Gamma-Metrics v Mineral Control Instrumentation Pty Ltd - [2003] APO 26

OFFICIAL NOTICE
DECISION OF A DELEGATE OF THE COMMISSIONER OF PATENTS
Application : No. 723878 in the name of Gamma-Metrics

Title: Real-time Optimization for Mix Beds

Action: Opposition under section 59 of the Patents Act 1990 by Mineral Control Instrumentation Pty Ltd, hearing.

Decision: Issued 01 July 2003
Abstract

The specification relates to building mix beds or stockpiles of variable bulk materials, from which slices of the bulk material are reclaimed from time to time. The specification describes and claims systems and methods for use in reducing variability throughout the mix bed when they are being formed so that further homogenization will not be required when material is reclaimed. For instance these systems or methods enable predictions to be made about aggregate composition of bulk materials in sectors of a mix bed based on data about the materials being delivered for stacking. This can then enable changes to be effected to the building schedule for the mix bed in order to ensure a suitable aggregate composition in sectors.
The opposition grounds based on section 40, lack of novelty and not a manner of manufacture were not made out. However claims 1, 3-5, 8-10, 13-18, 21-25 were found to lack an inventive step in the light of material in evidence.
The applicant was given 60 days to file suitable amendments to overcome the successful ground of opposition.
Costs were awarded against the applicant.
PATENTS ACT 1990
DECISION OF A DELEGATE OF THE COMMISSIONER OF PATENTS
Re:Patent application No. 723878 by Gamma-Metrics, and opposition under section 59 of the Patents Act 1990 by Mineral Control Instrumentation Pty Ltd.

