4 does mention Porphyridium species by name at paragraph [0260]. However this paragraph does not explicitly mention phycoerythrin.
5. The Opponent conceded that none of these documents explicitly disclose making a meat mimetic with phycoerythrin derived from Porphyridium or Rhodomonas but argued that each of these documents disclose phycobiliproteins from seaweed in general and this constitutes an implicit disclosure of Porphyridium or Rhodomonas phycoerythrin.
6. In the case of D4, the Opponent submitted that the combination of paragraphs [0025], [0035], [0257], [0258], and [0260] implicitly discloses a meat mimetic food product comprising Porphyridium phycoerythrin.[38]
7. It is well established that the test for novelty is that of reverse infringement, and the standard for establishing reverse infringement is a direction that is clear and unmistakeable. This is reflected in the well worn trope that anticipation requires the accuracy of a sniper as opposed to the blast of a shotgun.[39] A more formal statement of this is found in General Tire,[40]

"If, on the other hand, the prior publication contains a direction which is capable of being carried out in a manner which would infringe the patentee's claim, but would be at least as likely to be carried out in a way which would not do so, the patentee's claim will not have been anticipated although it may fail on the ground of obviousness. To anticipate the patentee's claim the prior publication must contain clear and unmistakeable directions to do what the patentee claims to have invented" (Emphases added).

8. The Opponent cited a number of authorities to support the principle that a less than literal disclosure can act as an anticipation, going as far back as the canonical Hill v Evans[41] in 1862. However the Opponent did acknowledge that implicit disclosures are limited to things that are clear and unambiguous consequences of what are explicitly mentioned.[42]
9. Now it is not in dispute that Porphyridium and Rhodomonas are members of the class of red seaweeds. The question is whether disclosure of the class constitutes a clear and unmistakeable anticipation of particular members of the class.
10. With respect to D1 and D2 I find that disclosure of the class of red seaweeds does not clearly and unmistakably direct the addressee to using a phycoerythrin derived from Porphyridium or Rhodomonas. Even though the addressee might have been aware that those species were members of the class, the general direction is at least as likely to have been carried out with other red seaweeds, noting that there are hundreds of genera within the Rodophyta alone.[43]
11. With respect to D4 I am likewise not convinced that the combination of paragraphs [0025], [0035], [0257], [0258], and [0260] constitutes a clear and unmistakeable direction that could not be carried out in another way. This is because each of these paragraphs comprise quite long lists of options. Paragraph [0025] gives a long list of agents that includes, inter alia, colouring agents but does not explicitly mention colour change. Paragraph [0035] gives a long list of "colouring agents" which mentions "red seaweed juice" but does not explicitly mention phycoerythrin. Paragraphs [0257] and [0258] mention that "protein, lipid, carbohydrate, or other ingredients" ... can be derived from a variety of sources of which algae is one. Paragraph [0260] mentions a long list of "suitable algae" including, inter alia, Porphyridium. Although using red seaweed juice from Porphyridium is one possible combination that can be taken from these paragraphs, it is only one out of myriads. It follows that this is not a "clear and unmistakeable direction" in the sense of General Tire.
12. It follows that the ground of lack of novelty cannot be made out.

1. The core of the lack of inventive step argument pressed by the Opponent at the oral hearing seemed to be that the choice of Porphyridium or Rhodomonas phycoerythrin to provide a colour change to meat mimetics was an obvious solution to the problem of providing a meat mimetic with a suitable indicator for colour change upon cooking, based on the known absorbance and denaturation properties of these proteins. In essence, the Opponent asserted that the route taken by the inventors, as disclosed in the specification, was an obvious one.
2. Now the onus to establish this lies with the Opponent. The Applicant's role in this process is rebut - it is not up to the Applicant to prove the presence of the inventive step.
3. I note that the germ of the Opponent's argument summarised above does not particularly reflect the lines of argument presented in their written submissions, which were based on the combination of either D2, D4, D7 or D8 (all of which disclose, at best, the use of seaweed proteins as food colouring agents) with, alternatively, the common general knowledge or a range of references including the following
   • D17: Marraskuranto, E et al. (2019). Color Stability of Phycoerythrin Crude Extract (PECE) from Rhodomonas Salina Toward Physicochemical Factors. Squalen Bulletin of Marine and Fisheries Postharvestand Biotechnology. 14. 21. DOI: 10.15578/squalen.v14i1.379
   • D18: Munier M, et al. (2014) Physicochemical factors affecting the stability of two pigments: R-phycoerythrin of Grateloupia turuturu and B-phycoerythrin of Porphyridium cruentum. Food Chemistry. 150:400-407. DOI: 10.1016/j.foodchem.2013.10.113.
   • D44: Zhao, J., & Brand, J. (1989). Specific bleaching of phycobiliproteins from cyanobacteria and red algae at high temperature in vivo. Archives of Microbiology, 152(5), 447-452.
   • D39: Benjamin M. Bohrer, (2019) An investigation of the formulation and nutritional composition of modern meat analogue products, Food Science and Human Wellness, Volume 8, Issue 4, Pages 320-329, ISSN 2213-4530
4. Each of D17, D18 and D44 can be broadly characterised as relating to physicochemical characterisation of Porphyridium or Rhodomonas phycoerythrin, and disclose inter alia that these phycoerythrins lose absorption and emission in the 500-600 nm region in vitro around 60-80 °C.[44] D39 is a review article on meat mimetics setting out the formulation and nutritional values of commercially available meat analogous as of 2019, as well as their ability to meet customer expectations in terms of meat-like appearance.
5. The Opponent's arguments in their written submissions seem to supplement the "but may lack an inventive step" caveat in General Tire by asserting that it was not inventive for the reader of D2 or D4 (or further, D7 or D8) to select phycoerythrin derived from Porphyridium or Rhodomonas. (D1, by virtue of its publication date, is not part of the prior art base for determining inventive step).
6. Despite the length of the Opponent's written submissions, the "using Porphyridium or Rhodomonas phycoerythrin is obvious because of its suitable properties" line advanced in the oral submissions had not been clearly presented prior to the hearing. I therefore provided the Applicant, by a letter dated 20 June 2025, an opportunity to file supplementary submissions addressing the case for obviousness over D17 or D18 alone,[45] in view of common general knowledge which I put to the Applicant that D39 was representative of.
7. The Applicant provided supplementary submissions on 18 July 2025 addressing this issue. The Applicant's rebuttals invoked the level of common general knowledge, the ability to combine documents and the expectation of success in solving the problem. These all turn on the statutory and jurisprudential tests for inventive step, so it is convenient to turn to those now.

