Kevin George Schulz v Kenneth Frank Hunter

[1988] APO 42

In the Matter of the Patents Act 1952 - and - In the Matter of Application No. 555565 for a Patent by KEVIN GEORGE SCHULZ - and - In the Matter of Opposition thereto under Section 59 by KENNETH FRANK HUNTER.

 

DECISION OF A SUPERVISING EXAMINER OF PATENTS:

Background

Kevin George Schulz filed patent application 555565 entitled "Apparatus for Cleaning Roofs, Floors and Other Surfaces" on 6 January, 1983 accompanied by a provisional specification. The complete specification was filed on 6 January, 1984, and advertisement of acceptance of the application appeared in the Official Journal of 2 October, 1986.

Kenneth Frank Hunter lodged a notice of opposition to the application under section 59 on 12 November, 1986 and completed service of his evidence-in-support by 24 March, 1987. The applicant served his evidence-in-answer on 23 December, 1987. No evidence-in-reply was served and the matter was set down for hearing on 13 September, 1988 in Brisbane. The applicant was represented at the hearing by Mr. J.G. Adams, patent attorney of Grant Adams & Co., Brisbane and the opponent was represented by Mr. P.C. Fisher, patent attorney of G.R. Cullen & Co., Brisbane. Both the applicant and opponent attended the hearing.

The grounds of the opposition listed on the notice of opposition are those grounds specified in paragraphs (a) to (I) of sub-section 59(1) of the Act.However, the only grounds relied upon at the hearing were those listed in paragraphs (e) and (h)(i.e. prior publication and lack of novelty).

The Specification

The invention the subject of the opposed specification relates to an apparatus for cleaning roofs, floors and other surfaces.The specification refers specificallyto cleaning corrugated asbestos cement sheets which are commonly used for roofing material.Prior cleaning techniques have included manual scrubbing which it is stated is very laborious, time consuming and likely to result in "furring" of the surface of the sheeting.It is then stated that the object of the invention is to provide an apparatus that effectively cleans such roofing material and also "other surfaces, such as factory floors, driveways and so on" in a manner which is quick, easy and economical compared to conventional methods previously used.

There follows a consistory statement equating with claim 1.The specification describes one embodiment of the invention with reference to 3 figures of drawings.Illustrated in the drawings is an apparatus for supplying high pressure water to the surface over which the apparatus moves.The apparatus comprises an open-bottomed body (similar to that on a rotary lawn mower) mounted on front and rear rollers to allow movement of the apparatus over the surface to be cleaned.Inside the body is mounted a rotary assembly which comprises a central hub having two oppositely extending tubular arms extending therefrom.At the outer end of each arm is mounted a spray jet. The rotary assembly is able to rotate about a vertical axis positioned substantially through the centre of the body. In operation of the apparatus, high pressure water is supplied by a hose to an intake chamber on the body and then to the rotary assembly and thus to the spray jets. Due to the orientation of the spray jets, when water is supplied the rotary assembly is caused to rotate and direct water downwards through the open-bottom of the body onto the surface over which the apparatus is moved.

The specification concludes with 8 claims which are as follows:

"1. Cleaning apparatus for roofs, floor and like surfaces including:

a mobile body,

means for propelling the body over a surface to be cleaned,

an open-bottomed spray-jet housing in the body,

a rotor assembly in the spray-jet housing, rotatable about an axis substantially perpendicular to the said surface,

a plurality of spray-jet nozzles on the rotor assembly, directed towards the said surface, supply means for directing cleaning fluid under pressure to the spray-jet nozzles, and means for rotating the rotor assembly.

2. Cleaning apparatus according to Claim 1 wherein:

the body is mounted on front and rear rollers.

3. Cleaning apparatus according to Claim 2 wherein:

means are provided for raising and lowering the body in parallelism relative to the rollers.

4. Cleaning apparatus according to either of the preceding claims wherein the rotor assembly includes:

an intake chamber fixed in the body,

a feed pipe leading downwardly from the intake chamber,

a rotor hub rotatable on the feed pipe, tubular spray-jet arms radiating from the rotor hub and communicating, within the rotor hub, with the feed pipe,

the spray jet nozzles being connected to the distal end portions of the spray jet arms and the supply means including a supply line for connection to a hose and leading, by way of a control valve, to the intake chamber.

5. Cleaning apparatus according to Claim 4 wherein:

a pressure gauge above the body is connected to the intake chamber.

