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Re: MARTIN ENGINEERING COMPANY; E.S.S. ENGINEERING SERVICES AND
SUPPLIES PTY LIMITED
And: TRISON HOLDINGS PTY LIMITED (trading as DYNA ENGINEERING
WA; GIANGREGORIO MASSAROTTO; NICARO HOLDINGS PTY LIMITED, MATFLO
ENGINEERING PTY LIMITED AND RICHARD COUPER
Nos. G 212 and G 427 of 1988
FED No. 74
Patents
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Burchett J.(1)
CWDS
Patents - revocation - inutility - novelty - patent for scraping mechanism
to clean conveyor belts - test for utility - "useful choice" - effect of
"promises" in the specification - principles of construction of claims -
nature of utility asserted in specification - whether unlawfulness of taking
advantage of ability to maintain conveyor while in motion, offered by the
patent, prevents it being useful - combination invention - whether, in respect
of novelty prior patents could be considered together because of a reference
in one to others - rejection of the use of such a reference where the
reference contains no suggestion that the integers should be brought together,
at least a real link being requisite - meaning of "sleeve" - whether, where
there is a missing integer in a prior device which it would be obvious to
supply, novelty can still be denied - whether it is necessary rather that the
difference between the prior device and the patent be insubstantial - tests
for anticipation - obviousness - whether a device was part of "common general
knowledge" - evidence of a known need and of commercial success of claimed
invention.
Patents Act 1952, s.100(1)(e),(g),(h).
HRNG
SYDNEY
#DATE 14:3:1989
Counsel for the Applicants/First Mr D.K. Catterns
and Second Cross-Respondents:
Solicitors for the Applicants/First: Williams Niblett
and Second Cross-Respondents:
Counsel for the Respondents/ Mr T. Simos QC with
Cross-claimants (G.212 of 1988): Mr J.L.B. Allsop
Solicitors for the Respondents/ Phillips Fox
Cross-claimants (G.212 of 1988):
Solicitor for the third Williams Niblett
Cross-respondent:
Solicitor for the Respondents/ Mr R.T. Gregory
Cross-claimants (G.427 of 1987):
ORDER
The cross-respondents bring in short minutes of orders to reflect the
decision of the court.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal
Court Rules.
JUDGE1
These are two suits for infringement of the same patent, in each of which
there is a cross-claim seeking revocation of the patent on the grounds of want
of utility, lack of novelty and obviousness. The course was taken of hearing
first the evidence and argument in relation to these matters, postponing the
other questions which arise in the suits. For the purpose of the separate
questions so heard, it was ordered that the evidence in one proceeding be
evidence in the other.
2. The patent is a convention patent, number 512902, the priority date of
which is 10 January 1977. The patentee is Martin Engineering Company, an
United States corporation, the first applicant, and the second applicant is
the holder of an exclusive licence in respect of it. I shall refer to the
patent as the Martin patent.
3. The evidence shows that conveyor belts used in the mining industry and
elsewhere for the transport of materials require to be cleaned, generally by
some form of scraping, at a point at or near the commencement of the return
run of the belt after discharge of its load. Various problems are associated
with this operation. The load may leave a residue which may build up on the
scraper or scrapers, and on the means by which they are applied to the belt.
Maintenance may be rendered more difficult by constriction of space under and
in the vicinity of the belt, and particularly at the point of discharge of its
load. The minimisation of loss of the productive operation of the belt during
any stoppage for maintenance of scraping equipment is a consideration of some
importance.
4. It appears that a number of devices have been adopted - from quite
primitive scrapers knocked up in a mine workshop to relatively complex
equipment. Patents obtained in respect of such equipment span a period of
over forty years up to 1977.
5. The Martin patent is in respect of an invention entitled "Belt Cleaner
Mounting Arrangement", being, as it is described in the abstract of the
disclosure, "a track mounted conveyor belt cleaner wherein individual belt
scraper blades are affixed to sleeve members which slide linearly along a
support member positioned generally transverse to the direction of travel of
the belt to be cleaned. The sleeves are slidably mounted on the support
member such that they may freely slide from one end to the other but are fixed
against either rotational or vertical movement and provide for repair or
replacement of wiper blades without requiring conveyor belt shutdown."
6. There is in the specification a recital of the prior art, suggesting that
many arrangements "have presented certain problems with respect to repair or
replacement of individual blade elements." It is stated:
"Sometimes the wiper blades are carried on one
end of a torsion spring. The other end of
the spring is affixed to a transverse
support. Such an arrangement is illustrated
in U.S. Patent 3,342,312. As the wiper
blades wear, periodic replacement is
required. Occasionally a wiper blade becomes
damaged during regular use and the individual
blade must be replaced. In either of these
situations the conveyor belt must be shutdown
(sic) and one of two alternatives is
presented to the belt operator. If access
permits, the operator may be able to
disconnect the individual wiper blades from
the support shaft and replace them as needed.
In the majority of situations however, access
to the underside of the conveyor belt is
limited and the entire support shaft must be
removed from the side of the conveyor
housing. This is often difficult to
accomplish because of limited space. The
time lost for conveyor shutdown due to wiper
blade replacement is a critical factor to be
considered.
It is therefore an object of the present
invention to provide a belt cleaner mounting
arrangement which will obviate or minimise
the foregoing disadvantages in a simple yet
effective manner or which will at least
provide the public with a useful choice."
7. There follows a consistory clause in the following terms:
"Accordingly the invention consists in
apparatus for cleaning a conveyor belt
comprising a linearly extending support
member adapted to be positioned beneath the
conveyor belt in use and generally transverse
to the direction of the conveyor belt travel;
at least one sleeve member mounted on the
support member for sliding movement
therealong, the sleeve member being arranged
to cooperate with the support member to
prevent rotation of the sleeve about the
support member when mounted thereon, mounting
means on the sleeve members, one or more belt
cleaning elements mounted on the mounting
means, and an adjusting element operable on
the support shaft for bringing the belt
cleaning elements into engagement or out of
engagement with the conveyor belt."