BACKGROUND

Patent application 723878 arose as application 17328/99 filed by Gamma-Metrics on 16 February 1999. As the application claims priority from US patent application 09/026632 dated 20 February 1998, this date is the earliest priority date of the claims of the application. Application 17328/99 was advertised accepted on 7 September 2000 and assigned number 723878.
A notice of opposition to the application was filed on 7 December 2000 by Mineral Control Instrumentation Pty Ltd ("Mineral Control"). A statement of grounds and particulars ("the Statement") followed on 7 March 2001. Evidence in support, answer and reply were duly filed.
The Statement lists as grounds of opposition the non-compliance with the following provisions of the Patents Act 1990 ("the Act"): paragraph 18(1)(a) (manner of manufacture), paragraph 18(1)(b) (novelty and inventive step) and sections 40(2) and 40(3) (fair basis and clarity of the claims).
This matter was set for a hearing in Canberra on 30 January 2003. Gamma-Metrics was represented by Ms C Hustwick patent attorney of Madderns. Mineral Control was represented by Mr L Allen patent attorney of Davies Collison Cave.
THE SPECIFICATION
The invention is entitled "Real-time optimization for mix beds". The following introductory portion from the specification explains the invention and its background.
"Background of the Invention
The present invention generally pertains to building mix beds of variable bulk materials, from which slices of the bulk material are reclaimed from time to time, and is particularly directed to improved systems, methods and computer readable storage media for determining the compositions of the mix beds as they are being built and for the stacking of the bulk materials onto the mix bed in such a manner as to build a mix bed having a desired composition throughout the mix bed. Variable bulk materials include different types of bulk materials and/or bulk materials of a given type having variable compositions.
Mix beds, also known as blending beds, are widely used in the cement industry and other industries, such as coal processing, mining, grain and fertilizer, to reduce variability in the bulk materials when processed, as well as to provide a stockpile for processing when the material production or material delivery systems are halted. Although mix beds are sometimes used to homogenize material delivered from a single source, mix beds frequently are used to homogenize different materials respectively delivered from different sources, such as mixtures of limestone and clay for use by cement plants and mixtures of high and low sulfur coal for use by power plants. It is an object of the present invention to reduce variability throughout the mix bed to such an extent that further homogenization will not be required."
The specification then includes a description of the building of mix beds typical of the prior art methods. This is done with reference to figures 1 to 4 which are all labelled "Prior Art". One method described relates to forming a longitudinal bed where a stacker moves back and forth delivering layers of material, thus building up a bed which has layers of different material composition. While one end is still being formed, material can be reclaimed from the other end of the bed. Typically reclaiming is done by taking angled slices from the bed, and given the different layers present, the reclaimed material will exhibit a particular aggregate composition. Normally the respective compositions of the bed layers deposited are selected to produce the desired aggregate composition when reclaimed. Another method described refers to building a circular mix bed using a rotating stacker, again with the stacker moving back and forth to build up layers on the bed. Reclaiming action for this bed is similar to that for the longitudinal bed and can operate continuously with bed building.
The specification continues by mentioning that interruption to supply of particular material in forming the mix bed or equipment failure can lead to unacceptable aggregate composition when reclaimed.
On page 4 the following paragraph concerning analysing and sampling appears:
"Various on-line analyzers and/or sampling techniques are used to determine the aggregate composition of a mix bed as the mix bed is being built so that an undesired aggregate composition of a given sector S of the mix bed can be recognized and then corrected. For example a bulk material analyzer, such as an analyzer utilizing prompt gamma-ray neutron activation analysis (PGNAA), is disposed about a conveyer delivering bulk material to the stacker to analyze the composition of the bulk material being delivered to the stacker; and the quantity of the bulk material of such composition that is being delivered to the stacker is measured gravimetrically by means such as a scales disposed within the conveyor assembly."
There follows further discussion regarding a disadvantage in building continuous-mode circular mix beds particularly in the region of the blending tail of the bed wherein it can be difficult to correct an undesired aggregate composition arising in a cross section sector of the bed during the continuous operation of depositing material. While a "prior art technique" for correcting aggregate-composition irregularities detected in continuous-mode circular mix beds is mentioned, it is said that it does not appear to be applicable for correcting irregularities detected in given sectors "while building the mix bed".
On page 6, under a heading "Summary of the invention", it is said the
"present invention provides improved systems and methods for use in correcting aggregate-composition irregularities detected in given sectors of the mix bed while building the mix bed."
This is followed by various statements of aspects of the present invention relating to either systems or methods for building a mix bed of variable bulk materials, statements which mirror the content of the various independent claims appended to the specification. There then follows, starting at page 12, a "detailed description" of the invention with reference to figures 5 to 10. Figure 5 for instance is a block diagram illustrative of the systems and methods of a preferred embodiment of the invention.
The specification, in describing the system of the present invention, indicates that various elements involved are either well known in the art or commercially available. For instance it mentions that:
·stackers and stacker/reclaimers are well known in the art (page 13 lines 1-3),
·stacker location monitors are well known in the art (page 14 lines 1-5),
·delivery-rate monitors are commercially available (page 14 lines 11-13), and
·bulk-material-composition analyzers are known from patent literature (page 14 lines 14-23).
Of the 27 claims appended to the specification 8 are independent. For the purposes of discussion I need only reproduce four of those independent claims here. They read as follows, the labelling of features being added by me to aid subsequent reference:
"1. (a) A system for building a mix bed of variable bulk materials, from which slices of the bulk materials are reclaimed from time to time, comprising
(b) means for building a mix bed composed of many layers of variable bulk materials by stacking delivered variable bulk materials onto the mix bed at different locations in accordance with a schedule;
(c) means for analyzing the composition of the bulk materials being delivered for stacking onto the mix bed;
(d) means for measuring the quantities of the bulk materials being delivered for stacking onto the mix bed;
(e) means for correlating the composition analyses and the quantity measurements with the different locations to which the bulk materials are being delivered for stacking; and
(f) means adapted for processing the composition analyses and the quantity measurements with the location correlations to predict, in accordance with the compositions and quantities of the bulk materials being delivered for stacking onto the mix bed, an aggregate composition of the bulk materials in respective sectors of the mix bed when said respective sectors are reclaimed."
"3. (a) to (e) [These features are identical to features (a) to (e) of claim 1]
(f) means adapted for processing the composition analyses and the quantity measurements with the location correlations to provide a real time data base of the current composition of the bulk materials in respective sectors of the mix bed."
"18. (a) A computer readable storage medium for use in a computer used in a method of building a mix bed composed of many layers of variable bulk materials, from which slices of the bulk materials are reclaimed from time to time, said method including the
(i)steps of building a mix bed composed of many layers of variable bulk materials by stacking delivered variable bulk materials onto the mix bed at different locations in accordance with a schedule; (ii) analyzing the composition of the bulk materials being delivered for stacking onto the mix bed; (iii) measuring the quantities of the bulk materials being delivered for stacking onto the mix bed; (iv) and correlating the composition analyses and the quantity measurements with the different locations to which the bulk materials are being delivered for stacking,
(b) wherein the storage medium is configured so as to cause the computer to process the composition analyses and the quantity measurements with the location correlations to predict, in accordance with the compositions and quantities of the bulk materials being delivered for stacking onto the mix bed, an aggregate composition of the bulk materials in respective sectors of the mix bed when said respective sectors are reclaimed."
25. (a) A system for building a mix bed of variable bulk materials, from which slices of the bulk materials are reclaimed from time to time, comprising
(b) a stacker for feeding bulk materials and for depositing the fed bulk materials at a plurality of different locations of a mix bed to sequentially form a plurality of stacked layers of bulk materials across the mix bed;
(c) a stacker locator for providing a location signal indicating the location at which the stacker is depositing the bulk material;
(d) a composition analyzer for determining a composition of the bulk materials being fed by the stacker and for providing a composition signal indicating said determined composition;
(e) a quantity measurement system for measuring a quantity of the bulk materials being fed by the stacker and for providing a quantity signal indicating said measured quantity; and
(f) a computer coupled to the stacker locator, the composition analyzer and the quantity measurement system for receiving the location signal, the composition signal and the quantity signal,
(g) wherein the computer is adapted for processing the location signal, the composition signal and the quantity signal to correlate the location at which the stacker deposits the bulk material with the composition and quantity of the bulk material deposited at said location and to calculate a predicted aggregate composition of the bulk materials within a selected sector of the mix bed formed by deposit of bulk material at said location."
Of the other independent claims,
·    claim 6 is for "a system for use in a method of building a mix bed",
·    claim 10 is for "a method of building a mix bed", with steps relating to system elements as in claim 1,
·    claim 13 is also for "a method of building a mix bed", with steps relating to system elements as in claim 3, and
·    claim 21, like claim 18, is also for "a computer readable storage medium".
Further it is noted that claims 18 and 21 refer to a use in methods corresponding to those in claims 10 and 13 respectively.
THE EVIDENCE FILED
Evidence in support
The evidence filed in support of the opposition comprises statutory declarations by the following persons:
·     Andrew Lowe, legal practitioner of Davies Collision Cave. (Declaration includes exhibits ARL-1 to ARL-10.)
·     Geoffrey Robinson, a senior principle research scientist at the Division of Mathematical Information Sciences (CMIS) of the Commonwealth Scientific Industrial Research Organisation. (Declaration includes exhibits GKR-1 to GKR-4.) (Robinson's 1^st)
·     Trent Bagnall, Managing Director of QMASTOR Limited, which is a subsidiary of CCI Holdings Limited (CCI). (Declaration includes exhibits TB-1 to TB-7.)
Evidence in answer
This comprises a statutory declaration by Catherine Hustwick, a patent attorney of Madderns.
Evidence in reply
The evidence filed in reply comprises statutory declarations by the following persons:
· Geoffrey Robinson (Robinson's 2^nd)
· Marcel Kamperman, a Superintendent of Planning at BHP Billiton Iron Ore at Port Hedland, WA. (Declaration includes exhibit MK-1.)
General comments about the declarants and evidence
Robinson's background indicates significant experience and continuing involvement with the sampling of bulk material stockpiles and also blending of stockpiles since the mid 1980s. He indicates involvement with numerous specific projects involving stockpiling or sampling materials. He also lists his involvement with recent published papers and many reports as a consultant concerning blending, sampling and modelling stockpiles. Robinson's professional qualifications appear to be confined to statistics. It is clear Robinson is well versed in sampling and modelling stockpiles.
Bagnall says he is "responsible for the management of quality management systems QMASTOR and Pit To Port, both of which relate to the tracking of coal at various stages between the coal mine and the transport ship." He also says that "CCI developed and has sold the QMASTOR system since in or about 1993".
Mr Allen submitted that the applicant had not chosen to present any expert evidence in this matter to answer that presented by the opponent. He said the declaration by Ms Hustwick contained no more than submissions rather than matters of fact and thus had to be viewed accordingly when considering any weight it may carry. Thus he submitted that on any matters of construction of the specification or other documents only the evidence of Robinson could provide aid in that regard. Ms Hustwick said that the applicant had considered the evidence in support and formed the view that the prior art documents did not disclose or suggest the claimed invention, and that its evidence in answer put this position on the record.
Clearly what a party chooses to file as evidence is a matter for itself, no doubt in the full knowledge that it alone is responsible for any adverse consequences that may ultimately flow from how it has approached its evidence. As to the evidence generally, the Commissioner, while functioning as a Tribunal, is not bound by the rules of evidence but nevertheless must reach a decision on rationally probative material, that is material which tends rationally to show the existence or non-existence of facts relevant to decision. It is for the Commissioner to determine the weight to be given to material of probative value. A party alleging that a patent should not be granted on an application bears the onus of proof and any doubt on whether grounds of opposition have been established should be resolved in favour of the applicant. The Commissioner has to be "clearly satisfied that the patent, if granted, would not be valid" (see for example F. Hoffman-La Roche AG v New England Biolabs Inc [2000] FCA 283).
DECISION
Construction and section 40 issues
I believe the terminology used in the specification and claims is, in the main, well understood and used by those in the art. I see no difficulty with terms such as "mix bed", "variable bulk materials" and "composition of the bulk materials". By a "mix bed" I believe that those in the art would understand this to mean a single storage stockpile of bulk material, consistent with Robinson's meaning of "a grouping of bulk material, including a stockpile of bulk material". It is also consistent with the use of this term in the context of the specification. Thus a "mix bed" would not comprise multiple discreet stockpiles. In the context of the specification as a whole, I believe that those in the art would understand "variable bulk materials" to mean "different types of bulk materials and/or bulk materials of a given type having variable compositions", consistent with what is indicated in the first paragraph on page 1a of the specification.
The terms slices and sectors
The opponent drew attention to the terms "slices" (in relation to reclaiming material) and "sectors" (which are reclaimed) of the mix bed used in the claims. Robinson construed "sectors" as being interchangeable with "slice" but he suggested there should be a definition of "sector". It seems that "slice" is an apt term used in describing a segment or portion of material gathered in a reclaiming operation from a bulk stockpile. As the specification mentions, reclaimers typically appear to gather material from an angled face of the stockpile roughly corresponding to the angle of repose of the material. Thus for such a reclaiming method, at any point relative to the mix bed a reclaimer would reclaim a slice of material from the angled face of the stockpile.
The term "sectors" as in claim 1 is used in the context of predicting "an aggregate composition of the bulk materials in respective sectors of the mix bed when said respective sectors are reclaimed". While the reference to "said respective sectors are reclaimed" tends to suggest reclaiming of respective sectors, I do not think that "sector" and "slice" are necessarily interchangeable. Afterall it seems that following a normal meaning, "sector" could relate to any cross-sectional volume of the stockpile material although for practical purposes in effecting the invention it seems it relates to a small such volume whose aggregate composition and location in the stockpile can be predicted and recorded. The definitions in claims 8 and 9 provide for either approximately vertical or angled sectors. Further there seems to be no reason why a reclaiming slice could not embrace multiple sectors or portions of sectors.

