Inland Steel Company v the Broken Hill Proprietary Company Limited

[1992] APO 66

official notice

decision of a delegate of the commissioner of patents

Application        :    No. 584566 in the name of INLAND STEEL

COMPANY

Title:    Fume Control in Strand Casting of Free

Machining Steel

Action: Opposition under s.59 by THE BROKEN

HILL PROPRIETARY COMPANY LIMITED

Decision:    Issued            .  Specification

does not comply with s.40; claims not

novel; time to amend specification

allowed.

patents act 1990

decision of a delegate of the commissioner of patents

Re:Patent Application No. 584566 by INLAND STEEL COMPANY and

opposition by THE BROKEN HILL PROPRIETARY COMPANY LIMITED

under Section 59 of the Patents Act 1952

background

Patent application 584566 by Inland Steel Company (Inland) was advertised accepted on 25 May 1989. On 24 August 1989 The Broken Hill Proprietary Company Limited (BHP) lodged a notice of opposition to the application under sec 59 of the Patents Act 1952. Evidence in support of the opposition was served on 25 February 1991 after BHP had obtained a number of unopposed extensions of time. After itself obtaining unopposed extensions of time, Inland advised the Office through its patent attorney that it did not propose to lodge evidence in answer.

A hearing to determine the opposition was held in Melbourne on 13 August 1992.  Inland was represented by Ms Ann Slater, assisted by Mr Peter Heathcote, patent attorneys with Shelston Waters, and BHP was represented by Mr Greg Munt, patent attorney with Griffith Hack & Co.

THE SPECIFICATION

The specification states that the invention relates generally to fume control in steel making operations, and more particularly to fume control in the strand casting of steel to which fume-emitting alloying ingredients such as lead and bismuth are added.

In the strand casting of steel, molten steel is introduced from a ladle into a tundish and then directed into a casting mold where at least an outer shell of solidified steel is formed.  The fume-emitting ingredients may be added to the molten steel in the ladle, or to the stream of molten steel flowing from the ladle to the tundish.  Aside from the ladle, fumes may be emitted from the molten stream between the ladle and the tundish and from the molten steel in the tundish.

The partially solidified steel moves downstream from the casting mold into a water spray chamber where the steel is cooled and further solidified.  The steel strand then moves into a run-out chamber located at the downstream end of the spray chamber.  Relatively clean gases, devoid of fumes from the fume-emitting ingredients, are generated in the spray and run-out chambers.  The strand is cut into pieces at a torch-cutting station located immediately downstream of the run-out chamber.  Water sprays are used to wash scale and dross resulting from the torch-cutting step into a flume located beneath the torch-cutting station.  Torch-cutting of the solidified strand generates fumes from the fume-emitting ingredients in the strand which are removed from the locale by exhaust ducts.  These exhaust gases are wet and cool due to the use of the water sprays.  

The fumes emitted from the molten steel, or from the strand during the torch-cutting step, are at least initially in the form of lead or bismuth vapours which may then react with the atmosphere to form oxides of lead or bismuth.  Both forms are equally hazardous and must be prevented from escaping into the work- place environment.

The fumes collected from these steel making operations are normally carried by gases through a bag house where the fumes are removed from the gases and the gases are then exhausted to atmosphere.  However it is undesirable to pass the cool, wet  gases generated at the torch-cutting station through the bag house because the moisture in such gases can precipitate in the bag house and interfere with its fume-removing function.

The specification then indicates that the invention seeks to provide a method and apparatus for severely restricting the amount of toxic fume which can escape from the strand casting operation into the surrounding work- place environment.    

Thus, according to the invention, the stream of molten steel is enclosed in a shroud as it passes between the ladle and the tundish.  The tundish is covered and has an opening through which the molten steel may enter.  A movable exhaust hood is positioned between the ladle and the tundish with an exhaust inlet located immediately adjacent the opening in the tundish.  Baffles are provided to confine any fumes emitted through the opening in the tundish to the vicinity of the exhaust inlet.

