Richard Ian Mills v. Ennor Engineering Pty Ltd

[1991] APO 19

PATENTS ACT 1990

DECISION OF A DELEGATE OF THE COMMISSIONER OF PATENTS

Re:Patent Application No 581844 by RICHARD IAN MILLS and Opposition thereto by ENNOR ENGINEERING PTY LTD under S.59 of the 1952 Act

Background
          RICHARD IAN MILLS lodged application 581844 on 4 May 1984 with priority claimed from a provisional specification lodged on 5 May 1983.  The Office advertised acceptance of the application on 8 November 1984.
          Ennor Engineering Pty Ltd lodged a notice of opposition on 23 May 1989 under s.59 of the 1952 Act.  The matter was set down for hearing on 19 February 1991.  Both parties informed the Office that they would not be attending the hearing, and instead would rely upon written submissions.
The Specification
          The specification indicates that the invention relates to the manufacture of building elements, and more particularly to building elements which are formed by the application of pressure to a base material such as adobe or mud bricks.
          The specification acknowledges that mud bricks are currently manufactured using two basic techniques.  In the first method, soil is placed in a mould together with a suitable binding agent and dried in the sun.  As such it is not possible to make large quantities of mud bricks without having a large number of moulds in which to form the bricks.  A second technique utilises a hand operated press which compresses the soil mix within a mould. 

However owing to the manual nature of this process the manufacture
of the bricks is also extremely time consuming.
          The object of the invention is to provide a more mechanised means for making building elements thereby reducing the time of manufacture.
          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. Apparatus for manufacturing building elements from a base material, the apparatus comprising a mould having a mould cavity therein and an opening in an upper wall of said mould which communicates with said mould cavity, delivery means for delivering a charge of the base material to said mould cavity through said opening, said delivery means comprising a delivery container for receiving a charge of base material said delivery means being movable between a filling station wherein the base material is fed to said container and a delivery station at which the charge of material within said container is deposited into said mould cavity through said opening, said container having an open top side and an open bottom side, said container being disposed above a platform when at said filling station and when at said delivery station it overlies said opening in said mould cavity, an hydraulic ram member which is movable between a retracted position in which position it is spaced from and above said opening in said mould cavity so that said delivery means can deliver the charge or a subsequent charge of base material to said mould cavity and an operating position where it can cause compression of the base material in the mould cavity, and discharge means for discharging the base material from said mould."

   Claims 2 to 7 are each directly or indirectly appended to claim 1, and claim 8 is an omnibus claim.
   Grounds of Opposition and the Evidence
             The notice of opposition specified all the available grounds under sub-section 59(1).  However the written submissions lodged by Mr John Christiansen of Smith Shelston Beadle, attorneys for the opponent, only concern the opposition grounds of prior
   publication, lack of novelty and obviousness in respect of claims 1, 2 and 8.
             The opponent's evidence comprises declarations and exhibits from:

.Mr John Christiansen, patent attorney, who draws attention to a lecture entitled "Mainly About Pressed Earth Bricks" which was delivered at the University of Melbourne, the text of which has been marked as exhibit JC2.  He also refers to Australian patent specification 480623 (71044/74) which was published before the priority date of the claimed invention, and relies on the disclosure of these documents to support the opposition grounds.

.Mr Anthony Pease who has been "involved with machines for manufacturing mud bricks since 1971", including the development of the machine which is the subject of specification 480623.  Mr Pease states that the machine was shown on a television program in 1974, and that he presented the lecture marked as exhibit JC2.

Mr A.R. Smeeton, patent attorney, of Davies & Collison lodged written submissions on behalf of the applicant.
Decision
(i)  Prior Publication/Novelty
          The declarations which form part of the opponent's evidence both refer to exhibit JC2.  Paragraph 7 of Mr Christiansen's declaration alleges that the exhibit relates to prior art in existence before the priority date of the claimed invention.  Exhibit JC2 refers to a machine for making mud bricks but provides no details of the components of the machine or how it operates.  Furthermore paragraph 2 of Mr Pease's declaration states that he delivered the lecture in February 1984, i.e. subsequent to the priority date of the claimed invention.
          Thus given the evidence before me I must agree with Mr Smeeton's submission that exhibit JC2 does not support the opposition grounds of prior publication and lack of novelty.
          Both declarations also make reference to specification 480623.  This specification was published in Australia on 13 March 1975.  It discloses a machine for making compressed earth bricks (viz. adobe or mud bricks) similar to that of the claimed invention.
          The machine comprises a brick forming or mould cavity and an opening in an upper mould wall which communicates with the cavity.  A feed ram is used to deliver a charge of base material from which the brick is formed to the mould cavity through the opening.  A compression ram is movable between a retracted position in which it is spaced from and above the opening so that the feed ram can deliver a charge of base material to the cavity, and an operating position where it can cause compression of the base material in the cavity.  A gate ram is used to discharge the compressed base material from the cavity.
          The machine as claimed in claim 1 differs from this known machine in that the base material delivery means comprises a delivery container which is open at the top and bottom.  The delivery means is movable between a filling station where base material is fed to the container which in turn is disposed over a platform, and a delivery station where the container overlies the opening in  the mould and deposits the base material into the mould cavity through the opening.
          Mr Christiansen's submissions indicate that the claimed delivery means is a mere technical equivalent of the feed ram disclosed in specification 480623.  However on the evidence before me I am not satisfied that this variation can be considered as either a "mechanical equivalent" or a mere "workshop improvement".  Although the feed ram of this citation is said to comprise a hollow rectangular box, it is clear that the ram does not itself act as a container into which base material is fed.  The ram is simply used to push a volume of deposited base material over the edge of the mould opening into the mould cavity.  Unlike the claimed invention, the feed ram does not overlie the opening when in its delivery position, but remains spaced rearwardly of the edge of the opening to leave a bleed chamber into which excess base material is bled from under the compression ram.
          Finally, paragraph 4 of Mr Pease's declaration alleges that the machine which is the subject of specification 480623 appeared on a television program before the priority date of the claimed invention.  While it is not clear from the evidence precisely how much of the machine was revealed on the program, I have already found in the preceding paragraph that the machine in even its detailed form as disclosed in specification 480623 does not anticipate the claimed invention.
          To summarise, I do not consider that the invention as claimed in claim 1 is prior published or lacks novelty in the light of the evidence before me.  These findings necessarily extend to claim 2 in view of its appendancy to claim 1, and claim 8 which as previously stated is an omnibus claim.
(ii)  Obviousness
          Whilst the allegation that the claimed invention is obvious is listed as a ground of opposition, the evidence and submissions lodged are of little assistance on this ground.  Mr Christiansen's submissions indicate that the claimed invention is obvious in the light of specification 480623 taken by itself or in combination with Mr Pease's declaration and exhibit JC2.  However a consideration of the question of obviousness must be made against the background of the common general knowledge in the art in Australia at the priority date.  As there is no evidence on file establishing what was the relevant common general knowledge at the priority date of the claimed invention, I am unable to consider this ground further.
Conclusion
          I have decided that the opponent has not succeeded on the grounds relied upon.  Accordingly I dismiss the opposition and, subject to any appeal being lodged, I shall direct that the application proceed to sealing.
          I award costs against the opponent.

(O.L. HAGGAR)
  Supervising Examiner of Patents

Patent Attorneys for the Applicant: Davies & Collison, Melbourne
Patent Attorneys for the Opponent : Smith Shelston Beadle, Melbourne