6. Cleaning apparatus according to any one of the preceeding claims wherein:

the rotor assembly includes a sole plate below the spray jet nozzles and formed with apertures to permit cleaning fluid ejected from the nozzles to pass therethrough.

7. Cleaning apparatus according to any one of the preceding claims wherein:

the means for rotating the rotor assembly comprises the spray jet nozzles which are so inclined relative to the axis of rotation of the rotor that, when cleaning fluid is ejected under pressure from the said nozzles, the rotor is rotated.

8. Cleaning apparatus substantially as herein described with reference to the accompanying drawings."

The Evidence

The evidence-in-support of the opposition consists of statutory declarations by Malcolm Bray Pilcher and Kenneth Frank Hunter.

Mr. Pilcher is the Managing Director of Hanson Sykes Pumps Pty. Ltd., which Company is involved in the sale of pumping systems including high pressure pumping systems and compressors for pressurised fluid cleaning systems. He exhibits with his declaration the following exhibits:

(i) MBPL - brochures on a high pressure water cleaning device manufactured by Harben Systems Limited, UK, known as a Harben "Hoverclean";

(ii) MBP2 - copies of photographs and brochures relating to a Harben "Century Hoverclean" and a heavy duty "Hoverclean";

(iii) MBP3 - photographs of a heavy duty Harben "Hoverclean".

Mr. Pilcher declares that during the period 1979-1984, his company promoted the above devices and sold six "Hovercleans" to customers in New South Wales, Victoria and Queensland.

Mr. Hunter is the opponent and declares that he is a contract cleaner specialising in the use of high pressure water blasting equipment. With his declaration he exhibits the following exhibits:

(i) KFHI - the opposed patent specification;

(ii) KFH2 - US Patent Specification 3748050 in the name of Poppitz (hereinafter called the-Poppitz specification);

(iii) KFH3 - US Patent Specification 4047666 in the name of Hart (hereinafter called the Hart specification);

(iv) KFH4 - document from Australian Patent Office detailing publication of the Poppitz and Hart specifications; and

(v) KFH5 - letter from B.E. Hart, Technical Director of Harben Systems Limited to G.R. Cullen & Co.

The evidence-in-answer consists of statutory declarations by Kevin George Schulz and Alfred G. Durey.

Mr. Schulz is the applicant and declares that he is a cleaning and painting contractor with over 20 years experience. He exhibits with his declaration a number of exhibits as follows:

(i) KGS-1 - the provisional specification lodged with the present specification;

(ii) KGS-2 - photocopy of a photograph of the device as disclosed in the provisional specification;

(iii) KGS-3 - photocopies of photographs of a later version of the cleaning device;

(iv) KGS-4 - copy of testimonial letter by Mr. A.G. Durey.

(v) KGS-5 - copy of letter from Grant Adams & Co. to G.R. Cullen & Co.

Mr. Durey declares that he is a contract cleaner of approximately 18 years experience. He exhibits with his declaration a copy of a testimonial letter signed by him. (Also exhibited with Mr. Schulz's declaration; KGS-4).

On reviewing all the evidence before me, I consider that only the Poppitz and Hart specifications are directly relevant to the issues in these proceedings. (Exhibits MBPL to MBP3 relate to the commercial versions of the apparatus disclosed in the Hart specification and are also relevant, but as they are not as detailed as the Hart specification, I need not refer to them.) The Poppitz Specification This specification was published in Australia on 5 June, 1974. It discloses a cleaning device using high pressure cleaning fluid. The device comprises an open-bottomed housing which consists of a flat disc-like top wall joined to a circular peripheral side wall. Inside the housing is a rotary or "spinner" assembly which rotates about a vertical axis through the centre of housing. The rotary assembly includes a pair of diametrically opposed, outwardly extending tubular members. Mounted on the outer ends of each tubular member is a nozzle. In use, high pressure fluid is supplied to the rotary assembly via a hose, along the tubular members to the nozzles. The nozzles are so arranged that when pressurised fluid is supplied, the rotary assembly rotates about the vertical axis and fluid is directed at the surface to be cleaned.

The specification also discloses that the apparatus can be mounted on wheels and supplied with a handle to enable the apparatus to be moved. The wheels can be equipped with means for adjusting the height of the device above the surface to be cleaned. In addition the device can be fitted with brushes on the lower edge of the side wall of the housing to assist with cleaning of the surface. Finally in order to protect the rotary assembly from damage by projections on the surface to be cleaned, an open grill or guard may be fitted over the bottom of the housing.

