Conclusion and reasons
161 Howard I does not anticipate the invention as claimed.
162 An essential feature of the claimed methods of the patent is the use of a single, battery-powered apparatus that carries out the steps of detecting the presence of a vehicle in a parking space; processing and storing data relating to that presence; determining from the stored data whether the vehicle has overstayed a defined time duration in the parking space; and wirelessly transmitting data relating to that overstay. The claimed apparatuses are single, battery-powered apparatuses that have identified features that carry out or are adapted to carry out each of these steps.
163 Howard I does not disclose a method in which the steps are carried out by a single apparatus; nor does it disclose a single apparatus that is characterised by features that carry out or are adapted to carry out these steps.
164 Howard I makes clear that it is the central server, not the sensor (vehicle detector), that determines from processed information whether there has been vehicle overstay. The wireless vehicle detector described in Howard I may have a microcontroller. This microcontroller is described as processing raw data from the sensor (strictly called), including low-level processing such as sampling, filtering and the like, and transforming the data into a form suitable for wireless communication. So described, the microcontroller does not carry out the function of determining from the data it processes and formats whether there has been overstay.
165 Howard I discloses that the central server can, in certain embodiments, reside in a common housing with the sensor (vehicle detector). This disclosure is not made with respect to the described wireless vehicle detector (see [157] to [160] above) but with respect to one embodiment of the distributed parking information system that interacts with the central server (see [155] and [156] above). I have already remarked on the fact that Howard I does not describe how this might be done or how the sensor (vehicle detector) communicates with the central server in this particular configuration. Even so, in the parking information system so described, the sensor (vehicle detector) and the central server retain their separate identities and functions within that system. The central server is not the same apparatus as the sensor (vehicle detector) simply because it might reside in a common housing with the sensor (vehicle detector). In this connection, the central server is still fulfilling the function of interacting with all elements of the distributed parking information system. This function is described as collecting, processing and disseminating information from other sensors, pay stations, and a host of other devices which Howard I exemplifies as:
… weight-in-motion devices, video surveillance equipment, or [licence] plate reading equipment, or payment devices or methods, such as cell phones, credit card payment systems, and other payment system[s] …
166 In other words, the central server remains a data collection apparatus and, as such, determines from data supplied by the sensor (vehicle detector) whether there has been overstay.
167 The respondent placed considerable emphasis on a particular passage in Mr Spirovski's cross-examination, in which the following exchange took place:
And putting aside for a minute the fact that there are other shortcomings, you say, in the apparatus, but just focussing on whether this apparatus identifies overstay, is it right to say that your evidence is to the effect that the defect - the alleged defect in Howard I is that the exercise of detecting overstay is shared as between the detector and the server?---The - the exercise - that model alone as a subset, there is an embodiment of the - there is a description of an embodiment in there, that could - so that section of it alone doesn't - I would say, yes, there is an apparatus for determining overstay.
I see. So if we go to paragraph 60, is that the one you're referring to?---Yes.
Yes. And that suggests that this component that fulfils the server function might be in a common housing with the detector?---Yes.
And so do you accept that if, in terms of the ingredients of the claim, we focussed just on whether there is an apparatus - - -?---Yes.
- - - for identifying overstay, that as it were, in a single apparatus, that Howard I discloses that?---Yes. It does.
168 Once again, this exchange was not made with respect to the disclosure in Howard I of the described wireless vehicle detector, but the parking information system described with respect to Fig 14. I find it difficult, from this exchange, to understand precisely what Mr Spirovski was accepting. His evidence, in this regard, seems to rise no higher than an acceptance that the residence of the central server within the same housing as a sensor (vehicle detector) could be regarded as a single apparatus for identifying vehicle overstay. This evidence does not address, however, the particular features of the claims in suit. If Mr Spirovski was purporting to give evidence that, by stating that a sensor (vehicle detector) and the central server can reside in a common housing, Howard I discloses a single apparatus as defined in the claims in suit, or the steps of the method defined in the claims in suit, then I do not accept that evidence.
169 For completeness I would add that even if, contrary to my view, the central server and a sensor (vehicle detector) residing in a common housing can be considered to be a single apparatus for the purposes of the claims in suit, Howard I would still not anticipate the invention as claimed because there is no disclosure that such an apparatus would itself wirelessly transmits data relating to identified instances of overstay of a vehicle in a parking space.
170 Although Howard I states that the described wireless vehicle detector ([157] to [160] above) may be used with the systems it describes, I do not accept that the person skilled in the art would read Howard I as disclosing that that detector is one that would be used in one of the "certain embodiments" of a parking system in which the sensor (vehicle detector) and the central server reside in a common housing. There are a number of clear indicators for this conclusion.