The exhaust gases collected from the tundish while the latter is in its casting position during the casting operation, and before the tundish is emptied, are relatively hot and dry compared to the gases collected at the torch-cutting station.  In accordance with the invention, the gases from the tundish are mixed with the gases collected at the torch-cutting station at a location upstream of the bag house to raise the temperature of the gases from the torch-cutting station above their dew point to prevent precipitation within the bag house of moisture from the gases.    

After the tundish has been essentially emptied, it continues to emit some toxic fumes as it cools because of residual molten steel remaining in the tundish or sticking to its walls.  In accordance with the invention, the tundish and its associated exhaust hood are moved from a casting to a non-casting position, and the fumes which continue to be emitted from the tundish while the latter is in its non-casting position are collected through the exhaust hood.

However the gases collected from the tundish after emptying may not be hot enough to prevent precipitation in the bag house of moisture from the gases collected at the torch-cutting station, when the latter are mixed with the gases from the tundish.  The invention compensates for this heat deficiency by utilizing the clean gases generated at the run-out chamber.  These gases, consisting essentially of hot air, are relatively hot and dry compared to the gases generated at the torch-cutting station.  Precipitation of moisture in the bag house is in this instance prevented by mixing the gases from the run-out chamber with the cool, wet gases from the torch-cutting station.  The run-out chamber is located sufficiently close to the torch-cutting station so the the hot, dry gases retain sufficient heat at the time they are mixed with the gases from the torch-cutting station to maintain the temperature of the mixed gases above the dew point thereof when the mixed gases enter the bag house.

Large droplets of moisture, initially carried by the cool, wet gases collected at the torch-cutting station, are removed by passing these gases through a cyclone separator located upstream of the location where the gases from the torch-cutting station are mixed with gases from other locations in the strand casting operation.

There is a substantial delay between the time the molten steel from the ladle first enters the tundish and the time the strand is first subjected to the torch-cutting operation.  The hot, dry gases generated at the tundish during this period of delay are circulated so as to preheat the bag house prior to the introduction of exhaust gases collected at the torch-cutting station.  Preheating the bag house assists in preventing the precipitation therein of moisture from the gases generated at the torch-cutting station.

The fumes which are controlled in accordance with the invention may be either metallic vapors or oxides of the fume-emitting alloying ingredients, or both.

The specification ends with thirty-eight claims, of which claims 1, 6, 8, 9, 12, 18, 20, 27, 30, 31 and 34 are independent claims and read as follows:

"1.  In the strand casting of steel wherein undesirable fumes are
     generated, a method for preventing said fumes from polluting
     the work-place environment, said method comprising the steps
     of:

introducing a stream of molten steel from a ladle into a
     tundish located in a casting position below the ladle;

providing said tundish with a cover having an opening;

directing said molten steel through a conduit extending
     from the bottom of the ladle toward said opening in the
     covered tundish;

enclosing said conduit within a tubular outer shroud
     extending from said ladle bottom through said opening
     in the covered tundish;

adding fuel-emitting ingredients to said stream of
     molten steel in said outer shroud;

locating, between said ladle and said tundish, an
     exhaust hood having an inlet;

locating said inlet adjacent said top opening of the
     covered tundish;

collecting fumes generated in said tundish and said
     shroud at said exhaust hood through said inlet;

locating, adjacent said top opening, baffles extending
     between the bottom of the ladle and the top of the
     covered tundish;

and substantially confining said fumes to the vicinity
     of said exhaust inlet with said baffles.

