Australian Cassava Products Pty Ltd v Richter Machinery (Aust.) Pty Ltd

[1986] APO 32

In the Matter of the Patents Act 1952

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In the Matter of Application No. 521007 for Letters Patent by AUSTRALIAN CASSAVA PRODUCTS PTY. LTD.

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In the Matter of Opposition thereto under Section 59 by RICHTER MACHINERY (AUST.) PTY. LTD.

DECISION OF A SUPERVISING EXAMINER OF PATENTS:
Background
         Patent application 521007 entitled "ROOT‑CROP HARVESTER" originally made by FIELDERS LIMITED and now proceeding in the name of AUSTRALIAN CASSAVA PRODUCTS PTY. LTD. (hereinafter called CASSAVA) is for a standard patent and is based on provisional specification PD3050 lodged 17 January, 1978.  The complete specification was lodged on 10 January, 1979 and was advertised accepted in the Official Journal on 11 March, 1982.  RICHTER MACHINERY (AUST.) PTY. LTD. (hereinafter called RICHTER) lodged notice of opposition under section 59 on 10 June, 1982.
         A hearing in respect of the opposition was held in Sydney on 5 March, 1986.  The applicant was represented by Mr. R. Shelston, Patent Attorney of Shelston Waters, Sydney, while RICHTER chose not to attend or be represented at the hearing.
         The notice of opposition listed as the grounds of opposition those grounds specified in paragraphs (a) to (i) of sub‑section 59(1) of the Act.  However from the evidence, it appears the grounds relied upon are those of paragraphs (e), (g) and (h), i.e. prior publication, obviousness and lack of novelty.

The Specification
         The specification commences by stating that the invention:

"relates to the harvesting of root‑crops.  It may be usefully employed in the harvesting of root‑crops generally; however it is primarily intended for the harvesting of tuberous roots such as cassava which by comparison with potatoes for example, are large, elongated and deeply rooted in the earth."

The specification mentions that up till now, the harvesting of cassava roots has been carried out entirely by manual digging.  It also mentions that the use of conventional potato harvesting machines has been attempted but they have been found inadequate for the task due to the heavier nature of the work. Even if such a machine were made "heavier and larger" the specification implies that it is not entirely suitable as the main difficulty is that:

"the obliquely disposed earth slicing blade tended to act as a bull‑dozer blade; breaking‑up and rolling‑over the crop‑bearing layer of earth rather than separating it from the sub‑soil and transferring it as a substantially unbroken strip to the separative mechanism of the machine."

Accordingly one of the stated objects of the invention is to "provide a root‑crop harvester which incorporates an earth slicing blade so formed as to avoid the bull‑dozing disability".  To achieve this, there is provided an obliquely disposed blade having a leading edge portion and a backed‑off trailing edge portion which is set at a more acute angle relative to the earth surface than the leading edge portion.  According to the specification, it has been found that this provision provides a clearance space directly above the trailing portion which encourages the strip of crop‑bearing earth removed from the site to flow over the trailing portion somewhat in the form of a thick unbroken ribbon, instead of being compacted above the blade.
         The backing‑off angle between the leading edge portion and the trailing edge portion is stated to be critical "otherwise the earth strip separated from the site by (the leading edge portion) is not able to flow rearwardly unimpededly".  It has been found that the range for this angle is from 10o to 23o and preferably from 15o to 18o. 
         The specification concludes with six claims of which claims 2 to 5 are dependant to claim 1 and claim 6 is the usual omnibus claim.  Claim 1 defines the invention as follows:

"A root‑crop harvester comprising:

(a)a wheeled frame structure adapted to be travelled over a site to be harvested,

(b)an earth slicing blade mounted on and laterally of said structure and so obliquely disposed relative to the earth surface as, when moved translationally through the earth below the level of the root‑crop, to slice a crop‑bearing strip of earth from the site; said blade consisting of a leading edge portion and a backed‑off trailing edge portion whereof the angular disposition is more acute, relative to the earth surface than is that of said leading edge portion and wherein the angle between said edge portions if (sic) from 10o to 23o; and

(c)conveyor means mounted on said structure to convey said strip away from said blade, and retain the root‑crop therein while permitting the earth ingredient of the strip to fall back to the site."