1. The statutory basis for inventive step comes from subsections 7(2) and (3):

(2) For the purposes of this Act, an invention is to be taken to involve an inventive step when compared with the prior art base unless the invention would have been obvious to a person skilled in the relevant art in the light of the common general knowledge as it existed (whether in or out of the patent area) before the priority date of the relevant claim, whether that knowledge is considered separately or together with the information mentioned in subsection (3). > > (3) The information for the purposes of subsection (2) is: > > (a) any single piece of prior art information; or > > (b) a combination of any 2 or more pieces of prior art information that the skilled person mentioned in subsection (2) could, before the priority date of the relevant claim, be reasonably expected to have combined.

2. The key points from this are:
   • Obviousness is determined from the perspective of the person skilled in the art equipped with their common general knowledge.
   • That knowledge can be considered with any piece of prior art information (s7(3)(a) information or a so called "plus one" document).
   • Alternatively, more than one piece of prior art information can be considered together but only if the personal skilled in the art could have reasonably combined them (s7(3)(b) information).
3. The above definition replaces the pre-"Raising the Bar" standard which placed a caveat over both clauses 7(3)(a) and 7(3)(b) that the prior art information needed to be "ascertained, understood, and regarded as relevant".[46] Notably, while a somewhat similar concept attaches to clause 7(3)(b) as currently in force in terms of the ability to consider multiple pieces of prior art information together, none such attaches to single documents from clause 7(3)(a).
4. Therefore my reading of clause 7(3)(a) is that the notional person skilled in the art is to consider the information from single documents, whether inside or out of their technical field, in combination with their own common general knowledge.

1. Common general knowledge has been defined as something that "is generally known and accepted without question by the bulk of those who are engaged in the particular art".[47] The Applicant placed considerable emphasis in the hearing about the need to establish common general knowledge by evidence. While this is true, I do not understand that there is any specific privilege associated with declaratory evidence in proceedings before the Commissioner, who is not bound by federal court rules of evidence. I am able to draw inferences as to what is common general knowledge based on all available evidence, including not only declaratory evidence but also documentary evidence filed during the Opposition proceeding.
2. In asking whether something is common general knowledge for the purposes of s7(2) in this case, I need to consider whether it would have been generally known to the notional "person skilled in the art" in the relevant field which is meat mimetics.

1. The test for whether an invention is obvious is to ask whether it would have been a matter of routine to proceed to the claimed invention. In Wellcome Foundation Ltd v V. R. Laboratories (Aust.) Pty Ltd[48] Aickin J stated:

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

2. The High Court in Aktiebolaget Hassle v Alphapharm Pty Ltd[49] referred to this approach with approval and further held:

That way of approaching the matter has an affinity with the reformulation of the 'Cripps question' by Graham J in Olin Mathieson Chemical Corporation v Biorex Laboratories Ltd [1970] RPC 157. This court had been referred to Olin in the argument in Wellcome Foundation. Graham J had posed the question: > > 'Would the notional research group at the relevant date in all the circumstances directly be led as a matter of course to try [the claimed invention] in the expectation that it might well produce [the desired result]?' > > That approach should be accepted."