8. The body of the specification then proceeds to describe "one preferred
form of the invention". In this form, there is a support member beneath the
return run of the belt adjacent to the roller at the discharge end of the
belt. The support member is transverse to the direction of travel of the
belt, ie parallel to the roller. It is a tubular hollow shaft with a
projection forming a key beneath its lower surface along substantially its
length. Upon this support member are slid a number of sleeves in the shape of
tubes having a slightly larger diameter than the shaft, so as to fit over it,
with a channel cut out at the bottom to enable them to slide past the key,
which then prevents them revolving round the shaft. At the top of each sleeve
there is provided a fixing means to enable a scraper blade to be bolted to the
sleeve (or in a more complex version to enable a torsion arm bearing a scraper
blade to be bolted to the sleeve). The specification states: "For purposes
of illustration three such sleeve members ... are shown ... but the number
will vary depending upon the width of the belt to be cleaned, the width of the
scraper blades and a number of other factors." In the preferred embodiment,
these sleeve members are linked for simultaneous movement along the support
shaft, being designed to slide freely along it. But rotation is prevented by
the key, so that when the support shaft is itself either rotated or lifted to
bring the scraper blades into contact with the belt a predetermined angle of
contact will be maintained.
9. The preferred embodiment includes, too, a flexible cable passed through
the hollow centre of the support shaft and hooked at each end to the edge
nearest that end of the nearest sleeve member. If the members are then
connected, this facilitates adjustment of the position of the group of members
relative to the conveyor belt to be cleaned.
10. The preferred embodiment also involves a fairly complex mechanism for
raising and lowering the support shaft at each end by the use of a jacking
screw.
11. A modified embodiment is described in which each wiper blade is carried
on a torsion arm instead of being mounted directly to the sleeve.
12. In another modified embodiment, the support member is formed of a tubular
section with a piece of angle iron welded to the top of it, and the
configuration of the sleeve is altered to fit over (and round the edges of)
the piece of angle iron, as an alternative to having sleeves of a circular
cross-section with a keyway to fit a key attached to the support member.
13. The body of the specification concludes:
"Various features of the invention have been
particularly shown and described in
connection with the illustrated embodiments
of the invention, however, it must be
understood that these particular arrangements
merely illustrate and that the invention is
to be given its fullest interpretation within
the terms of the appended claims."
14. The claims are the following:
"1. Apparatus for cleaning a conveyor belt
comprising a linearly extending support
member adapted to be positioned beneath the
conveyor belt in use and generally transverse
to the direction of the conveyor belt travel;
at least one sleeve member mounted on the
support member for sliding movement
therealong, the sleeve member being arranged
to cooperate with the support member to
prevent rotation of the sleeve about the
support member when mounted thereon, mounting
means on the sleeve members, one or more belt
cleaning elements mounted on the mounting
means, and an adjusting element operable on
the support member for bringing the belt
cleaning elements into engagement or out of
engagement with the conveyor belt.
2. A mounting arrangement for conveyor belt
cleaners as in claim 1 including cable means
connectable to at least one of said sleeve
members for moving said sleeve member along
said support member.
3. A mounting arrangement for conveyor belt
cleaners as in claim 1 including connector
means linking adjacent sleeve members for
simultaneous movement along said support
member.
4. A mounting arrangement for conveyor belt
cleaners as in claim 2 in which said cable
means is a flexible cable connected at each
end thereof to a sleeve member.
5. A mounting arrangement for conveyor belt
cleaners as in claim 1 including a torsion
spring arm connected at one end to a belt
cleaner blade and at the other end to said
mounting means.
6. A mounting arrangement for conveyor belt
cleaners as in claim 1 in which said means
for preventing rotation of said sleeve
members about said support member also
prevents relative vertical movement of said
sleeve with respect to said support member."
15. The cross-claimants' first ground of attack on the patent is the ground
referred to in s.100(1)(h) of the Patents Act 1952, "that the invention, so
far as claimed in any claim of the complete specification ... is not useful".
The cross-claimants draw attention to the words in the complete specification:
"It is therefore an object of the present invention to provide a belt cleaner
mounting arrangement which will obviate or minimise the foregoing
disadvantages in a simple yet effective manner or which will at least provide
the public with a useful choice." The "foregoing disadvantages" are conveyor
shutdown, difficulty of disconnection of individual wiper blades from the
support shaft, and "in the majority of situations" limited access to the
underside of the conveyor belt and necessity to remove the entire support
shaft from the side of the conveyor housing, which is "often difficult to
accomplish because of limited space." The ultimate disadvantage is "time
lost".
16. The cross-applicants' first point is that, as regards one form of the
prior art, a cleaner known as the Stephens-Adamson cleaner, it is, so they
assert, simply incorrect to suggest that the entire support shaft would
require to be removed. In the case of that cleaner, there is what is called a
"cross-angle" upon which the individual cleaning elements are supported, and
it is this which would have to be removed, not the support shaft. The
cross-applicants argue that an invention cannot be useful by overcoming a
disadvantage which does not exist. Later in these reasons, I shall examine,
in connection with another argument, the operation of the Stephens-Adamson
cleaner, the principle of which is described in two patents referred to as the
Reiter patent and the later Sinden patent. For the present, it is sufficient
to say that it would be a distortion of ordinary principles of construction to
construe the language of the patent in suit by reference to distinctions drawn
in the language of another patent. The draftsman of the specification of the
Martin patent, when he talked about "many varied arrangements ... in the prior
art for mounting conveyor belt cleaners on a support member", clearly referred
to that on which the cleaning elements themselves were mounted as the "support
member". It is the removal of this member which he saw as involving a
difficulty, and the evidence before me confirmed that it may indeed, in
practice, present a problem because of lack of space in which to work in the
area where the cleaner is located. That part, the removal of which is
suggested to involve that difficulty, is called, by the draftsman of the
specification of the Reiter patent, a "cross-angle". It is nonetheless a
"support member" or "support shaft" within the meaning of the patent in suit.
17. In any case, a large number of different devices existed at the priority
date of the Martin patent. The statement made in the complete specification
refers to the "majority of situations"; if one cleaner, out of many types in
use, had already solved the problem in a different way, that would not make a
second solution useless. In reality, at the priority date Stephens-Adamson
cleaners were such a rarity that two highly qualified experts, one giving
evidence for the applicants and one for the respondents, as well as other
witnesses of great experience in the industry, had never heard of them. Even
on the basis that the Stephens-Adamson cleaner does not require removal of the
support shaft, unless the complete specification is to be read as limiting the
utility it claims to the particular advantage in respect of the support shaft,
as an advantage over all other possible cleaners, this ground of attack must
fail. I do not think the language is so intractable. What is stated is that
all the prior art "presented certain problems with respect to repair or
replacement of individual blade elements." A particular problem instanced is
the difficulty caused by limited space. This difficulty, on the evidence, may
in fact exist with every form of the prior art spoken of at the hearing. In
particular, the cross-angle of the Stephens-Adamson cleaner, whether or not it
is properly to be described as a support shaft or support member, is
necessarily of a length which would present a problem in the situation,
referred to in the complete specification, of a conveyor housing to the side
of which there is limited space. There was proof that a situation of that
kind is common.