At this point it is relevant to make several observations concerning claim 1.  The introductory part of the claim states that the invention is "A root‑crop harvester".  It has been submitted on behalf of the applicant that this expression is necessarily restricted to a cassava or similar tuberous root‑crop harvester as the specification as a whole is directed to harvesting cassava type roots.  While it is true that the specification in the main is directed to harvesting cassava roots, I consider that the term in question has a broader interpretation than that envisaged by the applicant.  The plain meaning of the term "root‑crop" suggests a generic class of plant of which potatoes, cassava, etc. are members.  In fact the description supports such an interpretation since in the introductory paragraph on page 2 it refers to the invention (which incidentally is entitled "Root‑crop Harvester") as concerned with "harvesting of root‑crops generally".  The definition of the harvester in claim 1 provides no characterization which could clearly restrict it to operational suitability for cassava plants alone; nor does the proper application of the rules of construction of a patent specification lead to the interpretation advanced for the applicant.  Consequently I conclude that claim 1 includes within its scope any type of root‑crop harvester having the combination of features as defined.
         A further point concerns the definition "the angle between said edge portions is from 10o to 23o" as recited in paragraph (b) of claim 1.  In my view this definition is imprecise as it fails to clearly identify the relevant angle.  The definition on a strict interpretation implies that the included angle between the said portions is as given.  However from the description of the invention, the angle range specified relates to the "backing‑off angle" which is shown by the drawings to be the included angle between the trailing edge portion and the projection of the leading edge portion.  Consequently on this point I consider claim 1 fails to clearly define the invention, thus offending against section 40 of the Act.
The Evidence
         The evidence served in support of the opposition by RICHTER consists of the following:

(i)A declaration by Howard James Richter dated 24 December, 1982 having associated exhibits HJR‑1 to HJR‑14.

(ii)A declaration by Graham James Richter dated 24 December, 1982.

According to this evidence, the opponent RICHTER is "one of the largest manufacturers of root‑crop digging and harvesting equipment in Australia" and carries on the agricultural engineering and manufacturing business founded in 1908 by the grandfather of the present joint Managing Directors, the declarants in this matter.  Mr. Howard Richter disposes that he has "been actively involved in the design and manufacture of root‑crop equipment in Australia since 1953" and Mr. Graham Richter similarly states his involvement "since 1952".
         Evidence in answer filed on behalf of the applicant consists of:

(i)A declaration by Noel Vincent Harris dated 14 November, 1983, and

(ii)A declaration by Lincoln Munro Doggrell dated 14 November, 1983.

Mr. Harris gained a degree of Bachelor of Agricultural Science in 1968 and has been employed by the applicant or its predecessor since 1974.  He is the inventor of the invention the subject of the opposed application.  His declaration answers and comments at length on matters contained in the opponent's evidence.  Mr. Doggrell's major work experience since 1963 has been associated with nut growing and orchard operations with Colonial Sugar Refining Co. Limited.  "During the past three years" (i.e. since late 1980, based on the date of his declaration) he has been on secondment to the applicant as Operations Manager and concerned with research and development in the production of cassava.  Since Mr. Doggrell appears to have no direct knowledge of cassava production and harvesting prior to 1980, his evidence must be considered in the light of that fact.
         No evidence in reply was lodged by the opponent.
Anticipation
         The opposition by RICHTER is primarily based on the argument that the present claims are anticipated by root‑crop harvesters designed, manufactured and sold by the opponent company before the priority date of the application.  In order to assess this contention, it is necessary to refer in some detail to the opponent's evidence.
         The declaration by Howard James Richter is the main one as the declaration by Graham James Richter is of one page and merely concurs with the conclusion made in the previous declaration.  As such, discussion will be limited to the former declaration and the accompanying exhibits.  The exhibits are:

(i)HJR‑1 which comprises Australian Patent Specification 520134 in the name of the opponent for a "Cassava‑Root or Arrowroot Digger or Harvester",

(ii)HJR‑2 which comprises the opposed specification,

(iii)HJR‑3 which comprises Australian Patent Specifications 123505, 125052 and 288420 in the names of Humphrey, Sly and Volstad respectively,

(iv)HJR‑4 and HJR‑5 which comprise a brochure describing harvesters the subject of exhibit HJR‑1 and copies of invoices, statements, etc. relating to the printing of this brochure,

(v)HJR‑6 to HJR‑9 which comprise correspondence between the opponent and the previous patent applicant, Fielders Limited, and

(vi)HJR‑10 to HJR‑14 which comprise advertising‑type brochures and photographs of various models of potato harvester allegedly manufactured and sold by the opponent.