3. This "reformulated Cripps question" is not the only way to approach inventive step but it is a useful approach that has been endorsed by the High Court.
4. It is well established that in order to apply this Cripps question approach, the problem to be solved must have been available to the notional skilled worker, either as part of their common general knowledge or as part of s7(3) information.[50]
5. The expectation of success was considered in Nichia Corporation v Arrow Electronics Australia Pty Ltd[51] ("Nichia"). The Full Court in Nichia noted that the relevant test is merely an expectation that the steps may work, and stressed that "directly led" and "in the expectation" in the Cripps question are not separate tests but are a single qualified question, citing with approval the observation in Generic Health Pty Ltd v Bayer Pharma Aktiengesellschaft[52] that it "is difficult to think of a case where an expectation that an experiment might well succeed is not implicit in the characterisation of steps as routine and to be tried as a matter of course".
6. There is some nuance to the requisite level of expectation of success. The expectation cited in the above cases is that an approach "might well" succeed, and as such, success need not be guaranteed: "the relevant test is not knowing that steps will or would or even may well work, but merely expecting that the steps may well work."[53] Further, it is possible that the skilled person might be directly led to try more than one alternative expecting that each may well produce a useful or desired result.[54]
7. The Full Court in Nichia also pointed to the importance of correctly construing the problem to be solved (also described as the outcome to be sought or the useful result). It agreed that considering the issue of obviousness by reference to "the outcome that is sought" is an orthodox approach.[55]
8. In the case at issue in Nichia, the Full Court criticised the primary judgment for applying "too high a standard" of expecting a white LED which is durable, with good colour tone and high luminance,[56] whereas the primary judge had found that the claims and specification read as a whole disclosed that the invention in Nichia need meet only one of those objects.[57] The Full Court then emphasised that "the concept of a useful result, for the purposes of the Cripps question, cannot exceed that which the claims and the specification as a whole in the context of the prior art identifies as useful."[58]
9. However the Full Court did not accept the proposition that the qualitative aspects of the useful result needed to be integers in the claims[59] and cited with approval Middleton J in Eli Lilly and Co Ltd v Apotex Pty Ltd: "It is impermissible to divorce olanzapine from its context and subject it to an obviousness test that completely disregards its utility as an antipsychotic drug".[60]
10. From the above guidance, the nature of the problem to be solved (referred to as "useful result" or "outcome to be sought" in Nichia) is critical to the determination of inventive step according to the reformulated Cripps question, as it is the nature of the problem to be solved which provides the context for determining the skilled worker's expectation of success.
11. It also follows that the problem to be solved must be commensurate with the whole scope of the claims. It is not appropriate to use a problem associated with "too high a standard" that only applies to some but not all of the claim scope.
12. With that in mind, and with reference to the scope of the claims and what the specification has disclosed, the appropriate problem to be solved appears to be providing a food colouring agent for meat mimetics that can mimic the colour transition of meat when cooked. However in my view it would be inappropriate to extend this problem to, for example, completely mimicking the colour behaviour of myoglobin, or to include properties such as stability which were not even assessed by the inventors in the specification.
13. The questions to be asked, therefore, are
    • firstly: was it known from prior art information or common general knowledge that there was a need for meat mimetics that can mimic the colour transition of meat when cooked.
    • if so, then: would the skilled worker, armed with common general knowledge in the field of meat analogues combined with information available under either s7(3)(a) or (b), have had a reasonable expectation that Porphyridium or Rhodomonas phycoerythrin "may well" work in that capacity?
14. The first of these questions is a threshold one: if the problem was not available to the skilled worker then the analysis cannot apply. In my view, the most apposite statement of the problem was found in in paragraph 3.5 of D39, which is a review article discussing commercially available meat and meat analogue products based on publicly available data.

The color of meat products is often considered the most important attribute for consumer purchase intent [65,66]. In addition to the characteristic color of uncooked meat products (typically bright cherry red for beef, reddish pink for pork, and bluish-white to yellow for poultry), the color of meat products changes during cooking as the proteins responsible for the characteristic color of meat (primarily myoglobin) undergo chemical changes [66]. A similar concept could be presented for the importance of the color and the change of color during cooking for meat analogue products. Meat analogue products should have similar color attributes to the meat product they are simulating before, during, and after cooking [13].

15. The emphasis is mine. Reference [13] in this paragraph is to a chapter entitled "Plant-based meat analogues, in: Sustainable Meat Production and Processing" published by the Academic Press in 2019. Together with the fact that the discussion in D39 appears to be derived from a review of the ingredient lists of commercially available food products, I am minded to consider that D39 is representative of common general knowledge in the field of meat analogues. Even though the publication itself may not have been widely read, it appears to reflect knowledge that would have been available to, and accepted without question by, the nominal worker in that field.
16. I put the above to the applicant in my post hearing letter of 20 June 2025. As to the relevance of D39 to the common general knowledge, the Applicant submitted that no evidence had been adduced to that effect. However in my view, D39 is more likely than not to be representative of the common general knowledge based on its content. Although declaratory evidence is often useful to the Commissioner in establishing whether something is common general knowledge, it is not an essential requirement particularly if other documentary evidence is available.
17. In my discussion of the relevance of the expert evidence above, I noted that there was little direct experience in the field of meat mimetics. Dr Ha appeared to have the most relevant experience. Although the majority of his evidence is related to the physicochemical basis of colour he did comment at paragraphs 15 and 35 that there had been research on colouring agents for meat mimetic products as of the priority date from the perspective of replicating the photochemistry of myoglobin, and that other thermally unstable pigments had been tried but had not been successful. I consider this is consistent with the conclusion that the problem of replicating the colour transition of meat was part of the common general knowledge.
18. The Applicant also contested whether the above problem could properly be derived from that passage in D39. The Applicant drew attention to the passage immediately following which highlighted the characteristics of meat analogues on the market, noting the following:

The ingredients used in modern meat analogue products to achieve the characteristic colours vary from product to product. The general concept is formulation with ingredients that elicit naturally occurring colour attributes that are comparable with the meat product being simulated

1. This is followed by an enumeration of the colouring agents used in commercial meat analogues. The Applicant submitted that this indicates "the industry was focused on non-protein red pigments (such as beet juice extract), or proteins which were analogous to myoglobin".[61] However I cannot agree with this conclusion. Ipso facto D39 does not mention phycoerythrin in this context otherwise it would be being discussed in the context of lack of novelty. Furthermore it seems artificial to suggest that the scope of enquiry was limited to just those distinct classes (which conveniently would exclude phycoerythrin). Rather I believe the idea that the ingredients will vary from product to product is more consistent with there being an accepted need for more ingredients with suitable colour attributes for different products.
2. It is therefore appropriate to proceed with the Cripps question from this standpoint.