What is required by the various systems and methods claimed is that for the material being delivered to locations in the mix bed, various measurements and then predictions of an aggregate composition relating to sectors embracing particular locations can be made. In working the invention I think that it is evident that the precise nature of the "sectors" will be predefined.
Given my comments, I think that in the context "sector" of the mix bed has a specific enough meaning and need not equate to a reclaim slice. I note that the claims refer to "respective sectors". Whilst this expression is not otherwise defined, I think that in the context it is being used to refer to the particular sector of the mix bed which incorporates the current stacking location under analysis. I believe that this expression would be readily understood as such by those in the art, and I will apply that meaning.
Being delivered
This expression received attention during the submissions in this matter, particularly in the context of the claimed monopoly and the novelty considerations. Essentially the issue centred around whether "being delivered" meant that the claims were directed to an invention somehow different from a situation where materials had been delivered and stacked. It is necessary to look at the relevant wording in the context of the claims.
Claim 1, for example, is directed to "a system for building a mix bed of variable bulk materials". The wording "for building" is normally interpreted to mean "suitable for" and I see no reason why that is not so in this case given the overall claim definition. Claim 1 thus defines a number of features which make up the system and which makes it suitable for building a mix bed of variable bulk materials. The various features of the system are defined to be suitable for ("for") achieving certain functions, such as to stack delivered material (feature (b)) or to analyse the composition of material being delivered for stacking (feature (c)). The overall definition is such that to me what is central to the invention is the requirement that features are limited by functions associated with the variable bulk materials being delivered for stacking. Thus when used with a facility which supplies a quantity of variable bulk materials to it, the system of claim 1 enables certain parameters of the materials to be determined and then correlated to a given, in effect a proposed, stacking location. The system also provides a prediction of aggregate composition of the bulk materials for sectors of the mix bed if the materials are actually stacked at the given locations and if the sectors are reclaimed. Claim 1 thus defines a system that generates a prediction of an aggregate composition based on particular quantities of materials being delivered for stacking at given, proposed, locations of the mix bed. A particular quantity may or may not be subsequently stacked at a given location depending on the prediction arising - the further definition of the system, as included in appended claim 2, makes this clear where particular means can cause the given or particular delivered material to be omitted from stacking at the given location. Thus crucial to the definition of the invention of claim 1 is the relationship to quantities of the variable bulk materials being delivered for stacking rather than where ultimately stacked. Whether or not the system of claim 1 enables some correlation between actually stacked material and particular quantities being delivered is not important since that is not the subject of this claim.
Apart from claim 25 all the other independent claims rely on the same or equivalent requirement of bulk materials being delivered for stacking. In claim 25 the system includes a "stacker for feeding bulk materials and for depositing the fed materials at … locations of a mix bed". Thus in claim 25 the definition refers to materials "being fed by the stacker". As such the features concerning composition analysis and quantity measurement relate to the material prior to being stacked which is equivalent to that for the other claims.
There is another issue regarding construction stemming from the expression "the bulk materials being delivered for stacking". In claim 1, the "means" of features (c) and (d) are for determining certain data "of the bulk materials being delivered for stacking". Thus it is implicit that these devices must be arranged to operate prior to the point when the "means for building" operates to stack the delivered material. In the absence of any other limitation, I believe the definition "being delivered for stacking" may qualify the bulk material to any point in the supply line once the material has been identified for stacking and prior to the stacking action. Thus the means of features (c) and (d) could be arranged either with delivery equipment immediately before the means for building (such as a stacker), or at an earlier point in the supply line to the stacker.
For claim 25 however, unlike as discussed for claim 1, in my view the definition limits the features (d) and (e), the composition analyser and quantity measurement system, to be arranged with the stacker to gather data on material feeding from the stacker and not to any point in the supply line. This follows from the fact that these devices determine data "of the bulk materials being fed by the stacker".
Real time data base
This expression appears in several claims including claim 3. The term "real time" normally arises in the context of equating measurement parameters of a device at a particular time with say a performance analysis at that time, usually so that the analysis is provided at the same rate as the original measurements. It is "real time" in the sense that no noticeable time delay spans the time the measurements are taken and the analysis result calculated. Such "real time" analysis commonly derives from computer processing. As used in the claims I see the expression reflecting such analysis whereby given continuing delivery of quantities of variable bulk materials, the system provides a data base of the current mix bed composition in sectors essentially coincident with each quantity being delivered. As such it is distinguishable from any situation where an analysis performed subsequent to stacking provides a mix bed composition data base.
The invention of the independent claims
As already mentioned, claim 1 provides a system which leads to the generation of a prediction for an aggregate composition of bulk material in respective sectors of the mix bed when the sectors are reclaimed.
Claim 3 is also for a system with most features similar to those in claim 1, but differs at feature (f). Feature (f) gives rise to the system providing a "real time data base of the current composition of the bulk materials in respective sectors of the mix bed".
Claim 6 is for "a system for use in a method of building a mix bed", the method including steps which features (a) to (f) of claim 1 could achieve. The only features of the system of claim 6 are a "means adapted … to predict … an aggregate composition of bulk material in respective sectors of the mix bed when the … sectors are reclaimed" and "means adapted for responding to predictions … by causing stacking of the given delivered bulk material … to be omitted".
Claim 10 is for "a method of building a mix bed", with steps relating to system elements as in claim 1.
Claim 13 is also for "a method of building a mix bed", with steps relating to system elements as in claim 3.
Claim 18 is directed to "a computer readable storage medium for use in a computer used in a method of building a mix bed". The method has steps similar to those in claim 10. The claim is particularly limited to a storage medium "configured … to process … (certain data) to predict … an aggregate composition of the bulk materials in respective sectors of the mix bed when the … sectors are reclaimed."
Claim 21 is also directed to "a computer readable storage medium for use in a computer used in a method of building a mix bed", where the storage medium "is configured … to process … (certain data) to provide a real time data base of the current composition of the bulk materials in respective sectors of the mix bed."
Claim 25 is directed to "a system for building a mix bed". It includes features similar to those in claim 1 but also includes "a computer coupled to … (various other features) … (and) adapted for processing … (various data) to calculate a predicted aggregate composition of the bulk materials within a selected sector of the mix bed formed by deposit of bulk materials at said location."
Fair Basis and descriptive support
The opponent raised several matters against the specification for the claims either lacking fair basis or support in the specification.
The opponent first said that the independent claims relate to different combinations of features and accordingly the specification fails to identify the essential features of the invention and therefore the claims are not fairly based. An analysis of the independent claims reveals that they all relate to methods or means to process and analyse various parameters in relation to building a mix bed of variable bulk materials in order to identify an aggregate composition for sectors of the bed. The various claims thus have this commonality between the inventions defined by these claims. I do not see that any fair basis issue arises in the claims given their definition and differences in combinations of features defined. Whilst the claims may in fact relate to more than one invention, that situation does not provide a ground of opposition under section 59.
The opponent argued that claims 10 and 13 lack fair basis or are not adequately defined. These method claims define steps that can be seen to directly correlate with operations effected by features of the respective systems defined by claims 1 and 3. The description refers to this in a general sense on page 8. Elsewhere in the description of various system embodiments, methods as claimed are either described or are implicit to the reader. To me there is adequate support for the method defined by these claims.
Finally the opponent argued that claims 3 and 13 lack fair basis because they no not include a feature allowing for the time delay between the time of analysis of data of material being delivered and the actual time when material is placed on the mix bed. The opponent points to a passage in the description to suggest this is an essential feature for providing a real time database of the mix bed. I think it is evident that the time delay referred to would be a factor that can affect the analysis leading to the database information. However I do not believe this means that these claims are lacking in fair basis because they fail to mention this aspect. I believe the features in these claims relating to processing and analysing the various parameters would be understood by a skilled addressee to encompass the relevant time allowance as part of the processing. These claims thus do not lack fair basis as alleged.
Common general knowledge
In Minnesota Mining & Manufacturing Co v Beiersdorf (Australia) Limited (1980) 144 CLR 253 common general knowledge was referred to in these terms (per Aickin J. at page 292):
"The notion of common general knowledge itself involves the use of that which is known or used by those in the relevant trade. It forms the background knowledge and experience which is available to all in the trade in considering the making of new products, or the making of improvements in old, and it must be treated as being used by an individual as a general body of knowledge."
The only evidence before me regarding the common general knowledge in the art of the specification is from Robinson. Robinson's qualifications suggest that he is a statistician, in fact he states he is "an Industrial Statistician with the Production Process Improvement Group" of his workplace division, CMIS. He indicates that he has worked on a number of projects sampling or modelling stockpiles of bulk materials. Ms Hustwick raised a query as to whether Robinson qualified as a person skilled in the art of the specification given his statistical leaning. She indicated the invention concerned process control. In reply Mr Allen pointed to Robinson's varied experience with stockpiles and mining, and noting that the invention concerned manipulation of data, he said this related to Robinson's overall expertise and made him suitable as an expert witness.
I have some difficulty in this case identifying the type of person who would qualify as being skilled in the art. The art in question essentially concerns stockpiling or forming blend or mix beds of bulk materials, be it ore, particular minerals, grain or otherwise. The particular invention of the specification would seem to involve a number of aspects, namely material delivery and control, data gathering or measuring, and data analysis. Whilst a single person may qualify with expertise across all these aspects, perhaps a mining or process engineer also possessed of statistical analysis expertise, I suspect it is more likely that the skilled addressee may comprise a team involving persons with skills in particular aspects. At best it seems Robinson could be a member of such a team, although I do not doubt that Robinson, given his involvement with projects, has developed a certain level of awareness on aspects other than the statistical analysis front. In the result I believe I can not dismiss Robinson's evidence out of hand, and that I should have regard to anything that is of logically probative value.
In the part of his declaration (Robinson's 1^st) concerning an assessment of obviousness of the claims Robinson states:
"112. In making this assessment I have been asked to consider what information would form part of the body of knowledge readily recognised as being commonly known in the field of bulk material processing, analysing, stockpiling and sampling, which I will refer to as the "Common General Knowledge". Having regard to the field of the invention and based on my experience and knowledge of bulk material processing, including mineral processing and sampling, I consider that information forming part of the Common General Knowledge includes the basic elements of processing bulk materials and the machinery used in that processing. Therefore, the Common General Knowledge includes various procedures and devices for stacking bulk materials onto a mix bed; procedures and devices for sampling, testing and measuring to determine the composition and mass of the incoming portions of bulk material; procedures and devices for generating signals for locating stackers; and procedures and devices for reclaiming portions of bulk material from stockpiles. I note that the information I have described above teaches features (1) to (3) of claim 1. Information forming part of Common General Knowledge also includes knowledge of mix bed or stockpile profiles, such as chevron type stockpiles, as well as configurations employing generally vertical or angled sections corresponding to the angle of reclamation. Thus, I consider that the features defined by claims 8 and 9 also form part of the Common General Knowledge." [Robinson's features (1) to (3) of claim 1 are features (b) to (d) on my labelling].
"113. Furthermore, having regard to the complexity and amount of information obtained from bulk material analysis, it is indispensable to the management of that information that a person in the field should be readily aware of computers, computer algorithms and software to process and manage that information. This would also include knowledge of various analysis techniques in processing that information, including standard optimisation techniques. Consequently, I regard that the Common General Knowledge includes these analysis techniques and information technology software and general hardware, such as computers and computer readable storage media for that software, such as disks and CD-ROMs."
I have no reason to doubt Robinson's evidence about the common general knowledge and I accept as common general knowledge what he has stated. The applicant has not challenged by way of countering evidence anything in the above statements. I note that what Robinson says about features (b) to (d) of claim 1 is effectively acknowledged in the specification itself where it indicates that devices representing these features are well known in the art or commercially available. The matters referred to by Robinson in clause 113 logically follow from modern analysis techniques and systems available and well known before the priority date.
Novelty
An accepted test for novelty is the so-called "reverse infringement test" as set out in Meyers Taylor Pty Ltd v Vicarr Industries Ltd (1977) 137 CLR 228 at 235. Under this test if a citation discloses all the essential features of a claim so that it would constitute an infringement of the claim if the claim were in a patent, the claim will lack novelty.
In Bristol-Myers Squibb Co v F H Faulding & Co Ltd (2000) 46 IPR 553, the Federal Court noted that in the case of a paper anticipation, the reverse infringement test cannot be applied literally. This is because the infringement arises because someone hypothetically does what is suggested by the document. After reviewing the traditional authorities regarding prior publications, the majority concluded (at 576):
"What all those authorities contemplate, in our view, is that a prior publication, if it is to destroy novelty, must give a direction or make a recommendation or suggestion which will result, if the skilled reader follows it, in the claimed invention. A direction, recommendation or suggestion may often, of course, be implicit in what is described and commonly the only question may be whether the publication describes with sufficient clarity the claimed invention or, in the case of a combination, each integer of it."
The opponent relies on 4 documents in alleging that the claims lack novelty. I will consider these in turn.
Document B being the exhibit ARL-4
This is a copy of a document entitled "CHASM - A Model for Blending Stockpiles" by
G Robinson and J Van Der Touw. It is a technical report from CSIRO Division of Mathematics and Statistics bearing a date "November 1993" on page 1. Co-author Robinson is a declarant in this matter. There is evidence from Robinson that he distributed copies of the document to many people since or in 1993. Kamperman says he attended a seminar in or around October 1996 at which he obtained a copy of a report that he says was the same as Document B exhibited. I do not doubt that copies of a document of which Document B is a copy were published in Australia before the priority date.
Document B describes a computer software program CHASM (Cone-Handling Algorithm for Stockpile Modelling) for modelling the blending function of stockpiles such as in mining and mineral processing. In terms of what CHASM does the document says this:
"CHASM keeps track of the geometry of a stockpile as material is stacked onto the pile and as material is reclaimed from the pile. This allows the program to calculate how much ore from each lot reclaimed came from each batch of ore stacked. The grade of lots of material reclaimed can then be calculated, using information about the grade of the batches of ore stacked.
A fundamental form of stacking is that material stacked from a stationary source will form a cone. CHASM has been designed to handle the stacking of cones particularly efficiently, because most other forms of stacking and reclaiming are also treated using cones.
Stacking of ore by a tramming stacker is modelled using a series of point sources. This means that a series of overlapping cones is formed. Variation in stacking rate could be modelled by having the point sources contribute unequal amounts of material.
The position of material stacked on a stockpile is recorded at each point on a rectangular, horizontal grid. In effect, this means that the material on a stockpile is represented as a large number of prisms, with the position, shape and grade of each prism recorded. Boom and bridge reclaiming are handled by calculating for every prism the amount which would be reclaimed.
Tunnel loadouts are modelled by assuming that the flow of ore through a gate under a stockpile allows a chimney of ore to flow out first, followed by the formation of a conical depression at the top of the stockpile vertically above the gate. The ore from the surface of the conical depression flows down the chimney. This model for tunnel loadouts is thought to be a reasonable approximation to what happens in reality. However, the model is very difficult to verify and very difficult to calibrate. There are no competing models other than very simple ones, so this model should provide the best available estimates of grades of trains loaded using tunnel-loadouts."

