Frank George Zahra and Johann Vincenz Binder v Peter Richard Finch

[1983] APO 37

In the Matter of the Patents Act 1952

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In the Matter of Patent Application No. 518338 for Letters Patent by FRANK GEORGE ZAHRA and JOHANN VINCENZ BINDER

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In the Matter of Opposition thereto by PETER RICHARD FINCH

DECISION OF DEPUTY COMMISSIONER OF PATENTS
         Patent application 518338 was advertised in the A.O.J.P. of 24 September 1981 as an accepted application.  A notice of opposition was lodged on 24 February 1982.  The matter was heard on 6 September 1983, the applicants being represented at the hearing by Mr. Grant Adams of Grant adams & Co.  The opponent was not represented.
         The grounds of opposition were stated to be those prescribed under Section 59(1), paragraphs (d), (e), (f), (g), (h) and (i).  However, the only grounds on which evidence was adduced were those under Section 59(1), paragraphs (g), (h) and (i), i.e. obviousness, lack of novelty and non‑compliance with Section 40.
         The specification in its accepted form is entitled "A weeder for row crops" and commences with a statement relating to the disadvantages of prior tractor drawn weeders.
         The general object of the invention is stated to be

"to provide a weeding implement capable of destroying weeds around row crops, even when the plants are in deep furrows, without any likelihood of damaging the root systems of the

plants, and without any high degree of skill being required.  An implement according to the invention may be capable of operating simultaneously in two or more drills, even if the spacing of these is uneven, and so a great deal of time and labour may be obviated."

Then follows a statement of invention which is identical to claim 1.  The specification continues with two paragraphs relating to preferred features followed by a description of two embodiments of the invention.
         The statement of claims defining the invention is as follows:

1.A weeder including:

a main frame for attachment to a tractor;

a fixed transverse member secured to the main frame forwardly of and substantially parallel thereto;

a movable transverse member rearwardly of and substantially parallel to the main frame;

two pairs of connecting links or bars pivotally connecting the movable transverse member to the fixed transverse member, the links or bars of each pair passing respectively above and below the main frame, the pairs of links or bars being so arranged that the movable transverse member may move laterally, but with limited vertical movement, relative to the main frame;  and

a pair of upright skid boards mounted on the movable transverse member, the skid boards being laterally spaced at the front and rearwardly divergent and so made and arranged that, when the tractor‑drawn main frame is advanced, they may travel in a furrow and to both sides of the plants of a row crop, into which the soil may fall as the weeder passes, the skid boards being laterally movable relative to the main frame as they travel in the furrow.

2.A weeder as claimed in Claim 1 wherein:

the skid boards are adjustably inter‑connected in such manner that the spacing of their front parts, and their angle of rearward divergency, may be adjustably varied.

3.A weeder according to either of the preceding claims wherein:

the pairs of links are parallel‑motion links inter‑ connecting the movable transverse member to the fixed transverse member for lateral movement parallel to the main frame;  and

the skid boards are secured at their front ends to the movable transverse member.

4.A weeder according to any one of the preceding claims wherein:

the skid boards are substantially rectangular in side elevation, and

the lower rear corner portions of the rearwardly divergent skid boards are inclined, relative to the main parts of the skid boards, to be downwardly convergent.

5.A weeder according to any one of the preceding claims wherein:

a scratcher device having a plurality of tynes is mounted in vertically adjustable manner between the skid boards.

6.A weeder substantially as herein described with reference to FIGS. 1 to 3 of the accompanying drawings.

7.A weeder substantially as herein described with reference to FIG. 4 of the accompanying drawings.