1. As mentioned above, I understand the grounds pressed in the Opponent's written submissions to be based on either D2, D4, D7 or D8 with, alternatively, the common general knowledge or a range of references including D17/D18/D44 (broadly speaking - physicochemical characterisation of Porphyridium or Rhodomonas phycoerythrin showing loss of colour around 60-80 °C) and/or D39.
2. D2, D7 and D8 all disclose, at best, the use of seaweed proteins as food colouring agents and do not mention Porphyridium or Rhodomonas specifically. And I agree with the Applicant that the field of the skilled worker (and hence the field of common general knowledge) for the purposes of assessing inventive step is that of food technology, in particular meat mimetic technology. There is no evidence that marine biology forms part of that common general knowledge. Therefore it cannot be said that the missing features of Porphyridium or Rhodomonas species form part of that common general knowledge, and it follows that the attack based on D2, D7 or D8 as s7(3)(a) information must fail.
3. Turning to D4, I acknowledge that it does mention at least Porphyridium species, and I also acknowledge that the combination of elements of claim 1 are indeed one out of a large number of possible combinations of optional features disclosed in D4 - as indicated in the discussion of novelty above, this would involve making particular choices from each of paragraphs [0025], [0035], [0257], [0258], and [0260].
4. The question is whether the skilled worker would have done so in the context of the problem of providing meat mimetics that can mimic the colour transition of meat when cooked. To the extent that D4 discusses this problem, it does this at paragraphs [0148] - [0153] but the solution proposed in D4 is to have a heat-sensitive agent release system that releases other agents that confer properties of cooked meats. This is a different solution to the one presently claimed. I therefore fail to see how the skilled worker, reading D4 in the context of the problem, would have proceeded to the specific combination of features from paragraphs [0025], [0035], [0257], [0258], and [0260] without the use of hindsight.
5. Turning to the combination of those documents with others, s7(3)(b) information requires that the skilled worker would have reasonably expected to combine the documents. Now the evidence relating to the mindset of the skilled worker in the food technology field from Mr Sanzo is that the typical worker would not seek out scientific papers at all.[62] While I do have some concerns that this is perhaps too closed minded for the notional skilled worker who after all is a mere avatar and is not necessarily limited by commercial and time pressures as Mr Sanzo apparently is, this clearly indicates that the worker in this field is less likely to look outside it. And none of D17/D18/D44 are in the field of food technology per se.
6. It follows that I find it more likely than not that the skilled worker in the field of food technology would not have combined the asserted s7(3)(b) information. Therefore this information cannot be used as the prior art base for inventive step.
7. For completeness, although D39 is within the food technology field it does not disclose the Porphyridium or Rhodomonas species and cannot complement the defects in D2/D4/D7/D8.

Obviousness in view of the suitability of Porphyridium or Rhodomonas phycoerythrin for that purpose

1. As mentioned earlier, the line of argument advanced by the Opponent in the hearing that the known properties of Porphyridium and Rhodomonas phycoerythrin make them an obvious choice as pigments for meat mimetics, can be recast as a question of obviousness using either D17 or D18 as s7(3)(a) information, and I put this question to the applicant in post hearing correspondence.
2. During the hearing the applicant had made the following submissions:
   • The skilled worker would not have considered D17 and D18 to relate to food grade pigments.
   • The skilled worker would have understood the focus on the dye stability in D17 and D18 as downsides for these pigments and therefore have considered these papers to teach away from food grade applications.
3. However as the ground of obviousness in view of either D17 or D18 as a single document had not been clearly put to the applicant up to the hearing, they were afforded an additional opportunity to comment after the hearing.
4. The Applicant provided further rebuttals along the following lines:
   • There is no expectation of success that fluorescence data could be equated to colour loss in food, based on the different colour mechanism of phycoerythrin compared to myoglobin, and in view of poor performance of commercially available unstable pigments (with reference to Dr Ha's declaration at 32-35).
   • The data in D17 and D18 was generated in vitro and there is no expectation that this would be carried over into a meat mimetic matrix environment (with reference to the evidence of Mr Sanzo, Dr De Vree, and Dr Ferrer Ledo).
5. I will address these points in turn.

1. Although it is true that these documents do not mention "food grade" dyes per se, D17 and D18 do not suggest that phycoerythrins are incompatible with food, as their background sections mention similar proteins already in use as dyes in food and medicine. The experts did not particularly comment on whether or not these publications related to food grade dyes either.[63]
2. And while it is true that the focus of D17 and D18 when read as a whole was determining the stability of the phycoerythrin against various stimuli, I did not find anything in those documents recommending against any particular applications of the phycoerythrins. The conclusion section of D17 simply reports the stability findings, whereas the conclusion of D18 identified conditions where the phycoerythrin was stable (notably, under 40 °C) and notes that temperature is one of the parameters important for use in food applications.
3. On balance I do not see anything in D17 and D18 that would dissuade the uninventive skilled worker from using phycoerythrin in food applications.

1. Dr Ha explains the difference in the physicochemical basis of colour between myoglobin and phycoerythrin - the colour of myoglobin comes from the absorbance and reflectance of the heme group which varies depending on the oxidation state of the central iron - Fe(II) with or without bound oxygen are red and purple (as with hemoglobin) whereas once the heme is oxidised to Fe(III) it cannot bind oxygen and becomes brown.[64]
2. Conversely, the colour of phycoerythrin comes from its fluorophore which, although conjugated, does not complex iron. Rather its colour is absorption/emission based, and is unrelated to oxidation state.[65]
3. Dr Ha explains that the colour of pigments determines the hue ("colour") of food products but so-called structural colour influences the chroma ("intensity") and comes from the environment in which the pigments are embedded, also known as the "matrix effect". For instance, myoglobin is naturally embedded in organelles and cannot move though the matrix of natural meat. On the other hand, colourants in meat mimetics can be more mobile.[66]
4. Dr Ha concludes that the colour behaviour of myoglobin (a chromophore) in a natural meat matrix cannot be extrapolated to the behaviour of phycoerythrin (a fluorophore) in an artificial matrix. He likewise cautions against extrapolating phycoerythrin denaturation behaviour in whole seaweed where the phycoerythrin is likewise localised to thylakoid membranes.[67]