The document defines a "batch" as being "a portion of material stacked onto a stockpile. It is assumed to be of consistent grade, consistent density and consistent angle of repose."
The document also mentions that CHASM "handles" 4 types of stackers and 3 types of reclaimers. By this I understand that the program can be selective of the type of stacker or reclaimer used so that the data is modelled specifically for such types. Furthermore, the document indicates that for each point on the grid representing the stockpile, "CHASM keeps track of a list of heights and batch identifiers. The batch identifiers provide a link to information measured for each batch: density, angle of repose for stacking and aspects of grade."
Robinson after discussing Document B expresses his conclusion that it discloses all the features of claim 1. However I am not satisfied that is indeed the case. The document discusses the CHASM program in terms of a system for building a mix bed of bulk materials. It also refers to means for building a stockpile, namely stackers, and that the CHASM software handles various stackers. Given those disclosures I consider that the features (a) and (b) of claim 1 are disclosed. Document B discloses CHASM using data concerning material grade type and density of "batches" of material stacked on the stockpile. These "batch identifiers" are described as providing "a link to information measured for each batch". Although there is no explicit disclosure of any manner or means for obtaining such or equivalent data, it is implicit that such data can only derive from related measuring and analysing devices operating on the material being delivered for stacking. I believe that this would be evident to a skilled addressee reading the document. Thus there is implicit disclosure of features (c) and (d) of the system of claim 1. It is clear from Document B that the CHASM program links information about the bulk material delivered (such as the batch identifiers) to specific locations on the stockpile. Thus feature (e) is also disclosed. The document makes it clear that CHASM keeps track of the bulk material both stacked and reclaimed at each point on the stockpile grid. It mentions that for reclaiming "we are interested in what has been removed and report this by specifying a list of volumes and batch identifiers." Thus what the document teaches is that the CHASM program enables data about the stockpile to be correlated for stockpile locations from which the "grade of lots of material reclaimed can then be calculated, using information about the grade of the batches of ore stacked." There is no suggestion or disclosure in the document that the CHASM program is adapted to make any predictions or prepare any reports concerning the aggregate composition of bulk materials in sectors of the stockpile. Thus there is no disclosure of means of the type required by feature (f) of the claim. Accordingly there is no disclosure of a system as claimed. Claim 1 is thus novel.
A similar conclusion regarding novelty based on Document B applies to claims 6, 10, & 13. With regard to claim 25 there is no disclosure of features (d) and (e) of that claim, that is devices gathering data on material fed by the stacker. It follows that features (f) and (g) of claim 25 are also not disclosed.
With regard to the system defined in claim 3, features (a) to (e) are as for claim 1 and are disclosed. Regarding feature (f), Document B indicates that the CHASM program creates a data base of bulk materials on a stockpile according to grid locations. There is no disclosure that there is a data base of the composition of the material for sectors of the stockpile. The system of claim 3 is thus also novel.
Regarding claims 18 and 21, these are directed to a "computer readable storage medium", and in each case for such a medium suitable for "use in a computer used in a method of building a mix bed". For each claim the definition limits the medium in that it is to be configured in a manner to cause the computer when used in the method to effect certain processing of data. There is no disclosure in Document B of a storage medium configured as defined in these claims. Hence these claims are also novel.
Thus all claims are novel in the light of Document B.
Document D being the exhibit ARL-6
This is a copy of a document entitled "QMASTOR - Quality Management and Stockpile Tracking Optimisation Routine". It is identified on the face sheet as a paper presented to the 37^th Australian Surveyors Congress held in Perth during April 1996. The authors are D Cameron, M Knijnikov and T Manton. The stated congress date precedes the priority date by nearly 2 years. Thus, whilst there is no evidence to otherwise establish the publication date of this document, I believe it is reasonable to conclude that it was available to the public before the priority date.
The document describes a system called QMASTOR for managing coal stockpiles during delivery and reclamation activities including blending. The document provides an overview in these terms:
"When many parcels of coal of different qualities are stockpiled together quality definition within the stockpile is blurred. … QMASTOR is a quality management and stockpile tracking system which solves the previously intractable problem of maintaining quality profiles of stockpiles during delivery and reclamation activities. It provides a real-time inventory status which allows proactive quality scheduling and obviates the need for expensive downstream sampling and analysis."
The document describes the QMASTOR system in relation to a coal delivery and storage facility for BHP Collieries Division at Port Kembla, NSW. It is indicated that the stockpile area ("#4 area") has dedicated and consolidated pads to receive coal and that up to 20 stockpiles of different coal types can be warehoused. The document further states that product stream reporting from the washery to the storage area "has been sampled and analysed by BHP's internal laboratory on exit from the washeries in 4 hourly sampling intervals. These 4 hourly coal parcels are delivered to #4 area by truck, whereupon a front end loader positions and compacts the parcels into layers." Later it states that "Coal from #4 area is delivered to port by truck in a predetermined mixture or blend. Typically, up to 6 stockpiles contribute coal for each blend."
The QMASTOR system links information from various sources to monitor operations in the stockpile area and keep track of the stockpiles. The document states that the system needed to deliver various solutions, including the following:
"- Development of a stockpile model which collated coal position data … , electronically sourced and collated delivery tonnage and quality information from a variety of steelworks databases and washery process control systems and retained a live model of each stockpile complete with maps, inventory and quality reporting systems.
- Development of a reclamation scheduling system from available accessible stock which meets contract specification for up to 13 quality parameters."
The document does not explicitly state whether different qualities of coal are placed on each stockpile. However it does say the software of QMASTOR was to:
"- Electronically source the 4 hourly tonnage and quality data pertaining to the rover data, collate and composite the quality data into individual stockpile files.
- Produce an extensive suite of maps and text reports to describe the resident tonnage and quality status of every stockpile".
The "rover data" appears to relate to loader positions and hence to deposit positions for the material on the stockpiles. The tracking of the loaders appears to be related to 25m x 25m grid zones of the stockpile area. It is implicit, I believe, that each stockpile contains material of variable quality.
Document D makes it clear that coal on exit from the washery has been sampled and analysed in 4 hourly intervals. Thus quality and tonnage data of 4 hourly parcels of coal being delivered for stacking from the washery is available. Thus, implicitly Document D discloses both means to analyse the coal being delivered for stacking for quality (composition) and also means to measure quantities being delivered. Document D thus discloses features (c) and (d) of claim 1. As it discloses front end loaders to build the stockpiles with delivered material, it also discloses features (a) and (b). The document reveals that QMASTOR collates the quality and quantity data for coal parcels with stacking location, thus feature (e) is also disclosed. The document indicates that QMASTOR collates the delivery data to provide "maps and text reports to describe the resident tonnage and quality status of every stockpile". However the document does not describe the nature of these reports for individual stockpiles. Importantly there is no disclosure to suggest that QMASTOR predicts or reports the aggregate composition of the bulk materials in sectors of a stockpile. Feature (f) of claim 1 is thus not disclosed. Accordingly claim 1 is novel in the light of Document D.
A similar conclusion regarding novelty based on Document D applies to claims 3, 6, 10, 13 & 25. With regard to the system defined in claim 3, there is no disclosure in Document D to suggest that QMASTOR provides "a real time data base of the current composition of the bulk materials in respective sectors of " a stockpile.
Regarding claims 18 and 21, these claims are also novel since there is no disclosure in Document D of a storage medium configured as defined in these claims.
Thus all claims are novel in the light of Document D.
Document F being the exhibit ARL-7
This is a copy of pages 37-39 from "The Australian Coal Review" April 1997 edition. It is an article by D Cameron about the QMASTOR system. At the hearing Mr Allen submitted that documents D and F could be treated as related documents thus providing a single source of prior art information. While both these documents relate to the QMASTOR system, there is however within these documents no explicit link one to the other. It is thus improper, I believe, to consider these documents together as a single source of information.
In my assessment Document F provides no disclosure differing in material respects from that in Document D. The claims are novel in the light of this document.