18. But the cross-claimants then say that claim one of the Martin patent
refers to "at least one sleeve member mounted on the support member for
sliding movement therealong". They point out that, though the body of the
specification clearly enough indicates that it would normally be desirable to
use a number of sleeve members, and this is the way in which in practice the
device marketed by the applicants works, the claim includes a device with one
sleeve. That particular form of the invention as claimed would, it is argued,
involve a problem of space quite similar to that involved with the
Stephens-Adamson cleaner. The argument envisages the installation of a
cleaner constructed according to the physical requirements of claim one, but
in complete disregard of the principle upon which the invention set out in the
specification works. I have no doubt that, when the draftsman used the
expression "at least one sleeve member" in claim one, he had in mind his
statement in the specification: "the number (ie of sleeve members) will vary
depending upon the width of the belt to be cleaned, the width of the scraper
blades and a number of other factors." The recital of the prior art makes it
clear that prominent among those other factors would be the amount of space
available in respect of the particular conveyor belt at the location where the
cleaner might be installed. Clearly enough, in the case of a narrow belt,
with adequate space, a single sleeve member might be satisfactory,
particularly if the length of the sleeve itself were not unnecessarily
designed as co-extensive with the length of the wiper blade affixed to it.
19. The cross-claimants make a further point. The specification does not
refer only to the difficulty of servicing the equipment; it also specifically
refers to "time lost" in doing so. The cross-claimants called evidence which
asserted that the Stephens-Adamson cleaner would permit replacement of wiper
blades more quickly than is possible according to some embodiments of the
invention in suit. It is common ground that the device marketed by the
cross-respondents involves an arrangement not shown in the specification
(which they claim is a workshop improvement) enabling a sleeve member to be
simply slid and lifted off the support member. This is accomplished by a
variation in the construction of the support member and sleeves. A piece of
angle iron or flat bar is welded to a pipe, and the sleeve is made to slide on
the angle iron or flat bar which terminates before the point at which the pipe
is supported, so as to leave a gap fractionally longer than the length of the
sleeve. An alternative way of accomplishing the same objective, with a piece
of equipment built more closely in line with the preferred embodiment set out
in the complete specification, would be to have the support attached to the
underside of the key, referred to in the description of that embodiment, so
that the sleeve would not be impeded by the attachment of the support from
sliding off the end of it. It was not clear to me from the evidence whether
the device has actually been constructed in this alternative way. However, Mr
Law referred to it as a method of construction, and it seems clearly
practicable. Another variation which has been adopted by the
cross-respondents relates to the means of bringing the apparatus into
engagement or out of engagement with the conveyor belt. As I have said, the
preferred embodiment refers to a jacking screw. In practice, the method
employed in order to bring the scraping elements into and out of contact with
the belt has been by rotating the support shaft.
20. The question, of course, is not whether the particular version or
versions of the invention in fact marketed will work; the question is whether
any version constructed in accordance with claim one will work. There was no
suggestion that any such embodiment of the invention would not work, if that
means that it would not provide an effective belt cleaner the appropriate
maintenance of which would be practicable. In other words, there was no
challenge to utility in the sense that the invention is capable of making "the
wheels ... go round", to use the often quoted metaphor of Maugham L.J. in The
Mullard Radio Valve Company Limited v. Philco Radio and Television Corporation
of Great Britain Limited (1935) 52 RPC 261 at 287. It has been said that this
is what is required for immunity against attack on the ground of inutility -
not that an invention is commercially practicable: ibid; Lane Fox v.
Kensington and Knightsbridge Electrical Lighting Company (1892) 3 Ch 424 at
431. But the cross-claimants say that the specification promises to overcome
the difficulty of the time taken to remove scraper blades from belt cleaners,
particularly in confined spaces. They contend the invention, as claimed in
claim one, includes apparatus which would not be useful in the required sense,
because it would not do what the specification says it will do.
21. The argument rests on twin foundations, both of which must support it if
it is to stand. One foundation is the nature of the utility asserted for the
invention in the specification; the other is the construction of claim one for
which the cross-claimants contend.
22. As regards the utility asserted by the patentee in the specification, in
my opinion the argument gives an unduly narrow construction to the document.
What the specification asserts is that the invention will "obviate or
minimise" the disadvantages referred to "or ... at least provide the public
with a useful choice." It is plain that, in some circumstances, the invention
will enable those parts of the apparatus bearing scraper blades to be arranged
in multiples of relatively short length so as to facilitate removal in a
confined space, and that it makes possible replacement of individual blades
without the unbolting of the blades themselves at the site. It may or may not
require, depending upon the particular embodiment of the invention, the
removal of bolts at the side of the housing of the equipment. What this means
is that an alternative method is provided - on the face of it, a practical
choice which a belt operator might wish to adopt in particular circumstances.
As Fletcher Moulton L.J. made clear in British Liquid Air Company Ld v.
British Oxygen Company Ld (1908) 25 RPC 577 at 607, (in a judgment described
by Lord Loreburn when the case went on appeal to the House of Lords as
"illuminat(ing) this entire subject" (26 RPC at 528)), to give "to the public
a useful choice" is "all the meritorious utility requisite to support a
Patent." In strictness, the pledge in the present case, expressed in the
alternative, professes to do just that. So understood, it is not falsified by
the evidence; and it follows that the attack on the utility of the invention
fails.
23. I am, in any case, by no means satisfied the other foundation of the
cross-claimants' argument on utility is sound. It is true that, for the
purposes of utility, it is necessary to consider what on their correct
construction is specified in the claims; if on their correct construction they
assert a monopoly, not only in respect of something useful, but also in
respect of something not useful, the patent is bad: Blanco White on Patents
for Inventions, fifth edition (1983) ss.4-408 to 4-412. In Norton and Gregory
Ld v. Jacobs (1937) 54 RPC 271 at 276-277 Lord Greene M.R., speaking for the
Court of Appeal, held that a claim for a process which included the words
"wherein there is present ... a reducing agent" could not be cut down to avoid
inutility by limiting it to those processes in which there was present a
reducing agent that would work. It was held not to be enough that "a skilled
chemist would avoid working in part of the area which the words in their
ordinary meaning are wide enough to include." But Lord Greene was not
eschewing the ordinary processes of construction of a document; he was
asserting that the claims have to be read in the light of their function, that
is "to define with clarity the area of (the) monopoly." He emphasized: "It is
illegitimate to whittle away clear words in a claim by reading into them
glosses and limitations extracted from the body of the Specification whose
function is in its essence different from that of the claim."