1. Mr Sanzo characterised the matrix of meat products as the ultimate interaction of textured protein, oils and fats, binders, colourants and flavourants, and states that understanding the performance of any of these ingredients in the matrix requires extensive trial and error.[68]
2. Mr Sanzo stated that meat mimetic colourants would need to perform in wet and semisolid matrix.[69]
3. Mr Sanzo states that colourant stability and performance in the product matrix is important for shelf life.[70]
4. With respect to D17 and D18, Mr Sanzo notes that the experiments were carried out in an aqueous buffer and in his opinion cannot be extrapolated to performance in a meat mimetic matrix. He believes that interactions between the phycoerythrin and the other ingredients "such as fats, binders, gums, hydrocolloids, flavourants etc" would result in different performance to in an aqueous buffer.[71]
5. Dr Ha explains that meat and meat mimetics have different compositions and colour chemistries. He states that meat colour comes from the oxygen carrier myoglobin in the sarcoplasm of muscle cells whereas meat mimetics get colour from colouring agents in an artificial matrix.[72]
6. Dr De Vree's opinion after having carried out a review of prior art documents was that

The importance of having a stable pigment and the effect of environment is acknowledged, and some of the authors consider that further research is required to focus on chemical interactions and stabilizing agents and the food matrix. Given phycoerythrin's thermal, pH and additive sensitivities, it would seem to be necessary where its potential as a food colouring agent is considered, to first test phycoerythrin within the particular food application to see how it behaves outside the aqueous in vitro environments described in the prior art, and if the desired colouring effect can be achieved in the environment of a real food matrix.[73]

7. Dr Ferrer Ledo was of a similar opinion, noting that not all phycoerythrins behave in the same manner, pH and chemical interactions can affect their stability, and that it would be necessary to test phycoerythrin within each particular food matrix to see if can achieve the desired colouring effect.[74]
8. Dr Bailey's comments regarding the food matrix primarily related to the pH of the matrix and the corresponding impact on stability of the components.
9. Dr Bailey was briefed as someone who is very familiar with the properties of algal phycobiliproteins. Dr Bailey stated that he has been involved in industrial projects for isolating phycobiliproteins as colorants but was unable to provide further details due to trade secret considerations.[75] Dr Bailey's evidence takes the form of a review of prior art documents provided by the Opponent with regard to the properties that would make them suitable for use in meat substitutes.[76]
10. During his review of the prior art, Dr Bailey is relatively cagey as to what each reference has to say in terms of application as meat substitutes, limiting his attention to the physical properties disclosed in each reference. (Notably, among these references are D17 and D18 which I identified as having the most salience, although a number of other references could be characterised as having similar disclosure, e.g. D24 and D25) Later in his declaration, Dr Bailey concludes that based on his review, algal phycoerythrin had been used for colour changing properties in meat substitutes prior to the priority date.
11. I note that this is inconsistent with my findings on novelty, however this may be explained by the fact that at the time he was preparing his evidence in support the claims were only directed to microalgal phycoerythrins, not those specifically from Porphyridium or Rhodophya.

1. Considering all the evidence, I do not think that it is objectively surprising that phycoerythrin would be suitable as a meat mimetic. The problem was to find a red pigment that loses colour in the appropriate temperature range. D17 and D18 do indeed show this. The experiments in these documents were done in solution which is close to the "freely moving", "wet or semisolid" mince mimetic matrix described by Dr Ha. The fact that the mechanism is thermal denaturation rather than oxidation seems to me less relevant - the person skilled in the is a food technologist looking for colour change properties rather than a theoretical mechanism - and furthermore seems to offer no incompatibility with a matrix environment. Mr Sanzo did not suggest any mechanism as to how or why the contents of the matrix would affect thermal denaturation of phycoerythrin. And while Drs De Vree and Ferrer Ledo drew conclusions based on a review of prior art documents, their perspective is that of algal biotechnologists which is relevantly not that of the nominal skilled worker in the field relevant to the problem.
2. It follows that, on balance, the skilled worker in the field of meat mimetics would have had an expectation that thermal denaturation of phycoerythrin, in particular from Porphyridium and Rhodomonas, as made available to them from D17/D18 respectively under s7(3)(a), "may well" have been effective in providing the meat mimetic with colour attributes consistent with cooking. The concerns of the Applicant's experts regarding the need for validation seem to me to reflect a standard of certainty that would be perhaps ideal for commercial development in the food technology industry, but which is higher than the "may well succeed" threshold required by the Australian authorities for finding lack of inventive step. For example although Dr De Vree commented that "some authors consider that further research is required" this does not convince me on the balance of probabilities that the requisite standard of "expectation that it may well provide a solution to the problem" has not been met.
3. The features in the dependent claims were treated in some length in the Opponents written submissions, but this was not done from the perspective of D17 or D18. Nevertheless as discussed in paragraph 55 above, all the dependent claims relate either to inherent properties of the phycoerythrins or to standard ways of formulating food products. To the extent they are not already inherent properties of the phycoerythrins, there does not seem to be any reason that the skilled worker would not also be directly led to carry out these iterations and embodiments, with an expectation that the phycoerythrin would thermally denature in the appropriate temperature range. There were no specific submissions from the Applicant relating to the inventiveness of any particular dependent claims.
4. I therefore find that all claims lack inventive step in view of common general knowledge and either D17 (for Rhodomonas) or D18 (for Porphyridium).