Document I being the exhibit ARL-10
This single sheet document is a copy of an article entitled "Computer Based Coal Tracking and Reporting System" by R Johnson. Whilst declarant Lowe in his identification of this document indicates that it comes from the May 1991 edition of "Australian Journal of Mining" at page 30, I note that the only identifier on the sheet is to "Australian Coal Miner" without any page or date markings. There is no explanation by Lowe about this difference from his identification of this document. Apart from the identification problem, there is also nothing provided in evidence to otherwise establish the publication date of the document exhibited. Whilst Robinson discusses this document he says nothing about its availability before the priority date.
The applicant's evidence and submissions did not raise issue with the publication of the document of this exhibit. Applicant's submissions about it merely dismissed its relevance for novelty purposes given its disclosure. However issues of novelty and inventive step must be compared with the prior art base as it existed before the priority date. In the present situation the existence of Document I within that prior art base has not been established. Accordingly Document I can not be relied upon to establish any finding of lack of novelty or lack of inventive step. Of course the party advancing material in evidence such as here bears the onus of proof of its publication before the priority date. Given these circumstances I need not consider Document I any further in this matter.
The QMASTOR system and alleged prior use
The opponent also relies on the use of the QMASTOR system in or around 1995 at the BHP Southern Collieries in NSW to allege that the claimed invention lacks novelty. Bagnall submits material in evidence that indicates that the QMASTOR system was in operation at the time and place claimed, being before the priority date. There is nothing placed in evidence about this use that provides information additional to that provided by Document D discussed earlier. In line with my earlier conclusions regarding the disclosure in Document D, I am not satisfied that the use of the QMASTOR system as stated renders the claims lacking in novelty.
Inventive step
Sections 7(2) and (3) of the Act relate to the requirement for assessing the existence of an inventive step. Those provisions, as applicable to the present application and insofar as they apply to the present circumstances advanced under this opposition ground, indicate that a claimed invention will lack an inventive step when compared with the prior art base if it would have been obvious to a person skilled in the art in the light of:

