Nautical Services Pty Ltd v Hitech Distillation (Australia) Pty Ltd - [1989] APO 32

In the Matter of the Patents Act 1952
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In the Matter of Patent Application No. 549841 in the Name of NAUTICAL SERVICES PTY. LTD.
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In the Matter of an Opposition thereto under Section 59 by HITECH DISTILLATION (AUSTRALIA) PTY. LTD.

DECISION OF A DELEGATE OF THE COMMISSIONER OF PATENTS
Background
Patent application 549841 entitled "De‑Salinator for Brackish ‑ or Salt ‑ Water" originated from an International application No. PCT/AU83/00048 lodged on 27 April, 1983 which designated Australia, the present application arising following entry to the national phase in Australia. The application derives priority from an earlier application lodged in Australia on 27 April, 1982. Acceptance of the application and complete specification was notified in the Official Journal of 13 February, 1986, and Notice of Opposition was lodged on 9 May, 1986 by HITECH DISTILLATION (AUSTRALIA) PTY. LTD.
The evidence stages in the opposition were completed on 29 November, 1988. A hearing in the matter was held in Canberra on 19 April, 1989. Mr J.G. Adams, patent attorney of Grant Adams & Company appeared for the applicant NAUTICAL SERVICES PTY. LTD., and Dr I. Ernst, patent attorney of Shelston Waters appeared for the opponent HITECH. The inventor Mr I. Lloyd was also present.

The Notice of Opposition lists all available grounds of opposition specified in sub‑section 59(1). However at the hearing the opponent relied only on the grounds of lack of novelty and obviousness.
Specification
The invention relates to a de‑salinator for brackish ‑ or salt ‑ water and is stated to be particularly useful for marine applications. The specification briefly refers to a number of problems arising in prior art marine de‑salinators as follows:
"Firstly, they use electric pressure pumps to operate the eductors. These pumps require generators and/or alternators driven by the main and/or auxiliary engines of the watercraft for their power. As the engines must operate at e.g. 3000 rpm to provide sufficient power, fuel is wasted when the engines are run at those speeds solely to generate electricity for the pumps. Secondly, the pumps drive the eductors under pressure and bypass valves must be provided in an attempt to maintain the pressures in the eductors at a substantially constant value, therefore maintaining the condensation production rate at a constant. Thirdly, the "still"‑type de‑salinators require regular de‑scaling and have a low output of fresh water while the osmosis‑ type require careful operation on start‑up to prevent membrane damage."

The stated objects of the present invention are directed to avoiding or reducing these problems.
The invention is described in broad terms by way of a consistory statement which corresponds to accepted claim 1. Claim 1 reads as follows:

"1.A de‑salinator for brackish ‑ or salt ‑ water including:

a de‑salination chamber;

a heat exchanger in a lower portion of the chamber to boil the brackish ‑ or salt ‑ water in the chamber;

at least one condensor coil in an upper portion of the chamber, spaced from the heat exchanger by at least…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Nautical Services Pty Ltd v Hitech Distillation (Australia) Pty Ltd [1989] APO 32
Case: [1989] APO 32
Decision Date: 25 October 1989

CaseChat Overview and Summary

The case of Nautical Services Pty Ltd v Hitech Distillation (Australia) Pty Ltd involved a patent opposition concerning a desalination apparatus. The applicant, Nautical Services Pty Ltd, had filed a patent application for a desalination system, which was opposed by Hitech Distillation (Australia) Pty Ltd on the grounds of lack of novelty and obviousness. The opposition was heard by a delegate of the Commissioner of Patents.

The primary legal issues that the court needed to decide were whether the invention claimed by the applicant was novel and non-obvious in light of the prior art and common general knowledge available in Australia at the priority date of April 27, 1982. The court examined the evidence provided by both parties, including declarations and exhibits related to various desalination systems known in the art before the priority date.

The court found that the Maxim-type desalinators were part of the common general knowledge in the art prior to the priority date. However, the court was uncertain whether the Foley desalinator and related patent specifications were also part of the common general knowledge. Regarding novelty, the court concluded that the claimed invention was novel over the Maxim-type desalinators as the use of a suction pump downstream of the eductor provided substantial advantages over the prior art. The court also found that the claimed invention was not obvious to a person skilled in the art, as there was no clear evidence that the combination of features in the claimed invention would have been obvious at the priority date.

Based on these findings, the court dismissed the opposition and directed that the patent application proceed to sealing. The opponent was also ordered to pay costs.

Orders