6.  In the strand casting of steel wherein undesirable fumes are
     generated, a method for preventing said fumes from polluting
     the work-place environment, said method comprising the steps
     of:

introducing a stream of molten steel from a ladle into a
     tundish located in a casting position below the ladle;

collecting fumes generated in said tundish, said fumes
     being relatively hot and dry;

casting said molten steel into a strand at a location below
     the tundish;

torch cutting said strand;

generating fumes at said torch cutting step which are
     relatively cool and wet compared to the hot, dry fumes
     generated at said tundish;

there being a substantial delay period between the
     beginning of said molten steel introducing step at the
     tundish and said torch cutting step;

collecting gases containing said fumes from the torch
     cutting step and directing said gases through a bag house
     to clean the gases;

and directing gases containing the hot, dry fumes generated
     at said tundish through said bag house during said delay
     period to preheat the bag house before the fumes from the
      torch cutting step are directed into the bag house, thereby
     to reduce the precipitation of moisture in the bag house
     when the fumes from the torch cutting step are directed
     therethrough.

8.  In the strand casting of steel wherein undesirable fumes are
     generated, a method for preventing said fumes from polluting
     the work-place environment, said method comprising the steps
     of:

introducing a stream of molten steel from a ladle into a
     tundish located in a casting position below the ladle;

casting said molten steel into a strand at a location below
     the tundish;

spray cooling said strand downstream of the tundish;

torch cutting the strand downstream of said spray cooling
     step;

generating fumes at said torch cutting step which are
     relatively wet and cool;

and collecting gases containing said fumes from the torch
     cutting step and directing said gases through a bag house
     to clean the gases;

said gases being collected at a first collecting location
     directly below the location where said torch cutting step
     is performed and at a second collecting location
     immediately downstream of the location where said torch
     cutting step is performed and above said first collecting
     location.

9.  In the strand casting of steel wherein undesirable fumes are
     generated, a method for preventing said fumes from polluting
     the work-place environment, said method comprising the steps
     of:

introducing a stream of molten steel from a ladle into a
     tundish located in a casting position below the ladle;

casting said molten steel into a strand at a location below
     the tundish;

spray cooling said strand downstream of the tundish;

torch cutting the strand downstream of said spray cooling
     step;

generating fumes at said torch cutting step which are
     relatively wet and cool;

generating gases, immediately downstream of said spray
     cooling step and upstream of said torch cutting step, which
     are relatively hot and dry;

collecting gases containing said fumes from the torch
     cutting step and directing said gases through a bag house
     to clean the gases;

collecting the relatively hot, dry gases generated
     immediately downstream of the spray cooling step;

and mixing said relatively hot, dry gases generated
     downstream of said spray cooling step with said relatively
     cool, wet fumes from the torch cutting step, at a location
     upstream of said bag house.

12. In the strand casting of steel wherein undesirable fumes are
     generated, a method for preventing said fumes from polluting
     the work-place environment, said method comprising the steps
     of:

introducing a stream of molten steel from a ladle into a
     tundish located in a casting position below the ladle;

collecting fumes generated in said tundish, said fumes
     being relatively hot and dry;

casting said molten steel into a strand at a location below
     the tundish;

torch cutting said strand;

generating fumes during said torch cutting which are
     relatively cool and wet compared to the hot, dry fumes
     generated at said tundish;

collecting gases containing said fumes from the torch
      cutting step and directing said gases through a bag house
     to clean the gases;

and mixing said relatively hot, dry fumes from the tundish
     with said relatively cool, wet fumes from the torch cutting
     step at a location upstream of said bag house, during the
     period when fumes are generated at both the tundish and the
     torch cut-off location.

18. In the strand casting of steel wherein undesirable fumes are
     generated, a method for preventing said fumes from polluting
     the work-place environment, said method comprising the steps
     of:

introducing a stream of molten steel from a ladle into a
     tundish located in a casting position below the ladle;
     casting said molten steel into a strand at a location below
     the tundish;

spray cooling said strand downstream of the tundish;

torch cutting the strand downstream of said spray cooling
     step;

generating fumes at said torch cutting step which are
     relatively wet and cool;

collecting gases containing said fumes from the torch
     cutting step and directing said gases through a bag house
     having bags to clean the gases;

accumulating dust from said gases on the outside of the
     bags in said bag house;

and preventing the moisture in said wet, cool fumes from
     interferring with the removal of accumulated dust from the
     outside of said bags, by providing the outside of said bags
     with a membrane composed of polytetrafluoroethylene.