(a)the common general knowledge existing in the art before the priority date considered alone; or
(b)the common general knowledge existing in the art before the priority date considered together with information in a single document or through doing a single act, provided that the skilled person could, before the priority date, be reasonably expected to have ascertained, understood and regarded the information as relevant to work in the relevant art in the patent area.

(The provisions of s 7 applicable to the present application are those applying immediately prior to the amending act which came into effect in 2001.)

It is from the position of a non-inventive worker in the field equipped with the common general knowledge and together with any qualifying prior art information that the invention must be considered to assess the presence of an inventive step.
It is also useful to consider the problem the specification seeks to address in assessing inventive step. This enables a "problem-solution" approach to be employed in the assessment - see the Patent Office decision American Home Products Corporation [1994] APO 58 (28 September 1994). In that decision, the delegate of the Commissioner expressed the test in terms of the following four questions:
1.   What is the problem confronted by the application?
2.   Can the information in the document be considered for inventive step purposes?
(a)Is it part of the prior art base?
(b)Is it reasonable to expect it to have been ascertained, understood and regarded as relevant to work in the art?
3.   What does the citation disclose? and
4.   Is the solution obvious to the person skilled in the art in the light of the disclosure of the citation?
In considering question 4 one can consider "whether the hypothetical addressee faced with the same problem would have taken as a matter of routine whatever steps might have led from the prior art to the invention, whether they be the steps of the inventor or not". (Wellcome Foundation Ltd v V.R. Laboratories (Aust.) Pty Ltd ( 1981) 148 CLR 262 at 286)
One problem the specification identifies is the inability to make adjustments to the composition of portions of a mix bed to take account of interruptions in the supply of particular bulk material. Another is difficulty in making adjustments to correct an undesired aggregate composition within portions of a mix bed when building continuous-mode circular mix beds. The present invention is directed towards systems and methods to enable correction of aggregate composition irregularities detected in sectors of a mix bed while building the mix bed. This accords with the overall object of seeking to reduce the variability throughout the mix bed while it is being built.
Information reasonably expected to have been ascertained
In order to use prior art information in considering whether an invention lacks an inventive step the Act requires that the skilled person could, before the priority date, have been reasonably expected to have ascertained, understood and regarded the information as relevant to work in the relevant art in the patent area.
Mineral Control submits that the prior art documents put in evidence, namely Documents A to D, F to I identified in the Lowe declaration meet this requirement. Robinson in paragraph 115 (Robinson's 1^st) says that he would refer to relevant articles directed to particular industries which would have a particular interest in addressing problems in those particular industries, and would also consider systems in actual use in those industries. He said he would have looked for documents such as those identified as they represent the state of the knowledge of the current systems. Furthermore he says that there would be no difficulty understanding these documents or considering them relevant to solving problems stated in the opposed application.
I have earlier expressed some views about how I should treat Robinson's evidence. As Gamma-Metrics has filed no evidence answering the above statements I am left to consider them without any counter view. It seems to me that for at least the coal industry in Australia, there is considerable information exchange and dissemination via differing means, so that knowledge of new developments and systems become available to others in the industry on a regular basis. As such I believe that documents such as those referred to would be those ascertained and considered by persons in the art and thus qualify for the purposes of considering inventive step requirements. However in the present circumstances I am not prepared to include Documents G to I for that purpose. Document G is a copy of several pages reporting a conference held on 18-20 February 1998. There is no evidence when this report became available, particularly whether it was published before the priority date of 20 February 1998. Document H is a copy of some pages of a report of a congress held in Oct 1998 being after the priority date. Regarding Document I, for reasons given earlier in this decision I have dismissed this document from consideration.
Considerations - based only on common general knowledge
Mineral Control alleges claim 1 lacks an inventive step based only on the common general knowledge. Robinson in evidence arrives at this conclusion. Given the common general knowledge to which I have previously referred, a system involving the presence of features (a) to (d) of claim 1 would have been apparent to a skilled addressee before the priority date. Whilst computers and computer analysis also formed part of the common general knowledge, I am not satisfied that it necessarily follows that the skilled person would have arranged means to correlate data as feature (e) requires, particularly in linking the data to the different locations. Similarly I am not satisfied that it necessarily follows that the skilled person would have provided means adapted to process data as feature (f) of the claimed system requires, particularly concerning sectors of the mix bed. The common general knowledge as established does not go so far as to suggest that such further features were ones to adopt as a matter of routine and without invention. Thus I am not satisfied that claim 1 lacks an inventive step based solely on the common general knowledge.
My conclusion regarding claim 1 also equally applies in respect of the inventions of claims 3, 6, 10, 13 and 25. With regard to claims 18 and 21, the common general knowledge does not suggest a storage medium configured as defined, and thus these claims do not lack an inventive step based solely on the common general knowledge.
Considerations - based on documents
Mineral Control also alleges that the claimed invention lacks an inventive step given the Documents A, B, D and F considered with the common general knowledge. I will now address these, starting with Document B.
Document B