171 First, the described vehicle detector is configured for wireless communication with the central server. It simply does not make sense that it would communicate wirelessly with the central server in an embodiment in which both reside in a common housing.
172 Secondly, Howard I discloses that the described vehicle detector may, with battery power, be fully wireless. There is no suggestion in Howard I that the central server in the distributed parking system would be battery-powered. It would make no sense for the described detector to be in a common housing with the central server where the detector is battery-powered but the central server is not.
173 Thirdly, the features of the wireless detector in Howard I are fully described. This includes an embodiment in which the detector is configured in a single, self-contained and environmentally-sealed package. This is in the context of the detector being compact, battery-powered and fully wireless, so that it might be conveniently located, wherever desired. There is no suggestion in that part of Howard I that the central server would also reside in the same single, self-contained and environmentally-sealed package.
174 But once again, even if the person skilled in the art would read Howard I as disclosing that the described wireless vehicle detector and the central server could reside in a common housing, the observations I have made in [165], [166] and [169] above would apply equally to such an embodiment.
175 In summary, neither the parking information systems described in Howard I, nor those systems operating with the wireless vehicle detector that is described, whether or not residing in a common housing with the central server, discloses the single apparatus defined in the claims in suit or the steps of the methods defined in the claims in suit.
176 Moreover, with respect to claim 2, Howard I does not disclose an apparatus in which a radio receiver is coupled to a processor for receiving wake-up signals. The wireless vehicle detector described in Howard I does refer to the presence of a "suitably configured" receiver for receiving wireless signals. But this is in the context of the detector receiving signals for remote diagnostics or remote repair. I have quoted the relevant passage in [159] above. As will be apparent from that passage, Howard I discloses that such a receiver, operating in that context, is a source of power dissipation. The solution it proposes is that the wireless vehicle detector be configured to operate periodically "only during a predetermined duration of time and according to a predetermined period", which is exemplified as five minutes each day at 12 o'clock.
177 Significantly, both Dr Klein and Mr Spirovski read the passage quoted in [159] above as disclosing the transmission of wake-up signals, although both proceeded on the basis that such signals were for the purposes of establishing communications for maintenance and programming. However convenient it might be to describe them in such terms, these signals are not the wake-up signals to which claim 2 refers. I doubt, however, that Dr Klein's and Mr Spirovski's reading of that passage is correct in any event. Naturally, I am cautious about not accepting their specific evidence in this regard. But it seems to me that the passage quoted in [159] above does not speak of a signal that is received by the described vehicle detector to activate a communication session between it and other elements of the system. In the quoted passage, Howard I plainly proposes an alternative solution of periodic operation based on the predetermined and specified operating times of the vehicle detector itself. There would seem to be no role for a wake-up signal of any kind in the implementation of that solution. Be that as it may, I am certainly not persuaded that Howard I discloses wake-up signals of the kind to which claim 2 of the patent refers.
178 Finally, with respect to claim 5, Howard I does not disclose an apparatus in which the detector comprises a magnetic field sensor. This finding is supported by the evidence of both Dr Klein and Mr Spirovski, and is informed by my own reading of Howard I.
179 On this aspect of the case, the respondent sought to rely on evidence that, before the priority date, the person skilled in the art would be familiar with magnetic field sensors. The respondent submitted that the person skilled in the art would immediately, and as a matter of course, understand and perceive a magnetic field sensor to be the "ideal vehicle 'sensor' for this application". In this connection, the respondent relied on evidence given by Dr Klein that, for a sensor to be self-contained in a sealed unit and to be capable of operating wirelessly, a magnetometer would be his first choice as an ideal sensor.
180 I do not accept that, according to the correct legal standard, Howard I discloses the use of a magnetic field sensor. There is no explicit disclosure of that feature and the evidence falls short of establishing an implicit disclosure. In order for a publication to be anticipatory, it is not sufficient that the person skilled in the art, on reading it, would think that a feature, not disclosed by the publication itself, might be a good idea: Ramset Fasteners (Aust) Pty Ltd v Advanced Building Systems Pty Ltd (1999) 44 IPR 481 at [23]-[25]. The question for novelty purposes is: what does the publication disclose? In seeking to answer this question, the respondent's submissions introduce into the inquiry considerations that are more appropriate when determining obviousness in the context of s 7(2) of the Act, where the common general knowledge and a documentary disclosure can be combined in an appropriate case. The present is not such a case, and the relevant inquiry is not about whether the invention as claimed is supported by an inventive step.
181 Moreover, claim 5 is dependent on each of the two other apparatus claims (claims 2 and 4). Howard I does not anticipate either of those claims, for reasons that are unrelated to any failure to disclose a magnetic field sensor. Howard I cannot, therefore, anticipate claim 5, regardless of whether or not it discloses an apparatus that comprises a magnetic field sensor.