19. In a metallurgical process which generates gases containing
     dust and moisture, a method for cleaning said gases, said
     method comprising the steps of:

directing said gases through a bag house having bags;

accumulating dust from said gases on the outside of the
     bags in said bag house;

and preventing the moisture in said gases from interferring
     with the removal of accumulated dust from the outside of
     said bags, by providing the outside of the bags with a
      membrane composed of polytetrafluoroethylene.

20. An apparatus for strand casting steel, wherein undesirable
     fumes are generated, and for preventing said fumes from
     polluting the work-place environment, said apparatus
     comprising:

a ladle for containing molten steel;

a covered tundish having a top opening and located in a
     casting position below the ladle;

a conduit extending from the bottom of the ladle toward
     said opening in the top of the covered tundish;

said conduit comprising means for directing a stream of
     molten steel from said ladle to said tundish;

a tubular outer shroud enclosing said conduit and extending
     from said ladle bottom through said opening in the covered
     tundish;
     means for adding fume-emitting ingredients to said stream
     of molten steel in said outer shroud;

an exhaust hood located between said ladle and said tundish
     and having an exhaust inlet located adjacent said top
     opening of the covered tundish;

said exhaust hood comprising means for collecting fumes
     generated in said tundish and said shroud;

and baffles located adjacent said top opening and extending
     between the bottom of the ladle and the top of the covered
     tundish;

said baffles comprising means for substantially confining
     said fumes to the vicinity of said exhaust inlet.

27. An apparatus for strand casting steel, wherein undesirable
     fumes are generated, and for preventing said fumes from
     polluting the work-place environment, said apparatus
     comprising:

a ladle;

a tundish comprising means for receiving a stream of molten
     steel from said ladle;

means for collecting fumes generated in said tundish;

means for casting said molten steel into a strand at a
     location below said tundish;

means located downstream of said casting means, for torch
     cutting said strand and for generating fumes which are
     relatively cool and wet compared to the fumes generated at
     said tundish;

means for providing a substantial delay period between the
     initial reception of said molten steel at the tundish and
     the time said strand first reaches said torch cutting
     means;

a bag house;

means for collecting gases containing said fumes generated
     at the torch cutting means and for directing said gases
     through said bag house to clean the gases;

and means for directing gases containing the fumes
     generated at said tundish through said bag house during
     said delay period to preheat the bag house before the fumes
     generated at said torch cutting means are directed into the
     bag house.

30. Apparatus for strand casting steel, wherein undesirable
     fumes are generated, and for preventing said fumes from
     polluting the work-place environment, said apparatus
     comprising:

a ladle;

a tundish comprising means for receiving a stream of
     molten steel from said ladle;

means for casting said molten steel into a strand at a
     location below said tundish;

means for spray cooling said strand downstream of the
     tundish;

means for torch cutting the strand downstream of the spray
     cooling means and for generating fumes which are relatively
     wet and cool;

a bag house;

means for collecting gases containing said fumes generated
     at the torch cutting means and for directing said gases
     through said bag house to clean the gases;

said gas collecting means comprising means for collecting
     gases at a first location directly below said torch cutting
     means and means for collecting gases at a second location
     immediately downstream of said torch cutting means and
     above said first collecting location.