24. This reasoning, of course, cannot be applied where the words in the claim
are not "clear words", nor does the reference to the peculiar purpose of the
claims mean that they are to be construed without regard to the specification
of which they form part. See Blanco White, op. cit. ss.2-101 to 2-104, and
see Henriksen v. Tallon Limited (1963) RPC 329 at 335. In British
Thomson-Houston Co Ld. v. Guildford Radio Stores (1937) 55 RPC 71 at 88,
Luxmoore J. affirmed the necessity "to remember that the claims of a
specification must be considered in the light of what an intelligent person
skilled in the particular art to which they relate and desirous of making use
of the invention would do"; "to introduce into every claim limitations
dictated by common sense after a persual of the whole of the Specification
including the claims; and ... that a claim is not to be invalidated for
vagueness or ambiguity by reason of the fact that it is possible to imagine
debatable territory where the advantages of the invention may not be
obtained." In Welch Perrin and Company Proprietory Limited v. Worrel (1961)
106 CLR 588 at 601-602 Menzies J., as to whose decision on the point the Full
Court at 622 had "no doubt", said:
"The lack of utility alleged did not go beyond
the suggestion that the claims were so
general that an unworkable machine could be
made in conformity therewith. ... The
principle that all within the scope of the
claim must be useful if the claim is not to
fail for inutility was invoked and reference
was made to Norton and Gregory Ltd v. Jacobs
and other cases which show that a claim is
bad if it covers means that will not produce
the desired result even if a skilful person
would know which means to avoid."
After referring to a particular suggestion of a useless machine that could be
constructed according to the claim, he said:
"I consider, however, that no one reading the
specification would so understand it and that
a very ordinary person would know what was a
workable angle. What I have quoted from the
Master of the Rolls (this was a reference to
the Norton and Gregory case) does not mean
that a specification should be construed in a
way that any sensible person would appreciate
would lead to unworkability when by
construction it could be given a more limited
meaning."
It will be noted that in this passage Menzies J. said "no one reading the
specification would so understand it," thus making it plain that he regarded
the specification as legitimately throwing light on the true meaning of the
claim. This decision was cited by Stephen J. in Washex Machinery Corporation
v. Roy Burton & Co Pty Ltd (1974) 49 ALJR 12 at 18-20, where he also
distinguished the Norton and Gregory case, dismissing a suggested type of
useless machine, constructed according to the claim, as one which would only
be produced "by a quite purposeful adoption of such a form ... as would
obviously malfunction". He commented:
"To postulate such a happening is not an
appropriate mode of testing validity of a
patent specification."
25. In my view, it is quite apparent from a reading of the whole
specification in the present case how the invention enables the number of
sleeves to be related to the width of the belt to be cleaned and the space
available. To adapt the words of Stephen J., only by a quite purposeful
selection of an inappropriately large sleeve could the result for which the
cross-claimants contend be produced. Even if, in deference to the Norton and
Gregory case, attention is focussed single-mindedly on the claim, the words
"at least one sleeve" must direct the attention of the skilled reader to the
fact that a selection has to be made of the appropriate number for the job; in
other words, he is inevitably cast back to the specification which makes plain
the criteria of appropriateness. In terms of Lord Greene's formulation of the
principle, this is to narrow the claim by a process of construction in the
light of the rest of the document of which it forms part, and not
impermissibly to place a gloss upon it.
26. In supplementary written submissions, counsel for the cross-claimants
placed reliance, in addition to the matters already discussed, on two further
points: that according to some witnesses the invention required the
incorporation of some kind of device, such as a pin, to prevent the sleeve
members moving laterally out of their correct position by reason of variations
in the tracking of the belt; and that the prospect offered by the
specification of blade removal without the stopping of the belt could not be
realized by reason of safety factors and the regulations governing the
operation of belts in the various states of Australia.
27. The first point was disputed by Mr Law, who said he had seen many
examples of the apparatus working without such a device. I accept his
evidence. I do not doubt that the alleged difficulty would on occasion arise,
but this is not sufficient to destroy the utility of an invention which would
otherwise work without difficulty. Somewhat inconsistently, the
cross-claimants at the same time alleged that the sleeves would be liable to
resist movement on the shaft, even when removed from contact with the belt,
thus reducing the time advantage in the changing of scraper blades claimed for
the invention; if so, the frictional resistance when the blades are applied
with some force, during operation, at an angle to the underside of the belt
would inhibit lateral movement. In any case, the most unimaginative workman
could devise a pin or even use a piece of timber as a stopper to prevent the
suggested lateral movement. In the case of the embodiment shown in the
specification of the patent which involves the use of a flexible cable, the
mere tying of the slack tightly to a fixed part of the frame of the apparatus
would be an adequate means of preventing lateral movement of the sleeves.
28. The point about the stopping of the belt does not, of course, answer the
proposition that the invention offers a useful choice; the device does so
whether or not it enables certain maintenance operations to be carried out
without stopping the belt. Counsel for the cross-respondents also drew
attention to the fact that many patents, particularly in the area of drugs,
involve advantages which it is unlawful to utilize as at the priority date,
and for some time thereafter; they nevertheless offer useful possibilities
which may result in changes to regulations to permit those possibilities to be
realized. It is unnecessary to pursue this aspect of the matter, having
regard to my view that the invention in any case offers a useful choice, even
if there can be no question of carrying out any maintenance while a conveyor
is in operation. Part of the advantage of that choice, compared with many
other cleaners used in practice, is that the exchange of slidably mounted
sleeve members, complete with attached scraper blades, for elements containing
worn blades, would enable a worn blade to be replaced without the removal of
possibly rusted, dirt-encrusted, or otherwise stiffened blade attachments
beneath the belt.
29. The cross-claimants also attacked the patent on the ground specified in
s.100(1)(g) of the Patents Act, "that the invention, so far as claimed in any
claim of the complete specification ..., was not novel in Australia on the
priority date of that claim."