The disclosure of this document has already been considered above in the discussion on novelty. I found that the CHASM program described in the document was not adapted to make any predictions or prepare any reports concerning the aggregate composition of bulk materials in sectors of the stockpile (see feature (f)). The document in a passage on page 2 states that CHASM "can be used for estimating the grade of lots of material reclaimed from a stockpile". It also discloses the ability to keep track of the geometry of a stockpile and that it records the position of material stacked on the stockpile via grid position. CHASM records the material at each grid point by way of "batch identifiers". Thus the document not only discloses recording details about material being deposited on the stockpile at grid positions but also the reporting on reclaimed quantities.
In order to address the problem of undesired aggregate composition of mix bed material during forming of the mix bed, it would seem that nothing more than routine changes to the software program by a skilled person would enable predictions being provided of the aggregate composition in any desired sectors of the mix bed being formed. Desired sectors would encompass identified grid locations of the mix bed, individual grid locations being already monitored by the program. Such changes to the software program would, to a skilled person, involve no more than simple variations involving no inventive ingenuity in order to identify and compile different reports based on existing data about material already delivered and being delivered to the mix bed. The skilled person would therefore move from the disclosure of the citation to the invention of claim 1 without the need to exercise any inventive step. Claim 1 thus lacks an inventive step.
Claim 2 includes the additional feature of means adapted to respond to an undesired aggregate-composition prediction to cause stacking at a given location to be omitted. Robinson states, at paragraph 153 (Robinson's 1^st), that he would "regard that this would be a routine consequence of a system for predicting aggregate compositions of reclaimed material", but he gives no reason to support this view. However in his second declaration Robinson states, at paragraph 8, that

"… as the [prior art] documents do disclose the provision of a 'real-time' or current database of the aggregate composition, it is a routine step to use this current database so as to modify stacking of the stockpile to achieve a desired aggregate composition by considering varying the material stacked."

Robinson, in paragraph 9, goes on to state his belief that it is routine "from general principles of modelling" to use any model to predict what will happen given a few options or alternatives, and to choose a current alternative (for example, omitting stacking or performing additional stacking) which is predicted to lead to the best result.
There is nothing in Document B that suggests an action of either omitting to deposit material or to deposit further and different material at a given mix bed location based on current mix bed data. Although noting what Robinson says about modelling, there is also nothing to establish that it may have been common general knowledge in the art to take action to omit depositing material on a mix bed on determining or predicting the aggregate composition of a sector of a mix bed. Thus in seeking a solution to the problem, I do not see that omitting to deposit material was an option available to the addressee to use as a matter of routine and without some inventive ingenuity. That being the case the skilled addressee would thus not have arrived at a system as defined. Accordingly the invention of claim 2 does not lack an inventive step.
Claim 3 differs in disclosure from Document B in that there is no disclosure that the system forms a database of the composition of the material for sectors of the stockpile. However, as discussed already for claim 1, the software program monitors material in relation to individual grid locations. Following my discussion for claim 1, to vary the program to report the current composition of a sector of the mix bed would not involve any inventive ingenuity by a skilled person in the art. Claim 3 thus lacks an inventive step.
Claim 4 which is dependent to claim 3, includes means to adjust the data base to compensate for different characteristics of materials and their different tumbling effects when being stacked. The citation does not disclose adjusting the data recorded on the basis of different tumbling characteristics of the material. Robinson, at paragraph 154, states that he regards it as "routine to take into account additional characteristics of the bulk material to produce a more accurate database". It seems to me that the person skilled in the art would readily appreciate that the tumbling characteristics of material needed to be considered in accurately processing data when forming a mix bed. As such, to provide in the system means to compensate for such characteristics of the material stacked would, to the person skilled in the art, amount to a routine step to take devoid of any inventive ingenuity. Thus claim 4 also lacks an inventive step.
Claim 5 appends to claim 3 adding a feature similar to feature (f) of claim 1. In view of my discussion of the corresponding feature of claim 1 and my conclusion, on the same basis I conclude that claim 5 also lacks an inventive step.
My conclusion for claim 2 regarding any lack of an inventive step also applies to claim 6 given the similarity of the inventions claimed. Thus the invention of claim 6 does not lack an inventive step. The same conclusion applies to claim 7.
Claims 8 and 9 refer to the nature of the "sectors" to be reclaimed. Like claims 1 and 3 to which these claims are appended, they lack an inventive step given that sectors as specified are common general knowledge.
Method claims 10 to 17 correspond to various system claims as already discussed. Apart from claims 11 and 12, they all lack an inventive step for similar reasons as expressed for the respective corresponding system claims. Following my conclusions about claims 6 and 7, claims 11 and 12 do not lack an inventive step.
Claims 18 and 21 with their appended claims are directed to a storage medium for use in a computer used in a method of building a mix bed. Document B does not disclose a storage medium as defined in claims 18 to 24. Document B discloses the use of computer software to record and analyse data when building a mix bed. It is common general knowledge that the use of a computer storage medium is central to the operation of computers and data processing operations using a computer, with software programs being held on such storage facilities. To a person skilled in the art it would be reasonable to conclude that the CHASM software disclosed in Document B would utilise information on a computer readable storage medium to perform the desired processes. The methods to which the storage medium of these claims relate correspond to the methods defined in various claims already discussed and which I have concluded to be lacking an inventive step based on Document B. In the light of Document B and the common general knowledge I do not see any invention being required to formulate computer software and store it in a suitable computer operable interface in order to utilise a computer in the methods defined. The computer requirements as claimed would be readily identified by a skilled person in the art and involve no inventive ingenuity in associating them in use with the particular methods. Consequently I conclude that claims 18, 21 to 24 lack an inventive step.
Claim 19 appends to claim 18 but further characterises the computer in a manner similar to the feature introduced by claim 2. Like claim 2, claims 19 and 20 do not lack an inventive step.