The Hart Specification

This specification was published in Australia on 26 January, 1978. It discloses an apparatus very similar to that in the Poppitz specification differing though by the inclusion of an air entry port in the top of the housing and a fan mounted on the rotary assembly to rotate therewith. The fan comprises a plate (called a "lower cover member") upon which are mounted a number of radially extending upstanding blades. The lower cover member is also provided with openings which are aligned with the nozzles to allow passage of the fluid to the surface to be cleared. (Exhibit MBPl shows a clearer view of the fan.) In use, it is said that the fan draws air in through the air entry port and by directing it to the space between the lower cover member and the surface to be cleaned it thereby lifts the apparatus off the surface, in much the say way as a hovercraft operates. In all other respects it operates in the same way as the apparatus of the Poppitz specification.

Decision

Before comparing the disclosures of the Poppitz and Hart specifications with the invention as claimed, I will briefly summarise the submissions made by both parties.

Mr. Adams submitted that while the Poppitz and Hart specifications disclose high pressure fluid cleaning machines, these were not suitable for cleaning corrugated asbestos roofs. This, he said, was due to the large amount of overspray produced by these types of machines. It was submitted that the present invention avoids this by having the nozzles spaced inwardly from the side wall or peripheral skirt of the housing and also by having front and rear rollers, these features enabling the spray to be confined and deflecting any overspray back towards the roof surface.

Mr. Fisher submitted that Mr. Adams' submissions were directed to the effectiveness of the machine over the prior art devices but not to the inventive merits of it. Furthermore, the features referred to by Mr. Adams were not disclosed in the specification as providing the advantages mentioned nor are the claims limited to such features.

With regard to the features referred to by Mr. Adams, Mr. Fisher has made valid points. All claims are silent on any feature of the nozzles or jets being mounted on the rotor assembly in such fashion as to be spaced inwardly of the side wall to any specific extent. Furthermore, there is no particular disclosure relating to the spacing of the nozzles from the side wall in the description nor any suggestion that the invention is concerned with confining or limiting overspray. Mr. Adams did refer me to the drawings, but I feel that they alone provide only a general indication as to the possible positioning of the nozzles. As for the rollers, they appear in the definition of claim 2, but there is no indication in the specification that they have any purpose other than to support the machine - however I believe an addressee when viewing the particular roller arrangement shown in the drawings, where the rollers are mounted close to the housing, would appreciate that they could confine spray fore and aft of the apparatus when operating on a flat surface.

As stated above, Mr. Adams argued that the prior art devices were not suitable for cleaning corrugated asbestos sheeting because of overspray which could lead to asbestos fibres being dispersed into the atmosphere. While this may be so, I note that the present claims are in no way limited to apparatus suitable only for cleaning corrugated sheeting and in fact the object of the invention is concerned with apparatus for cleaning a range of surfaces. I consider that the Poppitz and Hart devices are equally capable of cleaning a range of surfaces, including corrugated sheeting.

Turning now to a comparison of the clans with the Poppitz and Hart specifications which I have previously summarised, I am of the opinion that these two specifications clearly disclose apparatus having all the features of claim 1. Similar comments can be made in relation to claim 7. In relation to claims 4 and 6, I consider that the additional features of these claims are disclosed in the Hart specification: clearly, the fan element disclosed in the Hart specification falls within the definition of the "sole plate" in claim 6. Consequently, the invention defined by these claims has been prior published.

In relation to claims 2, 3, 5 and 8, I consider that these claims do not add any feature which could be said to make a substantial contribution to the working of the device over the cleaning devices disclosed in the Poppitz and Hart specifications. I therefore conclude that the invention defined by these claims lacks novelty (see Griffin v. Isaacs (1942) AOJP 739).

Therefore, I consider that all the claims have been anticipated by the Poppitz and Hart specifications.

Conclusion

I find that the opposition succeeds on the grounds that the invention claimed is prior published and not novel. I cannot say for certain that there is no patentable subject matter disclosed in the specification. Accordingly, rather than refuse the application at this stage I will allow the applicant 60 days from the date of this decision to consider and if thought appropriate request any amendment action. Unless a request to amend is filed in that period or the application withdrawn, and subject to any appeal being filed against this decision, I will refuse the application.

I award costs against the applicant.

(T.R. BRUHN)

Supervising Examiner of Patents

10 Nov 1988

Patent Attorneys for the Applicant Grant Adams & Co., Brisbane. Patent Attorneys for the Opponent : G.R. Cullen & Co., Brisbane.