As admitted by the opponent, Patent Specification 520134 was not published before 17 January, 1978 the priority date of the opposed claims and therefore is not relevant to the question of anticipation.  In any event it does not disclose the invention as claimed, and furthermore the harvester of the cited specification is constructed to operate on a different principle (i.e. with a zero "angle of attack").  As a consequence, exhibit HJR‑4, which is said to illustrate the harvester which is the subject of Patent Specification 520134, is also not relevant.
         With regard to the patent specifications forming exhibit HJR‑3, I also consider these not relevant as no one of them discloses the combination of features of the invention as claimed; in particular, I note there is no disclosure of the specific blade features as claimed.  Furthermore, the relevance of exhibits HJR‑6 to HJR‑9 is not clear to the matter of this opposition.  Mr. Harris in his evidence in answer for the applicant suggests that possibly the opponent is insinuating that the present invention was obtained from it.  There is however no elaboration of this point in the opponent's evidence and in any event these exhibits do not support any obtaining allegation.  At most this correspondence merely suggests some commercial rivalry between the two companies and in that sense is irrelevant to this matter.
.  As stated above, these exhibits disclose different models of potato harvesters.  Even though both the applicant and the opponent agree that potato harvesters are unsuitable for harvesting cassava, consideration of these exhibits and harvesters is necessary since, as discussed previously, the claims are directed to a root‑crop harvester comprising a particular combination of features and are in no way limited to a harvester   suitable only for cassava harvesting.
         Mr. Harris from his declaration, has in effect submitted that these exhibits are unsuitable  as evidence since doubt exists concerning whether these brochures can be considered to be publications as there is no actual indication or evidence of when they were published and made available to the public.  Furthermore Mr. Harris questions whether the harvesters that these brochures allegedly depict were manufactured, sold or used.  At the hearing, Mr. Shelston also referred to the lack of proof of publication and general credibility of these exhibits.  In his declaration, Mr. H. Richter identifies the harvesters pictured on the brochures or photographs as being of specific models of potato diggers/harvesters "manufactured and sold" by his company in the period of years from the 1930's to 1962, and also refers generally to "the manufacture, sale, advertising and use of the root‑crop diggers and harvesters" referred to in these and other exhibits.  It is true however that the opponent has not provided any specific documentary evidence of such matters as (a) the number of individual models manufactured and when, (b) the number of models sold and when, or (c) how and when advertising was undertaken, nor lodged any corroborating evidence from independent parties.
         In considering the suitability of the opponent's evidence encompassed by exhibits HJR‑10 to HJR‑14, it should be appreciated that the Commissioner in opposition proceedings such as this has the role of an Administrative Tribunal. As such, the Commissioner is entitled to act on any material which is logically probative, i.e. material which tends logically to show the existence or non‑
existence of facts relevant to the issues to be determined.  The standard of proof required in opposition proceedings is the civil standard of proof on the balance of probabilities.  (See, e.g. Dunlop Holdings Ltd.'s Application  1979
RPC 523).  Consequently, given the fact that the two declarants for the opponent are joint managing directors of the opponent company and both have been actively involved in the industry since the early 1950's, and given the existence of the opponent company (or its predecessors) in the business of manufacturing potato harvesters since the 1930's, I am prepared to accept that the brochures of exhibits HJR‑10 to HJR‑13, and the harvesters identified and disclosed in exhibits HJR‑10 to HJR‑14 were available to the public before 17 January, 1978, the earliest priority date of the claims of the opposed specification.
         I turn now to a consideration of the disclosures of these exhibits.  In general each exhibit discloses a potato harvester or digger having a wheeled frame structure and conveyor means arranged thereon, i.e. features (a) and (c) as specified in the opposed claim 1.  All diggers, except that of exhibit HJR‑10, also clearly have an earth penetrating blade or share which undoubtably is able to slice a strip of earth from a harvesting site.  Due to the particular picture representation on the brochure of Exhibit HJR‑10, no earth slicing blade can be seen.  Mr. Richter however states that this particular model had an earth slicing blade or share fitted which was "sharpened ... at the leading edge to approximately a 15o angle relative to the top face (or trailing edge portion) of the share".
         Claim 1 of the opposed specification characterizes the earth slicing blade thus:

"said blade consisting of a leading edge portion and a backed‑off trailing edge portion whereof the angular disposition is more acute, relative to the earth surface than is that of said leading edge portion and wherein the angle between said edge portions is from 10o to 23o".

