Lech Pawlowksi v F.F. Seeley Nominees Pty. Ltd

[1986] APO 6

In the Matter of the Patents Act 1952

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In the Matter of Application for Extension of Term of Petty Patent No. 540573 in the Name of LECH PAWLOWKSI

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In the Matter of Notice under Section 68B.(3) by F.F. SEELEY NOMINEES PTY. LTD.

DECISION OF A SUPERVISING EXAMINER OF PATENTS:
Background
         On 8 December, 1983 Lech Pawlowski made application under the provisions of Section 51 for a Petty Patent for an invention entitled "Evaporative Cooler".  Petty Patent No. 540573 was sealed on the application on 29 November, 1984; on 16 October, 1985 the patentee applied for extension of term and on 29 October, 1985 F.F. Seeley Nominees Pty. Ltd. (Seeley) lodged notice under sub‑section 68B.(3) accompanied by a statutory declaration, a copy of USP 3,867,486 and copies of extracts from text books on engineering and fluid mechanics.  In matters of this sort where the Act does not provide standard procedures to be followed the provisions of regulation 72 become applicable.  In this case, because of the nature of the evidence lodged with the sub‑section 68B.(3) notice, the delegate of the Commissioner determined that the patentee was entitled to a period of three months in which to lodge evidence at the Office on his own behalf.
         Subsequently the matter came to hearing in the 1986 February sessions at Melbourne.  At the hearing, Mr. R.S. Hind, patent attorney of Davies &

Collison, Melbourne, represented the patentee and Mr. R.K. Maddern, patent attorney, of R.K. Maddern & Associates, Adelaide, represented F.F. Seeley Nominees Pty. Ltd.
The Specification
         The description opens with the statement that the present invention relates to evaporative coolers.  It continues:

"Evaporative coolers may be used for cooling buildings by drawing air from the atmosphere through moistened pads and discharging the air through suitable ducting into the building.  One problem associated with previously‑proposed evaporative coolers is that of noise generated by fan‑induced air flow through the cooler.

A requirement accordingly exists for an evaporative cooler which will operate with reduced noise levels."

Immediately thereafter is a description of the invention in the same terms as the claim.  The preferred embodiment is then described with respect to three figures of drawings; it has a chamber forming an annular water tank, the internal wall of which is adapted to support an annular air guide casing on its upper edge.  This casing supports a fan/motor unit the fan being an "axial flow fan".  The casing has a cylindrical wall which concentrically surrounds the fan blades and at the top, upstream of the cylindrical casing wall, the casing curves smoothly, "the upper curved portions ... (being) ... of arcuate form in radial cross‑section and define a flared inlet portion of the air guide casing".
         The final two paragraphs of the description read as follows:

"It will be seen from the drawings that the pads define a substantial part of a peripheral wall of a housing, the base of whch is formed by the base 2 and the axis of which extends substantially vertically, the axis of the fan and of the guide casing 8 being located on the axis of the housing.  The air flow path from the fan to the pads is substantially unobstructed.

In use, the axial flow fan will draw in the air from the atmosphere into the housing through the moistened pads, and discharge this air axially via the guide casing 8 into the building.  The illustrated configuration of the guide casing 8 in conjunction with the axial flow fan assists in diminish‑

ing the air and fan noise by providing substantially laminar flow over the casing, and also the rods 14 which support the motor are positioned well upstream of the fan so that the turbulence caused by the rods does not influence the fan and cause fan noise, for this turbulence would be dissipated to an extent before reaching the fan."

Clearly, the specification is directed to an evaporative cooler of generally known construction, but with some modifications intended to reduce operating noise levels.  The flared guide casing in conjunction with an axial flow fan, and the arrangement whereby the air flow path from the fan to the pads is substantially unobstructed constitute the modifications.  These arrangements are reflected in the claim which reads:

"An evaporative cooler comprising air‑permeable pads arranged around the periphery of a housing of the cooler, means for supplying water to the pads, an axial flow fan mounted in the interior of the housing with its axis of rotation substantially vertical for drawing air into the interior of the housing through the pads for discharging said air, and an annular air guide casing surrounding the fan, said casing comprising a substantially cylindrical portion arranged concentrically with the fan, and a flared inlet portion upstream of cylindrical portion in the direction of air flow, said inlet portion being arcuately curved in radial section and curving radially outwardly with respect to the cylindrical portion and merging smoothly with the cylindrical portion, said fan being operable to discharge said air via the cylindrical portion of the casing, whereby, in use, the air can be discharged from the cylindrical portion into the duct, the air flow path from the pads to the fan being substantially unobstructed."

The Evidence
         The evidence lodged with the sub‑section 68B.(3) notice consists of a declaration by C.L. Vinall, a copy of USP 3,867,486 and extracts of the following text books exhibited to the declaration:

CLV1Marks' Standard Handbook for Mechanical Engineers (8th Ed.) pp.14‑49, 14‑50, 3‑57;

CLV2Mechanics of Fluids (4th Ed.) ‑ B.S. Massey pp.84‑89;

CLV3Fluid Mechanics for Engineers (1957) ‑ P.S. Barna p.333 ‑ Mr. Barna was Senior Lecturer in Mechanical Engineering at the University of N.S.W., Sydney, at the time of writing.