1. The Opponent pointed to some apparent inconsistencies[77] in claim 1 insofar that some possible embodiments encompassed by the claim did not exist - e.g. not all Porphyridium species contain red phycoerythrin and that not all phycoerythrins change colour at the ends of the 50-95°C range. However in my construction of the claims at paragraph 58 above I was able to put a meaning on all these terms - these merely exclude phycoerythrins that do not satisfy the criteria. In order to infringe the claim the phycoerythrin must come from one of the listed species and must denature within the claimed temperature range. The skilled worker could easily establish whether or not these criteria are met.
2. There is no lack of clarity.

1. The core question underlying the best method requirement is to ask whether there is any evidence that the applicant was aware of a better method of performing the invention than that disclosed in the specification.[78] This is consistent with the legal principles identified by the Opponent at 151-176 of their written submissions. I note that much of the discussion in that section of the submissions amounts to complaints that the Applicant could or should have provided more information on various aspects of the invention. Nevertheless, whether or not the reader is left wondering as to certain details that were not disclosed is not related to the best method test, which is a factual one as to whether the applicant knew of a better method that was not disclosed.
2. The strongest submission advance by the Opponent in this regard is at 163-164 which relates to exhibit NH-5, an email sent by Adam Cheney of the Applicant to Dr. Hazell, relating to characterisation of Porphyridium purpureum phycoerythrin obtained from UTS and extracted by the CSIRO.[79] I have reproduced the relevant part of the email below

3. I note that these formulations are broadly consistent with the those set out at tables 7-1 and 8-1 of the description, including the use of burnt sugar for red meat application. Further, the language of "had a play" and "taking it in the right direction" clearly indicates that these were initial experiments and not a best method that has been excluded from the specification.
4. I am therefore not convinced that the applicant knew of a better method of formulating phycoerythrin into meat mimetics as of the filing date than the examples in the specification. As for the alleged lack of information as to the culture, extraction, purity and absorbance characteristics of the Porphyridium phycoerythrin,[80] I note that the specification discloses the source of the Porphyridium as UTS as well as disclosing extraction methods.
5. Although in the Kineta case the Deputy Commissioner found the best method requirement was not satisfied because the applicant sourced a compound from a supplier and did not disclose the identity of the supplier[81] this is not the case here.
6. The ground of lack of best method is not made out.

1. The principles governing s40(2)(a) ("Clear enough and complete enough disclosure" or "Sufficiency") were first reviewed post the Raising the Bar Bill in Evolva SA [2017] APO 57. In Evolva, the Deputy Commissioner set forth the following test:

Does the specification provide an enabling disclosure of all the things that fall within the scope of the claims, and in particular: > > (a) Is it plausible that the invention can be worked across the full scope of the claim? > > (b) Can the invention be performed across the full scope of the claim without undue burden? [82]

1. These principles have been endorsed by subsequent Federal Court decisions.[83] The question of what constitutes the full scope of the claims has been most recently addressed in Jusand[84] which reviewed the previous most pertinent UK decisions[85] and found that only ranges which were "relevant", in the sense that they relate to the performance of the technical contribution of the invention, should be interrogated.
2. The Opponent's submissions on sufficiency fell broadly under the heading that the number of possible variables in the claims, combined with the statements by the Applicant's experts that validation would need to be required for each food product before proceeding, is indicative of an undue burden.
3. In particular the Opponent pointed to the range of food products encompassed (each with different desired colour traits and matrix effects), the range of phycoerythrins produced by the range of Porphyridium and Rhodomonas species, and the fact that the specification had only demonstrated one Rhodomonas phycoerythrin within the scope of the claims and in a very generic food matrix.[86]
4. The Applicant pointed out that phycoerythrins which did not satisfy the claimed performance criteria did not fall within the scope of the claims. In response to the question of validation, the Applicant submitted that the inventors did indeed validate their invention and that Mr Sanzo's evidence is that he would have no difficulty selecting suitable doses and combinations to simulate a range of food products.[87] The Applicant also submitted that Mr Sanzo's evidence at [458] that he would not extrapolate colourant performance between food categories is not relevant to extrapolating within the category of meat mimetics, once the inventors provided proof of concept.
5. I am not particularly convinced by this latter point - although there is no evidence on it, it seems apparent to me that the matrix characteristics of mince would be quite different to a structured meat mimetic such as steak, or a moist and oily meat mimetic such as fish (both of which are pointed to in claims 21-22).
6. Nevertheless, the Jusand approach of determining which variables are relevant and only interrogating those seems to be of more utility here. In Jusand at [204], Perram J accepted that the technical contribution in product claims was the product itself, but noted the caution from Birss J in Illumina that

In some cases the products are easy enough to make but where patent claims fall down is because the (alleged) property of those products, which was said to be the thing which made them inventive in the first place, was not shared by all the products within the claimed range. The products could be made alright but they do not do what is promised and so the claim exceeds that technical contribution for that reason.

1. However, analogous to the problem identified for the purposes of inventive step, in the present case the technical contribution appears to be just the ability to change the colour of the meat mimetic in the appropriate temperature range. It does not seem to be the case that the presently claimed products, once made, would not behave in that way. The concern raised by Birss J does not seem founded here.
2. Although there are clearly variabilities in the type or amount of phycoerythrin that could be used, and in the nature of the meat mimetic product, these do not seem to be "relevant" to the technical contribution itself, even though fleshing out the full gamut of such embodiments might be commercially desirable.

