Stamp v W J Powell Pty Ltd - [1918] HCA 14

W. J. POWELL PROPRIETARY LIMITED

RESPONDENTS. OPPONENTS, Patent-Application-Opposition-Want of novelty-Prior publication-Onus of

proof-Patents Act 1903-1909 (No. 21 of 1903-No. 17 of 1909), sec. 56.

An application for a patent for an "improved mode of and apparatus for MELBOURNE, drying and deodorizing nightsoil, slaughter-house refuse and other analogous March 8, 20. materials was opposed on the grounds of want of novelty and prior publica- tion, and the Commissioner of Patents upheld the opposition. On appeal to Gavan Duffy the High Court,

24 CLR 340

Held, that the opponent had not discharged the onus of showing either that there was not a novel invention or that the invention had been described in a prior publication, and therefore that a patent should be granted.

McGlashan v. Rabett, 9 C.L.R., 223, applied.

APPEAL from the Commissioner of Patents.

John Wynne Stamp applied for a patent for an 'improved mode of and apparatus for drying and deodorizing nightsoil, slaughter house refuse and other analogous materials." The complete specification contained the following statement of the invention and the mode in which it was to be performed This invention relates to means whereby wet substances such as offal and nightsoil may be dried and deodorized to render the same innocuous and fit

for use as manures. According to the invention the material is treated in a continuous manner, in vacuo, in a revolving cylinder that is heated externally in a container by applied dry heat from a suitable source. Quantities of the material are admitted from time to time to the cylinder as it continues to revolve, and means are provided for drawing off and condensing the vapour as it accumulates in the drier, and for removing the desiccated material therefrom."

A diagram was then set out with a description thereof; and then followed the claims, which were as follows :-

"1. In the desiccation of nightsoil and other like materials, treating the same in vacuo in an air-tight cylinder revolving within a fixed heated container, the cylinder having means whereby, as it continues to revolve, the wet mixture is fed thereto from an outside chute, and the vapours are withdrawn therefrom.

"2. In apparatus for the desiccation of nightsoil and the like, an air-tight cylinder horizontally mounted and revolving within a fixed heated container, trunnions on the cylinder, a charging pipe coming into the cylinder through one trunnion and a vapour exhaust- pipe passing out through the other trunnion, means for revolving the cylinder, and means for maintaining a vacuum therein, as specified.

" "3. In apparatus for the desiccation of nightsoil and the like in combination, an air-tight cylinder horizontally mounted and revolving within a fixed heated container, trunnions on the cylinder,

24 CLR 341

a charging pipe coming into the cylinder through one trunnion H. C. and a vapour exhaust-pipe passing out through the other trunnion, a vacuum pump, a condenser between the pump and the vapour exhaust connected into each, and means for charging the cylinder when stationary and…

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

Case: [1918] HCA 14
Decision Date: 20 March 1918

CaseChat Overview and Summary

John Wynne Stamp, the applicant for a patent, appealed to the High Court of Australia against a decision of the Commissioner of Patents. The Commissioner had upheld an opposition lodged by W. J. Powell Proprietary Ltd. to Stamp's application for a patent for an "improved mode of and apparatus for drying and deodorizing nightsoil, slaughter-house refuse and other analogous materials." The opposition was based on the grounds of want of novelty and prior publication.

The legal issues before the High Court were whether the applicant's invention lacked novelty and whether it had been described in a prior publication. The Commissioner had found that while the specification described a novel invention in terms of construction, arrangement, and combination, the claims as drafted were not sufficiently confined to this novelty, leading him to uphold the opposition.

The High Court, applying the principle established in *McGlashan v. Rabett*, held that the onus lay on the opponent to demonstrate that the patent, if granted, would be clearly invalid on the grounds alleged. The Court found that the opponent had failed to discharge this onus. It was not affirmatively proven that any combination substantially identical to the claimed invention had been used before the application date or described in a prior publication within the Commonwealth. Consequently, the Court concluded that the grounds of want of novelty and prior publication had not been established.

The appeal was allowed, the decision of the Commissioner was set aside, and a patent was ordered to be granted to the applicant.

Orders