On the issue of non‑compliance with Section 40, the opponent contends that in the absence of any reference to or definition of the orientation or configuration of the main frame, claim 1 is not clear and succinct since the terms "transverse" and "parallel thereto" used in the opening lines of the claim have no clear meaning.  The opponent also contends that various directional terms used later in the claim, such as "laterally", "transverse" and "parallel to the main frame", are similarly not clear. 
         To resolve this matter it is only necessary to consider the usage of the word "forwardly" at line 3 of the claim.  In the present context of a tractor drawn weeder, I believe that "forwardly" has the clear meaning of "in front of, relative to the forward direction of travel of the tractor".  Bearing this in mind, and giving "transverse" and "laterally" their normal plain meanings of "crosswise" and "sideways" respectively relative to the direction of travel, I believe the claim to be clear and unambiguous in respect of the orientation of the various integers.  Thus, for example, the main frame, the fixed transverse member and the movable transverse member are all parallel to one another and lie crosswise to the direction of motion of the tractor, while the "laterally movable" skid boards are capable of sideways movement as they travel forward in the furrow.
         The opponent also contends that:‑

"Claims 1 to 5 do not define the invention and are not fairly based on the matter described in the specification.  The specification refers, at lines 2 to 11, page 3, to Figs. 1 to 3 as being in accordance with the invention, and to Fig. 4 as being an alternative embodiment of the invention.  The features common to the implements illustrated in Figs. 1 to 3 and Fig. 4 are, in the words of the specification, a tool bar, a transverse front member secured to the tool bar and parallel thereto, a pair of skid boards spaced apart at their front end and rearwardly divergent, and upper and lower angle iron members, attached to at least one skid board and extending forwardly under and over the tool bar.  This latter feature is not included in at least Claims 1 to 5 of the specification as accepted."

This contention appears to be based upon a faulty understanding of the correspondence between the claimed integers and those illustrated in Figs. 1 to 4.  In this regard, it is highly significant that despite its prominence in claim 1 and its clear depiction in both illustrated embodiments, the "movable transverse member" has no counterpart in the opponent's list of "features common to the implements illustrated". 
         The opponent's apparent misunderstanding may have been caused by the presence of several illustrated "look‑alike" integers which do not however perform identical functions in their respective embodiments.  The claimed "movable transverse member" for example is illustrated in Fig. 4 by item 43 whereas its functional equivalent in Fig. 1 is item 16 and NOT the "look‑alike" component 25.  Similarly the claimed "two pairs of connecting links or bars" are illustrated in Fig. 4 by items 38.  Their equivalents in Fig. 1 are the flat bars 15 and NOT the "look‑alike" angle iron components 19.  In my view all of the features defined in claim 1 are clearly depicted in both illustrated embodiments and are fairly based on the matter described in the specification.
         The opponent further contends that it is not clear at line 12 of claim 1 (as it appears in the specification as printed) "whether limited vertical movement of the transverse member is afforded by the pivotal interconnections between the pairs of links or bars, the movable transverse member and the fixed transverse member, or if some other arrangement is provided for limiting vertical movement of the movable transverse member".  In my opinion the only reasonable construction of lines 7 to 13 of the claim is that the limited vertical movement of the movable transverse member arises directly from the "links or bars being so arranged" as to produce this result.  Since the description and drawings support this view, I see no reason to postulate the need for other integers to perform that function.
         The opponent similarly contends that it is not clear whether "the skid boards being laterally movable relative to the main frame" as defined in the second last line of claim 1 "is by virtue of the connection of the skid boards to the movable transverse member or is in addition or supplemental to lateral movement of the transverse member".
         It is beyond dispute that the skid boards are laterally movable relative to the main frame because they are defined as being mounted on the movable transverse member which has been defined as laterally movable relative to the main frame.  It is also clear and uncontested that skid boards travelling in a furrow will follow the path of that furrow if they have the necessary freedom of lateral movement to allow them to do so.
         Since claim 1 explicitly defines a mechanism which has the specific purpose of permitting lateral movement of the movable transverse member on which the skid boards are mounted, I see no reason to postulate the need for additional integers to provide supplemental lateral motion to the skid boards.
         In view of the above considerations, I am of the opinion that the claims clearly and unambiguously define an invention which is fairly based on the matter described in the specification.
         Turning to the grounds of lack of novelty and obviousness, the opponent has cited 6 patent specifications to support his objections, viz:‑ AU 10684/32, 20423/34, 126269, 132975 and 145396, and US 3208535.
         None of these citations has the claimed combination of links and members which gives a movable transverse member the capacity for free lateral movement with limited vertical movement, thereby enabling the skid boards mounted on that member to follow the path of a furrow without the assistance of an operator (additional to the tractor driver) or the provision of extra hydraulic and/or electric components.  Nor, in my opinion, do these citations taken singly or as a group, suggest any combination of integers which would render the present invention obvious.
         The evidence in support of the opposition also includes a declaration by Mr. Thomas Gipps Ahearn which states in part "That implements of the type including a parallel linkage assembly for mounting weeding tools to a tractor to allow sideways tracking movement of the tools were manufactured and sold before the priority date of the present application".  This statement is accompanied by photographs and a drawing of a machine subsequently referred to in the evidence of both parties as the "Early Hodge Machine".  This machine uses a simpler arrangement than that of the applicant's invention to allow lateral movement of a movable transverse member.  Mr. Ahearn asserts that this simpler arrangement "is the mechanical equivalent to that defined in at least claim 1 of the present accepted patent application".
         I do not accept that the mechanism of the Early Hodge Machine is the mechanical equivalent of the applicants present invention for the following reasons.