30. Reliance was placed on a number of alleged anticipations, with which I
shall deal seriatim.
31. The first matter relied on, as revealing an anticipation, is a patent
which was referred to as the later Matson patent. This patent is United
States Patent No. 3,674,131, the specification of which became open to public
inspection in the Australian Patent Office, Canberra, on 9 March 1973.
32. Counsel relied on two particular references in the specification of the
later Matson patent, one under the heading "Summary of the Invention", and the
other in a statement of the alleged advantages of the invention, to "axial
assembly and disassembly". He said this was simply different language meaning
the same thing as the reference to "at least one sleeve member mounted on the
support member for sliding movement therealong" in the specification of the
patent in suit, and claimed that all the other elements of claim one of the
Martin patent were to be found in the later Matson patent - with the possible
exception of "an adjusting element operable on the support member ... ". For
the cross-respondents, on the other hand, it was pointed out that nothing in
the specification suggested that the later Matson patent had anything to do
with the concept embodied in the Martin patent of the sliding of sleeve
members, bearing cleaning elements, into and out of position along the support
shaft.
33. Under the heading "ABSTRACT", the invention the subject of the later
Matson patent is described as:
"An improved mount for a conveyor cleaner arm
featuring a split tube about a torsionally
elastic torus and wherein the arm is rigidly
secured to the tube, as by welding, across
the split or gap so as to fix the gap
dimensionally whereby the gap provides a
keyway to receive a key on the exterior of
the torus."
This, as a reading of the specification quickly shows, refers to a
sophisticated means of elastically mounting the scraper blades. It is not
concerned with the problem of ready removal of the entire mount, bearing the
individual blade, from the rigid support member in a simple fashion, without
going under the conveyor, which is an important aspect of the patent in suit.
When the specification of the later Matson patent is studied, it becomes
apparent that the references in it to axial assembly and disassembly are not
references to the attachment to the support shaft at all, but to the assembly
and disassembly of the complex elastic mount itself. The mount is attached to
the support shaft on what are described in the specification as "brackets".
34. In the first preferred embodiment of the later Matson patent, the support
shaft is shown as of square cross-section, and the bracket is fitted to it by
an attachment which encompasses it, having the same cross-section. I do not
doubt that in some contexts that attachment could be described as a sleeve.
In the case of the specification of the later Matson patent, however, it is
shown with a bolt going through it and the support shaft, so that it is firmly
attached and cannot slide at all. There is no suggestion in the specification
that it is intended to be slid into position, or out of position, at any time
during the period when the cleaner is installed. To the contrary, the
emphasis in the specification upon the axial assembly and disassembly of the
part attached to the bracket makes it clear that the intention is to effect
those operations with the bracket already in place. There is nothing to
suggest that it would not be fixed prior to the installation of the support
shaft, and retained at all times until after removal of the support shaft,
should that event ever occur. That there is no thought of a "sleeve member
mounted on the support member for sliding movement therealong" is also
confirmed by a second preferred embodiment, in which the bracket could by no
stretch of the imagination be described as a sleeve member. In that case, it
involves a clamp gripping a tubular support shaft, to which it is immovably
fixed by the tightening of two bolts, one on each side.
35. Counsel for the cross-claimants suggested that this second embodiment
would involve "an adjusting element operable on the support member", so as to
anticipate this integer also of the patent in suit. However, any adjustment
achieved by varying the tangent at which the scraper is clamped to the support
would be operable on the scraper mounting system, and not on the support
member, which would remain fixed, whereas the invention the subject of the
suit involves a means of adjustment operable on the support shaft itself
(referred to in claim one as a support member). In any case, it does not seem
to me that the clamp in the second preferred embodiment of the later Matson
patent is an adjusting means for bringing the belt cleaning elements into
engagement, or out of engagement, with the conveyor belt. It is nothing but a
means for rigidly attaching the bracket to the support shaft, and it is the
position of the support shaft which must determine whether the cleaning
elements engage the belt. No adjusting means in respect of that engagement is
referred to in the specification of the later Matson patent. In particular,
the specification does not suggest that the function of the clamps in the
second preferred embodiment, which it still calls "brackets", differs from
that of the attachments in the first by providing a means of adjustment.
36. The specification of the later Matson patent commences with a section
headed "BACKGROUND OF THE INVENTION". In this section, it is noted that the
theretofore common method of cleaning conveyor belts involved "spring-pressed
scraper blades" mounted on arms "bias(sed) ... into engagement with the belt
by metallic coil springs." In that context, it is then stated:
"A representative prior U.S. Pat. is that to
C.G. Matson, No. 3504786, and consider also
the art cited in that patent. All of these
use coil springs in one form or another and
means are provided for adjusting the
spring-load. These prior structures are
generally satisfactory, but it has been found
that they leave room for improvement in the
areas of manufacture, economy, ease of
assembly and disassembly, etc."
On the basis of this reference to what may be called the earlier Matson
patent, and citing George C. Warner Laboratories Pty Ltd v. Chemspray Pty Ltd
(1967) 37 AOJP 2513 at 2516, counsel for the cross-claimants contended that it
was permissible, for the purposes of his argument on the issue of novelty, to
read the later Matson patent with the earlier Matson patent, and indeed to
read both with patents referred to as the Reiter patent and the earlier Sinden
patent by reason of further references to them in the earlier Matson patent.
The specifications of the earlier Matson patent, the earlier Sinden patent,
and the Reiter patent became open to public inspection, respectively, in the
Australian Patent Office, Canberra, on 3 August 1971, on 4 March 1935, and on
29 February 1968.
37. So far as the earlier Matson patent is concerned, counsel for the
cross-claimants referred to this because it shows methods of adjustment by
rotation of a support member bearing a number of scraper blades. Under this
invention, the scraper blades are held in firm contact with the belt, either
by the rotation of their support and the fixing of it in the appropriate
position by the tightening of a nut on a bolt able to move through an arcuate
slot, or by a lever one end of which is attached to the support shaft and the
other to a turnbuckle, or similar mechanism for pulling the lever, so as to
enable the shaft to be rotated, bringing the blades into firm contact with the
belt. A more complex means is also described in this patent, involving the
use of a spring-loaded fluid-pressure motor, responsive to a timing device, by
which the support is intermittently rotated to bring the blades into contact
with the belt and then rotated out of contact, in order to achieve
intermittent scraping.