31. Apparatus for strand casting steel, wherein undesirable
     fumes are generated, and for preventing said fumes from
     polluting the work-place environment, said apparatus
     comprising:

a ladle;

a tundish comprising means for receiving a stream of
     molten steel from the ladle;

means for casting said molten steel into a strand at a
     location below said tundish;

means for spray cooling said strand downstream of the
     tundish;

means for torch cutting the strand downstream of the
     spray cooling means and for generating fumes which are
     relatively wet and cool;

means for generating relatively hot, dry gases immediately
     downstream of said spray cooling means and upstream of said
     torch cutting means;

a bag house;

means for collecting gases containing said fumes generated
      at the torch cutting means and for directing said gases
     through said bag house to clean the gases;

means for collecting the relatively hot, dry gases
     generated immediately downstream of the spray cooling

     means;

and means for mixing said relatively hot, dry gases
     generated downstream of said spray cooling means with said
     relatively cool, wet gases from the torch cutting means, at
     a location upstream of said bag house.

34. An apparatus for strand casting steel, wherein undesirable
     fumes are generated, and for preventing said fumes from
     polluting the work-place environment, said apparatus
     comprising:

a ladle;

a tundish comprising means for receiving a stream of
     molten steel from said ladle;

means for collecting fumes generated in said tundish;

means for casting said molten steel into a strand at a
     location below the tundish;

means located downstream of said casting means for torch
     cutting said strand and for generating fumes which are
     relatively cool and wet compared to the fumes generated
     at said tundish;

a bag house;

means for collecting gases containing said fumes
     generated at the torch cutting means and for directing said
     gases through said bag house to clean the gases;

and means for mixing said fumes from the tundish with said
     relatively cool, wet fumes from the torch cutting means,
     at a location upstream of said bag house."

THE EVIDENCE

The evidence in support of the opposition consists of statutory declarations by Stig Strangert, David Lyle Webster and Warren David Adamson accompanied by various exhibits.  In addition there is a declaration by Susan Moore, a librarian, to establish the date of publication of one of the exhibits to Mr Strangert's declaration.  As indicated above, no evidence in answer was lodged.  I will discuss the relevant parts of the supporting evidence where appropriate in my decision.

DECISION

The notice of opposition lists all grounds available under sub-sec 59(1).  At the hearing Mr Munt indicated that only the grounds of obviousness, lack of novelty and non-compliance with sec 40 would be pursued.

Obviousness

The question of obviousness involves an investigation of whether the invention would have been obvious to a non-inventive skilled worker in the field equipped with the common general knowledge as at the priority date (see Wellcome Foundation Limited v VR Laboratories (Aust) Pty Ltd (1982) RPC 343). Thus a consideration of the question of obviousness must be made against the background of the common general knowledge in the art in Australia. Guidance as to what constitutes such knowledge may be found in Minnesota Mining and Manufacturing Co v Beirersdorf (Australia) Ltd (1980) 144 CLR 253.

Mr Munt submitted that significant weight should be placed on the statements made by the declarants for BHP as to the state of the common general knowledge in view of their expertise in the field of the invention and BHP's predominance in that field in Australia.  He also pointed out that Inland had not lodged any evidence which contested the evidence in support.  While acknowledging BHP's standing in the steel making industry in Australia, Ms Slater argued that none of its declarants is a skilled but non-inventive worker in the relevant field as required by the case law on obviousness and, consequently, their evidence is of little or no probative value.

Mr Strangert deposes that he is an honours graduate in mechanical engineering from Lund University in Sweden.  At the time of making his declaration he was a senior engineer with a company known as Flakt Australia, a position he has held since 1983.  His responsibilities have included the application of fabric filtration to a wide range of processes, mainly in the power generation, metallurgical and mineral industries, and the design, testing and commissioning of other types of air pollution control equipment.  Throughout this time he has served as a consultant to other companies, particularly in the boiler fly filtration area, and has actively participated in many air pollution control conferences.  He is also the author of a number of technical publications on this subject.

Mr Webster deposes that he is an honours graduate in metallurgy  from Newcastle University.  He joined BHP in January 1970, and in the period 1979 to August 1985 was responsible for developments in certain steelmaking practices.  Since then he has had quite a deal of experience in relation to bloom caster commissioning and technology development, and at the time of making his declaration was responsible for all aspects of bloom caster operations and maintenance.
Mr Adamson deposes that he is an honours graduate in chemical engineering and, following several years of employment overseas, joined BHP in 1981 as a process engineer.  He has since gained experience with the bloom caster plant and associated equipment, and at the time of making his declaration was managing the electrical and mechanical maintenance of such plant and equipment.     