Mr. Vinall describes himself as an Engineer giving as his address that of R.K. Maddern & Associates.  He states that during his training as an Engineer at S.A.I.T. he purchased copies of the books from which CLV1 and CLV2 are extracts, in 1979, and that he obtained a copy of the Barna text (see CLV3) from the technical library of Seeley where it has been available prior to April 1980.  (The priority date of the petty patent is 24 April, 1980).  He deposes that he believes the only difference in the invention of Lech Pawlowski from the USP is that the latter does not show a curved or bell‑mouthed entry into the fan surround; however, if the USP is read in the context of the common knowledge in the trade as displayed by CLV1 to CLV3, then the use of such entry "was obvious, and that Australian Petty Patent No. 540573 was not novel in the light of what was known or used in Australia prior to April 1980".
At the hearing Mr. Maddern sought to introduce a further declaration made by Mr. Colliver, engineer in the employ of Seeley. Basically, this declaration serves the purpose of attempting to introduce as exhibits a number of pages of Woods Practical Guide to Fan Engineering. In this respect, Mr. Maddern referred me to a number of Court judgements viz., Tate v. Haskins 53 CLR 594, Kaiser Aluminum & Chemical Corporation v. Reynolds Metal Co. 120 CLR 136 and Vangedal‑Neilsen et al v. Commissioner of Patents and Gelphen Nominees 33 ALR 144. On the basis of these judgements Mr. Maddern strongly made the point that I ought to admit the Colliver declaration and exhibits in the public interest.
         The evidence before me and the submissions made on behalf of the patentee are directed to showing the commercial success of the style of evaporative cooler claimed and also to pointing out the distinctions between the invention claimed and USP 3,867,486.  Additionally, he submitted that there is no evidence on file of the state of common knowledge in the relevant art in Australia at the priority date of the petty patent ‑ Mr. Vinall is not apparently, such an expert, and consequently his statements about CLV1 to CLV3 being common knowledge and the effect thereof on the novelty of the claim must be given little weight.
New Evidence
         I have referred above to the Colliver declaration which Mr. Maddern sought to introduce at the hearing.  I have since ascertained that the Woods text has been on the library shelves of the Patent Office since January 1953. The portions of Woods which are exhibited to the Colliver declaration merely reinforce the assertions and exhibits constituting the Vinall declaration.  Pursuant to this and as Woods is at least public knowledge, I admit the Colliver declaration, with the reservation that I do not necessarily accept Mr. Colliver's statement that Woods "... is in general use in air conditioning industry" as indicative of the common knowledge in the art in Australia at the relevant date.
Novelty
         In the terms of the claim of the petty patent, USP 3,867,486 discloses:

(i)an evaporative cooler comprising air‑permeable pads arranged around the periphery of a housing of the cooler;

(ii)means for supplying water to the pads;

(iii)a fan mounted in the interior of the housing with its axis of rotation substantially vertical for drawing air into the interior of the housing through the pads, and for discharging said air;

(iv)an annular air guide casing surrounding the fan, said casing comprising a substantially cylindrical portion arranged concentrically with the fan;

(v)said fan being operable to discharge said air via the cylindrical portion of said casing, whereby, in use, the air can be discharged from the cylindrical portion into a duct*;

(vi)the air flow path from the pads to the fan being substantially unobstructed.

*While the disclosure does not specifically refer to discharge into a duct, it does illustrate discharge from the fan air guide casing into a plenum tube 77.  In any case, there is no  constructional feature defined as a limitation in the claim relevant to this point.

Mr. Hind submitted that the USP disclosure lacked two of the essential features of the claim; firstly, the fan was a propeller type fan and not an axial flow type, and secondly, the inlet portion of the fan casing was not flared.  He said that these features were essential in that they contributed to the noise reduction of the cooler, which was the purpose of the invention.  Finally, he pointed out that the texts which Mr. Maddern sought to use by adding their disclosures to that of the USP were not proven to be common knowledge and therefore could not be used in this way.
         Mr. Maddern's submissions, based on his evidence, were to the effect that the term "axial fan" as used in the petty patent did in fact, include the type of fan shown in the USP and the matter of flaring fan casing inlets was common knowledge in the art at the relevant date.
         I will deal first with the matter of the fan type.  This was a matter of some dispute between Mr. Hind and Mr. Maddern.  Mr. Hind described axial flow fans as having impellers with curved blades of generally constant width and aerofoil section mounted in a tube guide casing with axis of rotation more or less coincident with the axis of the casing.  Mr. Maddern took the view that an axial flow fan was merely one that directed air flow parallel to the impeller rotation axis.  Upon a consideration of various texts including those in evidence, I find I cannot agree with either definition.  There appears to be a number of fan types which produce "axial" flow viz.:

(i)

This consists of a propeller rotating within a mounting ring or plate.  They are normally used in low pressure applications, and produce axial flow with a circular pattern.  There may be some radial flow as well, the amount depending on blade design.