1. The Opponent's submissions on support[88] were fairly brief - they alleged that the claims were not novel there was no technical contribution and as such the claims do not correspond to the technical contribution.[89] As mentioned above, I am satisfied that the application does have a technical contribution and that it is reflected in the claims. The ground of lack of support is not made out.

1. The Opposition has succeeded in that all claims lack inventive step, and fails on all other grounds.

1. Costs usually follow the event. However regulation 5.20(6) provides that failure to provide a summary of submissions may be considered when making an award of costs. Although the Opponent provided a very lengthy summary of submissions, the point that I found to be determinative was not developed by the Opponent until the oral hearing, and necessitated a further round of submissions from the Applicant. I find this situation to be somewhat analogous to a failure to provide a written summary of submissions, in that it reduced the ability of the Applicant to answer the case against them at the hearing. Bearing this in mind, as well as the significant amount of evidence adduced by the Opponent in support of the other, unsuccessful, grounds, I consider it appropriate for the parties to bear their own costs.

1. Subsection 60(3B) of the Act provides that the Applicant must be given a reasonable opportunity to amend the specification to remove a ground of opposition, but only if it appropriate to do so.
2. It is the usual practice of the Commissioner to afford an applicant an opportunity to amend when an opposition has succeeded on the grounds of novelty or inventive step, as it is often the case that novel and inventive subject matter may be found in the description.
3. However in the present case it is not apparent to me precisely what such novel and inventive subject matter may be, and hence I am not necessarily convinced that an opportunity to amend is appropriate in the sense of s60(3B).
4. Factors that have been considered relevant to appropriateness are the likelihood of overcoming the objection by amendment,[90] and the public interest in avoiding uncertainty given the presence of divisional applications.[91] Since any amendment might introduce features which have not been the subject of evidence and that noting that a divisional application 2023270347 is currently pending, it seems that it might be preferable for potentially inventive subject matter to be considered in that context.
5. As the issue of appropriateness has not yet been put to the parties, I invite submissions within two (2) months from the date of this decision on whether it is appropriate to allow an opportunity to amend.

1. A meat mimetic food product comprising one or more phycobiliproteins comprising at least phycoerythrin in an amount sufficient to visually confer a pink or red colour to the food product, and which affords a visual colour change upon cooking of the food product to an internal temperature in the range of about 50-95°C, wherein the one or more phycobiliproteins comprising at least phycoerythrin are extracted from a Porphyridium sp and/or a Rhodomonas sp.

2. The meat mimetic food product according to claim 1 wherein the visual colour change occurs upon cooking of the food product to an internal temperature in the range of about 60-85°C.

3. The meat mimetic food product according to claim 1 or 2 wherein the one or more phycobiliproteins comprise R-phycoerythrin.

4. The meat mimetic food product according to any one of claims 1-3 wherein the one or more phycobiliproteins comprise C-phycoerythrin.

5. The meat mimetic food product according to any one of claims 1-4 wherein the one or more phycobiliproteins comprise B-phycoerythrin.

6. The meat mimetic food product according to any one of claims 1-5 wherein the one or more phycobiliproteins comprise b-phycoerythrin.

7. The meat mimetic food product according to any one of claims 1-6 wherein the one or more phycobiliproteins comprise phycoerythrin in an amount of at least 50%, or at least 70% or at least 90%, or at least 99% of all phycobiliproteins on a w/w basis.

8. The meat mimetic food product according to any one of claims 1-7 wherein the one or more phycobiliproteins comprising at least phycoerythrin are present in the form of a purified or at least partially purified isolate from a Porphyridium sp and/or a Rhodomonas sp.

9. The meat mimetic food product according to any one of claims 1-8 wherein the one or more phycobiliproteins comprising at least phycoerythrin are extracted from Porphyridium sp.

10. The meat mimetic food product according to claim any one of claims 1-8 wherein the one or more phycobiliproteins comprising at least phycoerythrin are extracted from a Rhodomonas sp.

11. The meat mimetic food product according to any one of claims 1-10 wherein the phycoerythrin demonstrates a 50% absorbance reduction of λmax in the range of about 50-95°C.

12. The meat mimetic food product according to claim 11 wherein the phycoerythrin demonstrates a 50% absorbance reduction of λmax in the range of about 60-85°C.

13. The meat mimetic food product according to claim 11 or 12 wherein λmax is in the range of about 540-570 nm.

14. The meat mimetic food product according to any one of claims 1-13 wherein the phycoerythrin exhibits a 540-570 nm to 495-503 nm UV/visible absorbance peak ratio of at least 1:1, or at least 3:1, or at least 5:1, or at least 7:1, or at least 10:1, preferably only a single peak at 540-570 nm, more preferably at 550-565 nm.

15. The meat mimetic food product according to any one of claims 1-14, wherein the Porphyridium sp or Rhodomonas sp has a phycoerythrin content from about 1-150 mg/g dry weight, preferably about 40-80 mg/g dry weight.

16. The meat mimetic food product according to any one of claims 1-15, further comprising one or more colouring agents.

17. The meat mimetic food product according to claim 16, wherein the one or more colouring agents have a colour selected from red, magenta, purple/violet, orange, yellow, brown, blue and green.

18. The meat mimetic food product according to claim 16 or 17 wherein the one or more colouring agents are selected from plant-derived colouring agents, including betalains, carotenoids, flavonoids, and polyphenols; a juice, concentrate, extract or dried powder derived from plants, including berries, grapes, beetroot, radish, turmeric and carrot; and caramel and burnt sugar.

19. The meat mimetic food product according to any one of claims 1-18 comprising a nonanimal protein source, one or more carbohydrates, one or more fats and oils, one or more flavour components and water.