100. As discussed under novelty, features (d) to (g) of claim 25 are not disclosed by Document B. However with regard to features (d) and (e), these are part of the common general knowledge and the specification itself tends to acknowledge that in the passage previously quoted from page 4 of the description. Thus insofar as these features are not disclosed by Document B, arranging a composition analyzer and a quantity measurement system in association with a stacker would be an option available to a skilled person to identify the characteristics of material about to be stacked.   As Document B discloses a means to correlate data via a computer program, to arrive at the invention of claim 25 would not involve any element of inventive ingenuity on the part of the person skilled in the art in the light of Document B considered with the common general knowledge. Claim 25 lacks an inventive step.
101. Claim 26 appends to claim 25, and claim 27 appends to claim 26. They further characterise the computer and its interaction with the stacker to permit the stacker to firstly, omit the deposit of fed bulk materials to the mix bed during deposition of at least one subsequent layer onto the mix bed (claim 26) and, secondly, cause the stacker to deposit a corrective quantity of bulk materials to the mix bed where deposit was omitted (claim 27). Claim 26 adds a feature similar to that defined in claim 2. In view of my discussion concerning the feature of claim 2 and my conclusion thereto, for analogous reasons I conclude that claim 26 also does not lack an inventive step. Claim 27 also does not lack an inventive step.
102. Thus, in summary, claims 1, 3-5, 8-10, 13-18, 21-25 lack an inventive step in the light of Document B considered with the common general knowledge.
Document D
103. Under the novelty heading I concluded that there was no disclosure in this document to suggest that QMASTOR predicts or reports the aggregate composition of the bulk materials in sectors of a stockpile. Thus although I found that features (a) to (e) of claim 1 were disclosed, feature (f) was not disclosed and hence claim 1 was novel.
104. Document D does indicates that QMASTOR collates the delivery data to provide "maps and text reports to describe the resident tonnage and quality status of every stockpile". It also states that QMASTOR "provides a real-time inventory status which allows proactive quality scheduling and obviates the need for expensive downstream sampling and analysis". Quality and tonnage data is collated and linked to loader position data based on 25m x 25m grid zones of the stockpile area. Thus it seems that with the QMASTOR software data is available based on stockpile locations within stockpiles.
105. The overall disclosure in Document D bears much similarity to that in Document B. They both disclose a system by which correlations are made about data in forming a mix bed. I believe my conclusions concerning claim 1 given Document B as already discussed are equally applicable to claim 1 and Document D regarding a lack of an inventive step. It would require nothing more than routine changes to the QMASTOR software program by a skilled person to enable predictions being provided of the aggregate composition in any desired sectors of a stockpile being formed. A skilled person would arrive at the claimed invention without the exercise of any inventive ingenuity. Claim 1 thus lacks an inventive step based on Document D and the common general knowledge.
106. Document D does not suggest an action of either omitting to deposit material or to deposit further and different material at a given mix bed location based on current mix bed data. Thus on a similar basis as discussed for claim 2 with regard to Document B, claim 2 does not lack an inventive step based on Document D.
107. With regard to the other claims, my conclusion is that claims 3-5, 8-10, 13-18, 21-25 also lack an inventive step in the light of Document D considered with the common general knowledge. The reasons for that conclusion are analogous to those given for the respective claims based on Document B and mindful of the disclosures in Document D already discussed for claims 1 and 2.
108. Thus, in summary, claims 1, 3-5, 8-10, 13-18, 21-25 lack an inventive step in the light of Document D considered with the common general knowledge.
Document F
109. Insofar as Document F provides a disclosure equivalent to Document D, my conclusions regarding any lack of an inventive step by the claims is the same.
Document A being the exhibit ARL-3
110. This document is a copy of an article entitled "New Control Strategies for Raw Mix Preparations" reported in IEEE Transactions on Industry Applications, Vol. 1A-22, No. 2, March/April 1986.   The copy placed in evidence is of poor quality since portions of text are either unreadable or otherwise missing apparently due to the copying process. Nevertheless I believe I understand its disclosure.
111. As I understand it Document A describes a process for homogenizing a product derived from two raw materials. It particularly refers to components for cement production. It refers to using PGNAA analyzers in order to sample and compute the composition of either the individual raw material products prior to a mill or of the product exiting from the mill. It seems the mill acts to crush and blend the raw materials. It mentions that sampling times can be as low as 3 minute intervals, and that by use of computer and control algorithms the feed rates of raw product stream can be adjusted to correct the mill product to a desired homogeneous composition. The mill product is directed to a storage silo.
112. Contrary to the view expressed by Robinson, in my view this document does not disclose a system for forming a mix bed of the type required by features (a) and (b) of claim 1. It does not disclose or suggest forming a mix bed composed of many layers of stacked bulk material where stacking has occurred at different locations of the bed.   It is also doubtful whether any reclaiming of material from the storage silo could be seen as the taking of "slices" of material. Document A also does not disclose features (d) to (f) of claim 1, something acknowledged by Robinson.
113. This document may be of interest to a skilled person given the method of sampling and analysis of materials and the corrective practices indicated to provide a mixture of homogeneous composition. However, I do not see that the document in the light of common general knowledge suggests to the skilled person the invention claimed. There is nothing to suggest that the disclosure may be applicable to predicting compositions in sectors of a mix bed based on material being delivered for stacking. There is also nothing to suggest that it would be useful to correlate composition analysis with quantities being delivered for stacking at particular locations on a mix bed. Consequently on the basis of Document A I conclude that a skilled person would not arrive at the claimed invention without the exercise of any inventive ingenuity.   Thus claim 1 does not lack an inventive step in the light of Document A. The same conclusion also applies to all other claims.
Manner of manufacture
114. Mr Allen for Mineral Control also submitted that the invention as claimed in any claim was not a manner of manufacture within the meaning of Section 6 of the Statute of Monopolies. The argument advanced in support was that as the features of the claimed invention were all known any patentability must come from the combination of those features. However Mineral Control submitted that the claim amounted to a collocation with each feature merely performing its normal function without any overall greater effect than the sum of the individual components. Ms Hustwick for Gamma-Metrics rejected this allegation saying there was an inter-relationship between the features leading to a new or improved result.
115. In my view the present invention as claimed amounts to a patentable combination. Even though certain features may be known, the claiming clauses make it clear that there is a working inter-relationship between features leading to a particular purpose or result.   For example, features (e) and (f) of claim 1 make it clear that there is a linking between the various features leading to the system performing to produce a particular calculation or result. There is thus a functional dependency between the features giving rise to something more than the effect of the sum of the individual features. The same is also true for the other independent claims. This is not a situation where from the features claimed there results something like a "mere placing side by side of old integers so that each performs its own proper function independently of any of the others" (per British Celanese Ltd v Courtaulds Ltd 52 RPC 171 at 193-194, at 193), like the situation in British Celanese or in Williams v Nye 7 RPC 62 (the sausage machine case). Thus I find that this ground of opposition has not been made out.
CONCLUSION
116. I have found that the specification does not offend against sections 40(2) and 40(3). I have also found that the claims do not lack novelty. However I have found that the invention claimed in claims 1, 3-5, 8-10, 13-18, 21-25 lacks an inventive step in the light of material in evidence.
The claims relate to a manner of manufacture.
117. Given my findings there is patentable subject matter in the specification. Accordingly I allow the applicant 60 days from the date of this decision to file suitable amendments to overcome the successful ground of opposition. If no amendments are filed within the time allowed, subject to any appeal to this decision, I will refuse the application.
COSTS
118. The usual practice is that costs should follow the event and the submissions for the parties were consistent with that approach. As I have found the opposition successful on the ground of lack of inventive step, costs should go against the patent applicant. I see no reason why this should not be the result in this case. Accordingly I award costs in this matter against Gamma-Metrics.
Trevor Bruhn
Delegate of the Commissioner of Patents
01 July 2003
Patent attorneys for the applicant : Madderns, Adelaide
Patent attorneys for the opponent : Davies Collison Cave, Melbourne