Taking account of the information placed before me on this matter, including the nature of the invention, I consider that the non-inventive skilled worker in the present circumstances is a person having "intermediate" technical skills as per Graham J in American Cyanamid Company v Ethicon Limited [1979] RPC 215 at page 246. I therefore accept Mr Munt's submission that Messrs Webster and Adamson are appropriately skilled workers in the field of the invention. Further to this I note that Mr Adamson took up employment with BHP in 1981 and, consequently, I do not agree with Ms Slater's assertion that he had not acquired relevant experience in the field before the priority date.

However these declarants effectively do no more than generally corroborate the evidence of Mr Strangert.  Ms Slater contended that Mr Strangert was not in a position to comment authoritatively on the state of the relevant common general knowledge as his technical expertise lies outside the field of steel making.  I am inclined to agree with Ms Slater in this instance since Mr Strangert's involvement with the application of fabric filtration in the "metallurgical and mineral" industries does not, in my opinion, establish that he has any direct experience in the steel making industry, let alone the strand casting of steel.  I therefore regard the evidence in support as contributing little to the determination of what is the common general knowledge in the field of the invention.

Even if I were to assume for the moment that Mr Strangert is an appropriately skilled worker, his evidence fails to prove that the disclosures of the various articles attached as exhibits to his declaration constituted matters of common general knowledge.  It should be noted here that the fact that these articles may have been available on a library shelf or in circulation does not itself mean that they can be regarded as common general knowledge (Riekie & Anor v M J McGrath Pty Ltd & Anor (1986) AIPC 90-311 and British Acoustic Films Ltd v Nettlefold Productions (1936) 53 RPC 221). I also note that the evidence fails to establish publication in Australia of the article attached as Exhibit SS-2. As a consequence, Mr Strangert's evidence would at best serve to establish that only some of the individual features of the claimed invention were part of the common general knowledge.

Furthermore, and as pointed out by Ms Slater, where a combination patent is involved, it must be shown that it would have been obvious to not only select the separate integers which make up that combination, but also to select the particular combination of those integers in question (Minnesota Mining and Manufacturing v Bierersdorf (supra).  In the present case the evidence before me does not establish that it would have been obvious for a so-called non-inventive skilled worker to select, without the advantage of hindsight, the individual features of the claimed invention and combine them in the manner specified by any one of the independent claims to obtain fume control in the strand casting of steel.  In this respect it appears to me that the conclusions drawn by Mr Strangert, particularly in paragraph 6, are based on an ex post facto analysis of the claimed invention, an approach which has been crticised in many courts (see Palmer v Dunlop Perdriau Rubber company Limited (1937) 59 CLR 30, British Acoustic Films v Nettlefold (supra) and British Westinghouse Electric and Manufacturing Co Ltd v Braulik (1910) 27 RPC 209).

On the basis of the foregoing, I find that BHP has provided insufficient evidence to establish the ground of obviousness.

Novelty

This ground was argued on the basis of the declaratory evidence lodged in support of the opposition, rather than direct evidence of prior documentary publication or prior use.

The test for novelty is whether an alleged anticipation is the same in substance as the claim in suit so that the alleged anticipation would, if the patent were valid, constitute an infringement (Nicaro Holdings Pty Ltd v Martin Engineering (1990) 91 ALR 513 and R D Werner & Co Inc v Bailey Aluminium Products Pty Ltd 85 ALR 679). This test is commonly referred to as the reverse infringement test which was formulated by Aickin J in Meyers Taylor Pty Ltd v Vicarr Industries Limited (1977) 137 CLR 228 at page 235.