In my view this definition enables a broad interpretation to be given to the blade.   In particular I consider the definition to include blades of planar form having a chamfered or sharpened leading edge thus generating a leading edge portion in the region of the sharpened edge, the remainder of the blade constituting a trailing edge portion.  (In fact the blade shown in Figures 3 and 4 of the specification resembles such a sharpened planar member.) Apart from the angular disposition requirement, I find the definition in claim 1 provides no other characterization or limitation of the blade.  Furthermore I see no valid basis for limiting the scope of the blade definition in the claim by reference to the description, a point advanced on behalf of the applicant in evidence and submissions.
        Having regard to Mr Richter's declaration and the nature of the harvesters disclosed in Exhibit HJR‑10 to HJR‑14, I am satisfied that those exhibits disclose harvesters having an earth slicing blade which resembles a flat plate with an inclined or sharpened leading edge.  As such, they disclose an earth slicing blade which has a leading edge portion and a backed‑off trailing edge portion as required by the blade defined in claim 1.   What is not clear solely from the exhibits is the relative angular disposition between the two edge portions.   (For the purposes of subsequent discussion, I will consider the relevant angle is the so‑called "backing‑off angle".)
        Mr Richter states that the harvesters manufactured by his company depicted in these exhibits had slicing blades made of plate with a sharpened leading edge producing an angle of approximately 15o to the top or bottom face (implying a "backing‑off angle" of approximately 15o).   From my inspection of the exhibits, only the photograph of Exhibit HJR‑14 tends to indicate some form of sharpening of the front edge of the blade but it would be pure speculation on my part as to the sharpening angle resulting.
        For the applicant, both Mr Harris in his declaration and Mr Shelston at the hearing have queried the suitability and adequacy of Mr Richter's evidence concerning the sharpening of the harvester blades and the backing‑off angle.  While independent corroborative evidence in support of Mr Richter's statements would have proved of some overall assistance in this matter, given the standard of proof required, i.e. the balance of probabilities, I am satisfied these harvesters had blades sharpened as stated by Mr Richter in his evidence, particularly sharpened to provide a backing‑off angle of approximately 15o.  Such an angle falls within the range specified by claim 1.
        Accordingly I find the invention defined by claim 1 has been prior published.  Furthermore in view of exhibits HJR‑10 and 11, I also find dependant claim 3 prior published.
        I note that claim 1 specifically requires a backing‑off angle of from 10o to 23o.  The specification states that the backing‑off angle between the leading and trailing edge portions of the blade is critical, otherwise the earth strip separated from the site by the leading edge portion is not able to flow rearwardly unimpededly.   This may well be so given particular forms and arrangements of blades together with particular blade inclinations to the working surface (such as shown in Figures 3 and 4), but I fail to see any support for the stated advantages necessarily arising for all blade forms and their orientation on the harvester.   Consequently while I have found claim 1 to be prior published and hence not novel on the basis of a prior disclosure of a root‑crop harvester having a blade with a backed‑off angle of approximately 15o, in my view a harvester as defined having a blade with a backed‑off angle of any value within the range of 10o to 23o and in the absence of any additional constructional limitation does not exhibit any novelty.
        On the evidence before me I find no grounds for concluding that dependant claims 2, 4 and 5 lack novelty or are obvious.  The evidence advanced by the opponent in relation to these claims does not disclose the features claimed nor establish that the features were well known or matters of common knowledge in the art at the relevant date.  With regard to claim 6 which is the usual form of omnibus claim, I do not consider it necessary to express an opinion on this claim at this stage given my findng in relation to claim 1.

Conclusion
        In summary I find the opposition successful in respect of the grounds of non‑compliance with section 40, prior publication and lack of novelty as indicated.   As the specification could be amended in order to overcome the deficiencies found, I afford the applicant 60 days from the date of this decision in which to propose any amendments.
        I award costs against the applicant.

(T.R. Bruhn)

Patent Attorneys for the applicant:  Shelston Waters