WR YTIO (¥ ___ YD IN THE HIGH COURT OF. AUSTRALIA. Hume Pipe Company (Australia) i Limited v. Monier Industries Limited (Pe. application No. 102892) "REASONS FOR JUDGMENT. Judgment delivered at__Melbourne | om BX Grom, Gort Pe Mee on__8th November 190 __ — sa re Application No. 102892 by Monier Industries Ltd. HUME PIPE COMPANY (AUSTRALIA) LTD. ve MONIER INDUSTRIES LIMITED Order : Appeal allowed with costs. Decision of Deputy Commissioner of Patents set aside and in lieu thereof opposition upheld with costs to the opponent and application for letters patent dismissed. HUME PIPE COMPANY (AUSTRALIA) LIMITED AND MONIER INDUSTRIES LIMITED. E MPANY (AUS' ITED v. MONIER. NDUSTRIES LIMITED. JDGMENT . RICH £0.05; In the matter of the application No 102,892 for Letters Patent the crux of the decision of the Deputy Commissioner is that he was not sufficiently satisfied tnat the feature of "multiple springs disposed" in opposition to one another so as to place the vibrating table ina kind of resilient balance did not give nove.Ity to the combination, Whatever may be the truth in respect of this supposed feature of the invention I am clearly of opinion that it is not distinctly made the subject of any claim nor properly embodied in any claim and that in the body of the specification only the most cloudy account of it is to be found, In these circumstances I am unable to uphold the decision of the Deputy Commissioner. In my opinion the appeal should be allowed,the decision of the Deputy Commissioner discharged and the application for a patent refused. ° The respondent co mpany' should pay the costs of the appeal and the appli- eation Berore heb leputy Commissioner, STARKE J. The respondent, in Veceaber 1956, made appiication No. 102,892 for the grant of Letters Patent for an improved machine for concussionaiiy vibrating concrete articles for the consolid- ating of the concrete during the setting thereof. the applicatim was opposed by the ap eant on the ground that the invention was not novel, The Veputy Commissioner of Patents determined that Letters Patent should issue, whereupon the appeliant appea- led to this Court against his determination. The invention, according to the Complete Specification, related to machines for the concussional vibration of moulded artigles made from concrete such as concrete pipes whilst the articles were in the mould and prior to the final setting of the concrete. The invention is suificiently described dn tne rirst claim as foliows:- "A machine for concussionally vibrating concrete articles constituted of a table oi two main side frames and cross members, said fable being adapted to float on a sole plate and guided to move longitudinaliy, a cam feliower on one of said cross members juxtaposed a cam on a shaft on a stationary frame, an anchor frame between said side frames, springs connecting said anchor frame with said table and means to vary the pressure on one of said springs for the purposes set forth", In one arrangement of the machine, the anchor frame, disposed between the side frames, has springs at each end there- of, In this arrangement of the machine, the rotation of the cam deals concussional blows to the cam follower and suca blows are transmitted to the reciprocatory table and cause it to be Knocked lohgitudinally against the resistance which tends to maintain tne table thrust against the cam whilst the spring at tne other end opposes such thrust. In another arrangemant, the spring-holding arrangemat is modified so that the spring attached to a rod at one end is madé fast in the anchor frame ee and the spring at the other end is on the opposite side of the cross member whereby the springs reinforce each other. In April of 1936 a machine for concussionally vibrating concrete articles for the consolidation of the concrete during by the appellant the setting tnereof was constructed/and put in operation in Brisoane, where it was inspected by the Managing Director of the respondent, In December of 1936 three similar machines were constructed by the appellant on the order of the respondent and delivered to it. The appeiiant filed evidence in the Commissioner's Office to the effect that these machines were constructed in accordance with the complete specification and drawings of patent appiication No, 101,202. The specificatim and drawings were not publisned in the Commonwealth before the date of the respondent's application and could not "therefore be relied upon as a paper anticipation of the invention claimed by toe respondent. So the appellant's case is based upon the prior construction and use of the machines already mentioned. The Deputy Commissioner said the evidence was clear that a machine, apparently for moulding concrete pipes was made and delivered to the Managing "irector of the respondent but that it did not decisively show to his satisfaction that the machine was substantially the same as that described and illustrated in the Commonwealth Specification No, 101,202 and as a consequence that he was not prepared to conclude that a machine was substantially the same as that disclosed in the specificat- | ion, But there is no doubt, on the evidence, that the machines mentioned comprised a solid foundation on which was supported a carriage or table, capable of being jolted back and forward longitudinally. the jolting or