38. Counsel for the cross-respondents argued that it is impermissible to read
several patents together, even where they contain cross-references in relation
to particular issues, in order to deny novelty to a combination patent. But
he also pointed out that the earlier Matson patent specification, although it
involves a rotatable support shaft, makes no mention of that feature as a
means of facilitating withdrawal of slidably mounted parts by first releasing
their contact with the belt. Its concern is the opposite - that is to say, it
is concerned with "means for applying pressure to a blade-mounting support" so
that the scraper will scrape. For removal, it adopts the entirely different
approach of taking out the support shaft itself. The specification says: "It
is advantageous to be able to mount the supports (ie the supports bearing the
arms to which scrapers are attached) for ready removal." The parts bearing
the scrapers are, in the first Matson patent, "rigidly affixed to the
support".
39. Similarly, the earlier Sinden patent (which relates to a much older
device in respect of which the U.S. patent was applied for in 1932) envisages
a horizontal support member with arms bearing scrapers bolted to it, this
horizontal member being lifted through an arc by pivoted supports, raised by
threaded screws, in order to force the scraper blades against the belt. In the
same patent, an alternative is shown involving the use of a counterweight as a
flexible means of applying pressure - flexibility being regarded as desirable
because of inequalities in the belt surface due to wear.
40. The Reiter patent was relied on by the cross-claimants, both as a
document referred to in the earlier Matson patent and also as in itself an
anticipation of the invention in suit. The reference in the earlier Matson
patent to the Reiter patent and the earlier Sinden patent is quite tangential.
A feature of the earlier Matson patent is that it involves the use of scrapers
on both surfaces of the conveyor belt, and not merely, as with all the other
cleaners to which reference was made in the evidence, the load bearing
surface. Under the heading "BACKGROUND OF THE INVENTION", the specification
of the earlier Matson patent refers to the need to scrape accumulated material
from belt conveyors, and states: "Several such scrapers have been patented,
primarily as evidenced by such U.S. patents as (the earlier Sinden patent and
the Reiter patent), but all of these operate on the principle of cleaning the
under or bottom surface of the return run of the belt, because, obviously, to
scrape the top surface of the upper or delivery run is merely to scrape off
the material being conveyed. So far as is known, no patentee has recognized
the need for scraping the inside of the belt; that is, either the underside of
the delivery run or the topside of the return run."
41. Whatever else may be said of the Chemspray decision, and of similar
statements such as that in Blanco White op. cit. s.4-107, it is not at all
obvious that the decision can have any application to a reference of this kind
in one specification to another, particularly in the case of a combination
patent. All of the integers of a combination patent may be old (Minnesota
Mining and Manufacturing Company v. Beiersdorf (Australia) Limited (1980) 144
CLR 253 at 266), the interaction of the combined integers to produce a new
result constituting the invention. If some only of the integers are disclosed
in one specification, a reference of the kind in question here to another
specification, which contains the remaining integer or integers, no more
discloses the combination than does the knowledge possessed by the expert in
the area of each of the old integers. Such a reference contains no suggestion
whatever that the different integers should be brought together. Indeed, the
reference in the specification of the earlier Matson patent to the still
earlier patents of Reiter and Sinden is simply dismissive. The logic which
forbids the assembly of previously known specifications into a mosaic of the
invention, in order to deny its novelty, is not less offended when those
specifications are linked only as antitheses. At the least, a real link is
requisite: Minnesota Mining and Manufacturing case at 292-293, 298.
42. The Reiter patent relates to a cleaner the manufactured version of which
was the Stephens-Adamson cleaner, already mentioned, and there was evidence
that a number (though perhaps not many) of these had been sold in Australia
prior to the priority date. Another U.S. patent, for the earliest version of
the Stephens-Adamson cleaner, was referred to as the later Sinden patent. The
specification of that patent became open to public inspection in the
Australian Patent Office, Canberra, on 27 February 1958. It was not suggested
by counsel for any party that, for present purposes, a significant distinction
should be drawn between the two patents relating to cleaners of the
Stephens-Adamson type. Each involves a supporting pipe transverse to the
conveyor belt, held at either end by attachment to a vertical support with a
series of holes drilled in it, so as to make provision for raising and
lowering the pipe. Another support, of a length at least equal to the width
of the belt, rests on the supporting pipe. That other support is called, in
various parts of the specification of the Reiter patent, "the supporting
frame", "a support adapted to be mounted transversely of the belt to be
cleaned", "the support", "an elongated support member, holder or cross-angle".
It is of L-shaped cross-section, and has fixed to it a number of C-clips
(catalogues with illustrations of the Stephens-Adamson cleaner show two
C-clips), so that when it sits on the pipe support the two surfaces presented
by its L-shaped cross-section encompass about half of the circumference of the
pipe support, which the C-clips enable it to grip by partially completing that
encompassment. As the specification says:
"The holder ... is mounted to rotate and to
slide on the supporting pipe ... by a
plurality of C-clips ... fixed to the holder
... ."
At one end of the holder there is a mechanism comprising a lever, arcuate
slot, and wing nut, by means of which the scraper blade pressure may be
regulated by rotating the holder on the pipe support. In the Reiter patent,
the arms bearing the scraper blades are "fixedly connected to the supporting
frame," that is to the holder. The specification refers to a method for
"fixedly connecting one end portion to the support" by the use of mounting
eyelets by which it is bolted to the support. The method of getting access to
work on the scraper blades of the Stephens-Adamson cleaner for maintenance is
simple, but it obviously requires space beside the conveyor belt comparable to
the width of the belt itself, for the holder (with its attachments) has to be
slid off the pipe support, after removal of the wing nut on the bolt in the
arcuate slot which fixes the whole apparatus in position.
43. Counsel for the cross-claimants submitted that the later Sinden and
Reiter patents, and the Stephens-Adamson cleaner to which they relate,
constitute anticipations denying novelty to the patent in suit. He submitted
that the holder, with its C-clips, constituted a "sleeve member mounted on the
support member for sliding movement therealong", as specified in claim one of
the Martin patent. I have some difficulty in so regarding it. The relevant
meaning of the word "sleeve", as given in the Shorter Oxford English
Dictionary (1980), is "a tube, or hollow shaft, fitting over or enclosing a
rod, spindle, etc., and designed to protect or strengthen it, or to connect
one part with another." Quite similar definitions are to be found in
Webster's New International Dictionary (1958), The Macquarie Dictionary and
the McGraw-Hill Dictionary of Scientific and Technical Terms. See also
Chambers' Dictionary of Science and Technology. Certainly, the specification
of the Martin patent does not use the word in a very strict sense, but a piece
of angle iron with an L-shaped cross-section is not a sleeve, though resting
on a pipe. I do not think it becomes a sleeve because there are disposed
along its length a series of C-clips, which do partially encompass the pipe.