20. The meat mimetic food product according to claim 19 wherein the protein source is a plant based protein selected from soy, faba bean, pea, wheat, chickpea and mungbean protein.

21. The meat mimetic food product according to any one of claims 1-20 which is a chicken, beef, lamb, veal, pork, goat, kangaroo or fish/seafood mimetic product.

22. The meat mimetic food product according to any one of claims 1-21 which is a ground or shredded meat product, or a formed or shaped meat product.

23. The meat mimetic food product according to any one of claims 1-22 which has been cooked to an internal temperature in the range of about 50-95°C, preferably 60-85°C.

24. Use of one or more phycobiliproteins comprising at least phycoerythrin, extracted from a Porphyridium sp and/or a Rhodomonas sp in the preparation of a meat mimetic food product according to any one of claims 1-23.

[1] All statutory references are to the Patents Act 1990 and the associated Patents Regulations 1991 unless indicated otherwise.

[2] Opponent's summary of submissions ("OS") at 17-20

[3] Cf Eli Lilly and Company Limited v Apotex Pty Ltd [2013] FCA 214 at 139

[4]Root Quality Pty Ltd v Root Control Technologies Pty Ltd [2000] FCA 980 at 70.

[6] AstraZeneca AB v Apotex Pty Ltd [2015] HCA 30 at 23

[7] Cf Schlumberger Holdings Ltd v Electromagnetic Geoservices AS [2010] EWCA Civ 819 at 61-65, cited with approval in Nichia Corporation v Arrow Electronics Australia Pty Ltd (No 4) [2017] FCA 864 at 165-168 and in ToolGen Incorporated v Fisher (No 2) [2023] FCA 794 at 81

[22] According to his CV (Exhibit AS-2) Mr Sanzo has worked with Bonlac and Plumrose foods, Mars Confectionary, Uncle Tobys and Nutrifoods - the only project which appears relevant to the meat mimetic field was his interaction with the Applicant in 2023 (AS-2 last line).

[25] Cf AstraZeneca AB v Apotex Pty Ltd [2015] HCA 30 at 23 where French J criticised the tendency to give the person skilled in the art human characteristics of volitional and purposive action, confirming that this entity is a mere tool of analysis and a pale shadow of a real person.

[30] ToolGen Incorporated v Fisher (No 2) [2023] FCA 794

[35] Opponents written summary of submissions ("OS") at 346

[39] Apotex Pty Ltd (formerly GenRx Pty Ltd) v Sanofi-Aventis [2008] FCA 1194 at 91 per Gyles J

[40] General Tire & Rubber Co v Firestone Tyre & Rubber Co Ltd [1972] RPC 457

[41] [1862] EngR 365; (1862) 45 ER 1195

[43] https://en.wikipedia.org/wiki/Red\_algae

[44] See Figs 4 & 6 of D17, Fig 5 of D18, Fig 6 of D44

[45] I viewed D17 and D18 as being more relevant than D44 as they contained more extensive characterisation of the phycoerythrins including stability data with respect to light, pH and ethanol exposure.

[46] A concept that the Opponent referenced a number of times in their written submissions, even though the current, post "Raising the Bar" test is less stringent.

[47] British Acoustic Films Ltd v Nettlefold Productions (1936) RPC 221 at 250

[48] (1981) 148 CLR 262 at 286

[49] [2002] HCA 59; (2002) 212 CLR 411 at 53

[50] AstraZeneca AB v Apotex Pty Ltd [2014] FCAFC 99 at 203 (undisturbed on appeal)

[51] [2019] FCAFC 2

[52] [2014] FCAFC 73 at 71

[60] Nichia at 76, citing [2013] FCA 214 at 533

[61] Applicant's supplementary submissions at 3

[63] Cf Sanzo at 320-332, Ha at 31, de Vree at 70-76, Ferrer Ledo at 74-80

[70] Sanzo at 14 - however I note that the Opposed Applicant does not report any shelf life stability characteristics - as per Nichia it would be inappropriate to import shelf life stability into the hypothetical problem to be solved

[73] De Vree at 78 - similar statements were made at 151 in response to the Bailey declaration

[74] Ferrer Ledo at 96-97 - similar statements were made at 171 in response to the Bailey declaration

[78] Kineta, Inc. [2017] APO 45 at 24

[83] Jusand, infra as well as e.g. Cytec Industries Inc v Nalco Company [2021] FCA 970; Perfect Day, Inc. v Commissioner of Patents [2025] FCA 270; Merck Sharp & Dohme Corporation v Wyeth LLC (No 3) [2020] FCA 1477; Calix Ltd v Grenof Pty Ltd (2023) FCA 378

[84] Jusand Nominees Pty Ltd v Rattlejack Innovations Pty Ltd [2023] FCAFC 178

[85]Regeneron Pharmaceuticals Inc v Kymab Ltd [2020] UKSC 27; [2020] RPC 22 and Illumina Cambridge Ltd v Latvia MGI Tech SIA [2021] EWHC 57; [2021] RPC 12

[87] Applicant's written summary of submissions at 89 and 110

[89] A test first set out in CSR Building Products Ltd v United States Gypsum Company [2015] APO 21 and since affirmed by the Federal Court - although other aspects of s40(3) relating to consistency with the description have been set out in e.g. Perfect Day, Inc. v Commissioner of Patents [2025] FCA 270 and Calix Ltd v Grenof Pty Ltd (2023) FCA 378 these were not pressed by the Opponent and are not enlivened here.

[90] Nufarm Australia Limited v Corteva Agriscience LLC [2023] APO 40 at 68

[91] Global Blue SA v Visa USA Inc. [2018] APO 86 at 74