(ii)

This type of fan consists of an axial‑flow "wheel" within a cylinder.  Having the impeller installed in a tube improves the pressure characteristics compared to a free propeller as in (i).  The air flow is axial, but again, is in a circular pattern.

(iii)

A vane axial fan consists of an axial flow "wheel" within a cylinder, combined with a set of air guide vanes located before and/or after the "wheel".  Compared to type (ii), this type of fan has improved pressure characteristics and efficiency, and the discharge air pattern is significantly free of rotation.

(iv)

A tubular centrifugal fan consists of a centrifugal rotor or "wheel" within a cylinder, combined with a set of guide vanes usually downstream of the rotor.  (A normal centrifugal fan consists of a fan rotor or "wheel" within a scroll type housing).

Each of the types described above uses an impeller or rotor with its axis of rotation substantially coinciding with the longitudinal axis of the cylinder, or in the case of type (i), the axis passing at right angles through the plane of the mounting ring at the ring centre.  Types (i) to (iii) produce flow axially of the impeller.  Type (iv) produces flow radially of the impeller which is then converted to flow axially of the cylinder in which the impeller is mounted.
         I note that of the four types of fan categorized above, only two are designated as "axial" fans.  However, aside from the fact that the rotors of these two are constructed to produce movement of air parallel to their rotational axes, i.e. axial flow, there are no other limitations on the construction thereof.  Thus they are not required to be of aerofoil section or of constant blade width as suggested by Mr. Hind.  I have checked this conclusion* by inspecting a number of fan manufacturers' catalogues which were available in Australia before the priority date of the claim of the petty patent.  While many of the illustrated axial flow fans do indeed have aerofoil
section impeller blades, many do not ‑ in fact quite clearly, the only difference between some propeller fans and some axial flow fans was the manner

*In coming to this conclusion, one of the main references I used was the ASHRAE (American Society of Heating, Refrigeration and Air‑Conditioning Engineers) Guide And Data Book ‑ Equipment/Catalogue ‑ 1969 Issue, which has been available in the Patent Office Library since 1973.

of mounting, the one type being in ring mounts and the other being in tubular mounts.  Consequently I conclude that the fan type disclosed in USP 3,867,486 may be fairly described as an axial flow fan.
         I come now to a consideration of the second distinction alleged to exist between the disclosure of the USP and the invention as claimed, i.e. the lack of a flared inlet upstream of the fan impeller.  This particular feature is not discernible in the drawings of the USP nor is it disclosed in the general description thereof : this much has been conceded by Seeley through Mr. Vinall's declaration.  The question arises now whether this difference is sufficient to impart novelty to the claim.

Mr. Maddern argued that flared inlets in the context of this invention were clearly common knowledge; he supported his arguments by reference to the text book extracts in evidence.  Mr. Hind countered with the view that none of the matter in evidence had been attested to by persons skilled in the relevant art, and consequently that matter could not be classed as common knowledge.
         It is true that the ultimate determination of what constitutes common knowledge must be done in the light of expert evidence, however it is also true that where a book has been used as a text book, its contents are indicative of what constitutes common knowledge.  Additionally, on Tribunals such as this, the Hearing Officer is entitled and expected to bring his own technical expertise to bear.  In this case I am personally aware that the flaring of inlets to fluid ducts to reduce sudden contraction of the flow and to reduce or avoid the resulting turbulence has been common knowledge in this country for many decades, at least.  The same comments apply to the inlets of ducting in which fans are mounted.  It is also well recognised that the reduction or avoidance of sources of turbulence reduces noise levels.  In my view, these matters are so generally known that it would be absurd in the present circumstances to require expert evidence as confirmation.  I note also by way of confirmation that Marks' Handbook (CLV1) refers at pages 14‑49 to an "inlet bell" (illustrated in Figure 1) as one of the elements of an axial flow fan.  Similarly, the Barna extract at page 333 (CLV3) refers to and illustrates (Figure 12.1) that, upstream from the impeller of an axial flow fan, "the duct is usually provided with a bell‑mouthed intake to avoid sudden contraction of the stream, whilst immediately downstream from the impeller straightener vanes are employed to remove the whirling motion of the fluid".
         Consequently, the only constructional feature included in the claim of the petty patent not disclosed in the USP is a matter of common knowledge.  I would emphasise here that that feature is incorporated into the combination claimed in such a way as to be performing its normal and expected function.
         In my view, then, the claim lacks novelty.
Conclusion
         I have determined that the claim of the petty patent lacks novelty.  I therefore refuse to extend the term of the grant at this stage.  It does seem to me however that there is subject matter described which would be entitled to an extension of the grant, if properly claimed, so I will allow the patentee 60 days from the date of this decision to apply for amendment accordingly.
         I award costs against the patentee.

(J.L. ROVETA)