As indicated above, the evidence in support at most establishes the prior existence of individual features of the various combinations defined.  I consider that the claimed invention differs from the prior art as established by the evidence in matters which clearly make a substantial contribution to its performance, so that the differences amount to more than mere workshop variations or mechanical equivalents.  As a result the prior art in question would not constitute an infringement of the claimed invention and the reverse infringement test is not satisfied.

These findings do not, however, apply to claim 19.  Unlike the other independent claims which are concerned with preventing work-place pollution by fumes generated in the strand casting of steel, claim 19 is simply directed to a method for cleaning gases generated in a metallurgical process.  The article attached as Exhibit SS-1 to Mr Strangert's declaration discusses how such gases may be cleaned through the use of bag houses having a number of filtering elements or bags.  The article discloses TEFLON (i.e. polytetrafluoroethylene (PTFE)) as a filter material.  Although it is not clear whether the filtering elements are wholly composed of PTFE, or merely provided with an outer membrane of PTFE as in claim 19, I consider the article to in either event fall within the scope of claim 19 and thus deprive that claim of novelty.  That a claim may be found non-obvious and yet lacking in novelty is of course a reflection of the different nature of the evidence available to be considered for these particular grounds of opposition (Sunbeam Corporation v Morphy-Richards (Australia) Pty Ltd 35 ALJR 212).

Mr Munt also contended that the claimed invention comes within the concept of a "working direction" and as a consequence is not directed to patentable subject matter.  This is an issue which actually falls within the opposition ground of manner of manufacture, rather than lack of novelty.  Nevertheless, from the evidence before me it seems that the production of strand cast steel is itself a well known process.  However based upon my earlier findings I see no reason to conclude that the claimed invention lies in the application of known fume extraction technology to this environment in a manner which is not influenced by the nature of the process involved as alleged by Mr Munt.  The claimed invention therefore does not simply reside in operating instructions for the working of a known process or an old apparatus to achieve an old result more efficiently (Quigley Co Inc's Application [1977] FSR 373) and, accordingly, I do not agree with Mr Munt's contention that the claims define mere working directions. For similar reasons, I do not agree with Mr Munt that the claimed invention is in respect of an "analogous use".

Section 40

Mr Munt submitted that the extent of the invention defined by the claims is not clearly apparent due to the fact  that different claims are directed to different combinations of integers.  I agree with this submission, and would add that as a further consequence the specification does not fully describe the invention as it is not possible to ascertain what the invention is from a fair reading of the specification as a whole (Welch Perrin & Co Pty Ltd v Worrel 106 CLR 588). The specification, particularly between pages 3 and 5, emphasises certain features without clearly indicating which features are essential to the invention. In this regard it is not apparent from the specification that these features simply relate to different aspects of the same invention as argued by Ms Slater. As I am unable to determine what is the invention described, I do not know whether the claims define the invention so as to ensure that the specification is internally consistent. However at this stage I note that not all of the features emphasised in the description are included in each independent claim.

I also note that the substantial delay which occurs between the time the molten steel first enters the tundish and the time the strand is first subjected to the torch-cutting operation appears from the specification at page 4 to be an inevitable consequence of the strand casting operation itself and does not, as is suggested by claim 27, constitute an output from a physical component of apparatus according to the invention.

Finally I observe that while the invention is stated by the specification to relate to fume control in the strand casting of steel, claim 19 is not so-limited.  In addition it seems from a general reading of the specification that the combination of features defined by this claim does not represent the true nature of the invention.

Conclusion

I have found that the opposition succeeds on the grounds of lack of novelty and non-compliance with sec 40, and I allow Inland 60 days from the date of this decision to propose amendments accordingly.    

In accordance with the general principle that costs follow the event, I award costs against Inland.

O.L.Haggar
Delegate of the Commissioner of Patents

Patent attorneys for the applicant  :  Shelston Waters,

Sydney

Patent attorneys for the opponent   :  Griffith Hack & Co,

Melbourne