(a)There is no direct integer by integer correspondence; for example, there is no equivalent at all in the Early Hodge Machine to the fixed transverse member secured forwardly of the main frame in the applicant's invention.

(b)It has not been demonstrated that it satisfactorily produced the same result.  Indeed, Mr. Arthur Charles Hodge, the manufacturer of the Early Hodge Machine, clearly admits in his declaration in support of the opposition that later models of this machine were not the same as those illustrated in the photographs.  They were modified, presumably in an attempt to improve performance, by using a welded instead of a bolted construction and changing the location of the pivot points.  No photographs or evidence of the sale or success of this modified version were adduced.

After abandoning manufacture of the Early Hodge Machine some 30 years ago, Mr. Hodge's company now produces a machine referred to in evidence as the "New Hodge Implement".  Photographs of this machine are attached to the Declaration of Mr. Johann Vincenz Binder which forms part of the applicant's evidence‑in‑answer.  In view of the fact that no evidence has been presented concerning the first public disclosure of this new machine I do not propose to discuss it further but I consider it significant that in producing the "New Hodge Implement" Mr. Hodge's company has abandoned the simpler linkage system of the early Hodge Machine in favour of a more complex construction.
         The evidence‑in‑support also contained photographs, declared to have been taken on 18 August 1977, of a cultivating implement made by Mr. J.W. Dorrian of Farnsfield.  The date however is inconsequential since the Dorrian implement does not appear from the photographs to possess important features which are characteristic of the applicant's invention i.e. a fixed transverse member secured forwardly of and parallel to the main frame, and pairs of parallel links or bars which straddle the main frame while connecting the fixed transverse member to the movable transverse member.  In the absence of these features, I do not consider the Dorrian implement to constitute a mechanical equivalent of the applicant's invention.
         In view of the above considerations, I find that opposition on the grounds of lack of novelty and obviousness is not sustainable.
         I note that the applicant's evidence‑in‑answer contains an exposition of some so‑called "desiderata" which recite operational results which a weeder, constructed with the aim of best achieving the stated object of the invention, should be able to achieve.  Although these results are not explicitly enumerated in the claims I believe that the capability of the claimed weeder to achieve them is inherent in the construction defined.  Accordingly I do not consider that the absence of any explicit reference to these results involves any grounds of non‑compliance with the requirements of the Patents Act.
         The opposition therefore does not succeed and I award costs against the opponent.

(C.H. FRIEMANN)