44. But, in any case, I think there is an insuperable difficulty in the way
of regarding the Stephens-Adamson cleaner as an anticipation of the
cross-respondents' invention. It is not enough that there be a sleeve member
mounted on the support member for sliding movement therealong; it is also
requisite that "the sleeve member (be) arranged to co-operate with the support
member to prevent rotation of the sleeve about the support member when mounted
thereon". By contrast, the Stephens-Adamson cleaner requires rotation of the
holder about the pipe support as its means of achieving adjustment of the
pressure exerted by the wiper blades on the belt. Both the specification of
the later Sinden patent, and the specification of the Reiter patent, expressly
state that the holder "is mounted to rotate and to slide on the supporting
pipe". What fastens the apparatus in position, when the right position has
been achieved, is not any co-operation between a sleeve and that on which it
is mounted, but, as it is expressed in the specification of the later Sinden
patent, "an adjusting lever fixed on one end of the cross-angle, and a wing
nut cooperating with the threaded stud on one of the adjustable angle arm sets
to fasten the wiper assembly in position." It does so because the wing nut
applies frictional force in the area of the sides of an arcuate slot formed in
the lever.
45. Counsel for the cross-respondents submitted that, even more
fundamentally, on a true understanding of the principles upon which the two
types of cleaner operate, the holder of the Stephens-Adamson cleaner is really
a "support member" within the meaning of the patent in suit. It has no sleeve
mounted on it, but has the arms bearing the scraper blades attached to it by
bolting. I think this is in fact the correct way of looking at the matter.
The two types of cleaner are at opposite poles. The cross-respondents'
cleaner has a support member provided with means for bringing it into and out
of adjustment with the belt, and from which the sleeves bearing the scraper
blades may be removed individually for maintenance. The Stephens-Adamson
cleaner also has a support member which may be adjusted by rotating it to
achieve contact with the belt, but in that case the method of removal for
maintenance is by removal of the entire support member with its attachments
bearing the scraper blades. In the case of the Stephens-Adamson cleaner, the
pipe support is really the means by which the support member is held in
position beneath the conveyor belt.
46. If, indeed, the pipe support is regarded, as the cross-claimants'
argument requires it to be, as the support member, on which the holder is to
be regarded as a sleeve, then the Stephens-Adamson cleaner does not have the
last integer of claim one of the Martin patent. For that integer is "an
adjusting element operable on the support member for bringing the belt
cleaning elements into engagement or out of engagement with the conveyor
belt." Although it is true that the Stephens-Adamson cleaner involves a crude
means of adjustment of the position of the support pipe by raising or lowering
its attachment to its vertical supports, this is certainly not provided "for
bringing the belt cleaning elements into engagement or out of engagement with
the conveyor belt." Given that the Stephens-Adamson equipment is held in a
suitable position beneath the conveyor belt in the way mentioned, the method
by which the belt cleaning elements are brought into or out of engagement with
the belt is the rotation of the holder by means of the lever arm, and the
fixing of the rotated position with the wing nut. If the holder is not the
support member, it is clear this is not accomplished by an adjusting element
operable on the support member, but by an adjusting element operable on the
holder, that is, on the cross-claimants' argument, on the sleeve member. As
it is expressed in the specification of the Reiter patent, "the pressure
handle (ie the lever) positions the wiper blade and springarm assemblies for
proper blade pressure and other vertical adjustments."
47. The cross-claimants also relied on anticipation by prior use, not only in
relation to the Stephens-Adamson cleaner, but also in relation to a number of
other cleaners which shared one basic principle. These were the Trelleborg,
Firestone, Skega and Jerry Rig cleaners. Each of these consists of a support
shaft transverse to the belt, on top of which is fixed firmly a thick bar of
hardened rubber, or in the case of the Trelleborg cleaner a series of shorter
lengths of such bars arranged in a manner thought to provide maximum cleaning
effect. In each of these cleaners, the method of fixing the rubber bar or
bars to the support is by bolting. The bolts of course do not pass through
the entire thickness of the rubber bar, which would result in the bolt head
scoring the underside of the conveyor belt. Even if the bolt head were
countersunk, the same result might ensue after a period of wear. The method
adopted, in each case, is to have a T-shaped channel cut in the bottom of the
rubber bar to take the head of a T-bolt, by which the bar is then bolted to
its support. The bolt passes through the support, to be tightened by a nut
underneath. In the case of the Trelleborg cleaner, the T-shaped channel,
which is described in the specification of the Trelleborg patent as "an
outwardly open undercut groove for a bolt", is bonded to the rubber bar by
vulcanization. The Jerry Rig cleaner is the simplest version, since it is
simply knocked up in the workshop of the company operating the conveyor, the
name, as one expert witness suggested, being probably a corruption of the
words "jury rig", the nautical expression for a makeshift mast or rudder. All
of these cleaners use a counterweight or spring to exert the appropriate
degree of force for the application of the scraper to the underside of the
conveyor.
48. Counsel for the cross-claimants argued that each of these cleaners is an
anticipation of claim one. According to his argument, the rubber bar, in the
case of the Skega cleaner, or the metal insert to which the bar is vulcanized,
in the case of the Trelleborg and also the Firestone and Jerry Rig cleaners,
is or involves a sleeve member.
49. The cross-claimants' argument receives some qualified support from an
expert called in their case, Mr Frost, a senior lecturer in mechanical
engineering. Mr Frost described the Trelleborg cleaner as involving "an
extruded aluminium T-slot mounted on a series of T-bolts on the support member
so that they can to some degree be slid on and off; the T-slot being arranged
with the T-bolt in such a way as to prevent rotation of the T-slot about the
support member ... ." He stated of this arrangement:
"In my opinion the Trelleborg T-slot can be
considered to be a generic sleeve member or
is at least functionally equivalent to the
sleeve member referred to in Claim 1 of the
Patent."