concussional motion was imparted by means of cams operable against the carriage or table, springs were provided at one end of the machine for returning the carr- iage, stop blocks for jolting the carriage in its return move- ment, and means for varying the pressure on the springs. The -3- machines actualiy Kee had, I gatner, two cams, but a sin gle cam might obviously be me, It is thus apparent hat the respondent's machine for the concussional vibration of moulded articles was derived substantially from the machines supplied to it by the appeliant. Indeed, the Managing Yirector of the respondent deposes that the machines supplied to it failed, that he had to devise means whereby its contracts could be completed, and that as a result of such devising the machine tae subject of its application for a patent (No, 102,892) was produced at thevespondent's works. The machines of the appeliant and the respondent are so alike that only two features require notive. The anchor frame, which is rigidly fixed to the sole plate or stationary frame and the springs so disposed between it and the table adie urge thettble thrust against the cam whilst in the appéllant's machine a sprirg or springs are disposed on the stationary frame for the same purpose. The difference is but a mechanical variation of the arrangement of the machine and does not Qee48y new combination. The §pring holding arrangement or what ies. been termed the multiple spring arrangement, One of the¢dements of the respon- dent's first claim is springs connecting the said anchor frame with the table, According to the specification, the springs may be so disposed as to operate in opposition to one another or to reinforce each other. In the appellant@s machine, a single cau or two or more cams may be used which would involve corres- ponding springs. The springs in machines constructed by the appeiiant and supplied to the respondent operate in precisely the game manner and for the same purpose as the reinforcing springs in the respondent's machine described in the respondent's complete specification and covered py claim 1. Even if the springs were limited to mult#ple springs operating in opyosition to each other, that does not involve any new combination, j Equilibrium of tension,was the object, so it was said at the | i a) -4- Bar, of the multiple springs, but even so a more skilful and efficient mode of arranging the springs, once the idea is suggested, is but a mechanical variation of the arrangement of the machine, and not so far outside and removed from the arran,ement of the appellant's machine that it constitutes a new combination or invention. The second and third claims in the respondent's specifi- cation are tied to the first claim and are equally wanting in novelty. +he fourth ¢laim is for an arrangement that is sub- stantially the same as that of the appellant's machine. the fifth claim, referred to as an omnibus claim, adds nothing to and stands in no better position than the first claim, The appeal should be aliowed, the decision of the Deputy Commissioner reversed, and the application No. 102,892 for Letters Patent refused. rei Appl icatévh No'.' 102892 by! Wonier Industries Ltt', HUME "'PTRE COMPANY | (AUSTRALIA) LID. Ve MONIER_INDUST: LIMITED Je BB Application No. 102892 by Monier Industries Ltd. HUME PIPE COMPANY (AUSTRALIA) LID. ve MONIER UNDUSTRIES LTD'! Notwithstanding the view to the contrary of the Deputy Commissioner of Patents, I think that it must be taken as established that, vefore the application now in question was filed, machines constructed supstantially in accordance witn tue specification in application No. 101202 and the drawings annexed thereto were in use and available to vne public. Can The question is whether 7 dount, exists that those machines amount to a prior disclosure of the applicant's a olnett alleged invention, of sutticient strength to justity a dismissal of the opposition made on the ground of want of novelty. In my opinion no such doubt exists. The two machines appear to me to exhibit no distinction possessing any real substance, with the possible exception of the introduction into the applivant's form of construction of a second spring operating against the first. This feature was relied upon by counsel in support of the decision of the Deputy Commissioner of Patents. But an examination of the téxt of the specification and in particular of the claims and of the drawing in figure four.shows that the second or balancing spring does not form a necessary feature of the invention set up. Further I do not think that it does more than give reetitence or balance to the moving frame or table carrying the revolving drums or wheels on which the mould rotates. It does not change the mechanical operation of the pre-existing device, which depends on the revolutions of a cam wheel, a cam follower and a spring to bring back the table or frame and keep the cam follower in contact with the cam wheel. The nature of what is disclosed in and claimed by the specification is not such as to call upon us to. give the applicant an opportunity of applying for an amendment. In my opinion the appeal should 'be allowed and the decision of the Deputy Commissioner of Patents 4 Sot should be set aside and in lieu thereof the opposition should be upheld and the application for letters patent refused.