50. As against that view, the cross-respondents relied on the affidavit of
Professor Thomas, who added to his theoretical knowledge of engineering a vast
experience in mining, including the design and use of conveyor belt
installations. Professor Thomas did not regard the T-slots in the various
T-bolt systems as "generic sleeve members", or as functionally equivalent to
sleeve members. He stated that the bars in devices of that kind are usually
fixed in position by placing T-bolts along the T-slot, dropping the bolts into
the bolt holes, and then tightening the bolts from underneath by screwing on
the nuts. He considered it difficult, in practice, to slide the bar along
T-bolts already positioned in bolt holes because of a number of factors. In
the first place, it would be necessary to lift each T-bolt head to a position
in the T-slot enabling it to slide freely. Secondly, the T-bolt head would
easily jam. Thirdly, an accumulation of grease, dirt and dust would be apt to
set in the T-slot rendering sliding impossible. Professor Thomas's view is
supported by the affidavit of a Mr Dunn, chief mechanic of the Sinter Plant of
the Rod and Bar Product Division of Broken Hill Pty Limited in Newcastle. The
plant handles large volumes of iron ore on conveyor belts, of which there are
currently 151 in operation. Mr Dunn, in the course of the past twenty-five
years, has seen a large range of conveyor belts and conveyor belt cleaners
throughout Australia. He thought it might be possible to slide the T-slot of
a scraper on the T-bolts, but in his opinion "this would in most instances be
achieved only with a great deal of difficulty." He referred to the build-up
of material along the inside of the T-slot, in the case of the Trelleborg
cleaner, and the tightness of fit in the case of the Dunlop cleaner, which is
a Skega cleaner. He considered it "far easier to replace the scraper blades
of the T-bolt Cleaners by removing the nuts and washers from the holding
T-bolts and lifting the Scraper Blade, complete with the holding T-bolts, off
the support."
51. I accept the evidence of Professor Thomas and Mr Dunn, which seems to me
to accord with the probabilities. Turning then to claim one, I do not think a
T-slot of a T-slot cleaner is a "sleeve member mounted on the support member
for sliding movement therealong". I think, in the case of the T-slot
cleaners, the rubber bar is mounted on the support member by the use of
T-bolts which fix it in position. The function of the T-slot is as a
convenient means of attachment of the bolts. It is interesting to note that
the brochures for the Skega cleaners, manufactured by the Dunlop company, call
the T-bolts "clamps".
52. Furthermore, if the groove or T-slot of a T-bolt cleaner is regarded as a
sleeve, it is a sleeve around the heads of the T-bolts, and co-operates with
the heads of the T-bolts, not with the support member. That co-operation
prevents rotation around the heads of the T-bolts, not around the support
member. The cross-claimants' argument assumed that what was in question was
rotation of the rubber bar about the support member. Claim one of the Martin
patent is concerned with rotation of the sleeve about the support member when
mounted thereon. The T-slot is neither mounted on the support member, nor
does any question of rotation of it about the support member arise. It is
mounted on the heads of the T-bolts which pass through the support member, and
prevented from rotating by the co-operation between those heads and the groove
of the T-slot.
53. But counsel for the cross-claimants urged me, if I rejected the argument
that the T-slot of a T-slot cleaner is a sleeve, to find nevertheless that
these cleaners sufficiently anticipate the invention in suit because, so he
says, it is obvious to have a sleeve as an alternative to the T-slot
arrangement. A similar argument was advanced in relation to the
Stephens-Adamson cleaner. These arguments require some brief examination of
the law in respect of novelty.
54. In Meyers Taylor Pty Limited v. Vicarr Industries Limited (1977) 137 CLR
228 at 235 Aickin J. said:
"The basic test for anticipation or want of
novelty is the same as that for infringement
and generally one can properly ask oneself
whether the alleged anticipation would, if
the patent were valid, constitute an
infringement ... ."
(See also Minnesota Mining and Manufacturing case, supra, at 298.) Aickin J.
proceeded to note that in the Meyers Taylor case "no prior object and no
object according to a prior document involved or incorporated all the integers
of any one of the claims and could therefore possibly constitute an
infringement." This approach suggests that if a sleeve member within the
meaning of claim one arranged to co-operate with the support member to prevent
rotation of the sleeve about the support member when mounted thereon, or that
sleeve member mounted on the support member for sliding movement therealong,
is missing from an alleged anticipation, only a finding that the difference is
insubstantial within the meaning of the authorities would assist the
cross-claimants' case. In the Washex case (supra) at 18, Stephen J. thought
there was a material difference between the patent there in suit and an
earlier specification referred to as the Bochan specification. He said:
"Applying what has been said by the Court of
Appeal in General Tire & Rubber Co v.
Firestone Tyre & Rubber Co Ltd (1972) RPC
457, at p 486, there are in Bochan no 'clear
and unmistakeable directions to do what the
patentee claims to have invented'."
55. When the test whether the alleged anticipation would have been an
infringement of the cross-respondents' patent is being applied, it is relevant
to note the passage from the speech of Lord Diplock in Catnic Components
Limited v. Hill and Smith Limited (1982) RPC 183 at 242-3 which was cited by
Lockhart J. in Rhone-Poulenc Agrochimie SA v. UIM Chemical Services Pty Ltd
(1986) 68 ALR 77 at 92-93. That passage emphasizes, amongst other things,
that a variant from a requirement stated in the claim of a specification,
which would have a material effect upon the way the invention worked, could
not be regarded as insubstantial. As Lockhart J. said at 93:
"I agree with Wilcox J. that the pith and
substance principle has a limited application
and is typically applied where the alleged
infringing article reproduces all integers
but departs in a minor respect from the
description of one of them. ... (T)his is a
case where the elimination of the integer
affects the way in which the invention
works."
56. Counsel for the cross-claimants relied on Griffin v. Isaacs (1942) 12
AOJP 739, where Dixon J. at 740 referred to "the difficulty of maintaining a
definite distinction between novelty and subject matter", a difficulty since
lessened by the decision in the Minnesota Mining and Manufacturing case.
Dixon J. went on:
"Where variations from a device previously
published consist in matters which make no
substantial contribution to the working of
the thing or involve no ingenuity or
inventive step and the merit if any of the
two things, considered as inventions, is the
same, it is, I think, impossible to treat the
differences as giving novelty."
57. McTiernan J., at 740, expressed the matter with brevity; he thought the
anticipation and the invention were not "substantially different". Starke J.
concluded "nothing is disclosed that is not already known to or well within
the range of knowledge of competent workmen in the trade ... ." Latham C.J.
held that "the applicant's invention was in substance disclosed to the public
by (the prior publication) and accordingly was not novel."