1978/55 'W.-M. Houston, Govt. Print. Melb. Vy: PTE ae me) : REASONS FOR JUDGMENT i L Judgment delivered at..SYDNEY on. FRIDAY,..22nd.-DECEMBER..1961.... HIGGINS & OTHERS Ve SUNBEAM CORPORATION LIMITED ORDER Judgment for defendant in the action and counterclaim: Letters Patent No. 112,279 revoked: costs of action and counterclaim to be paid by the plaintiff, except costs occasioned by the issues as to prior user in the vicinity of Hardy's building and the saleyards at Wagga Wagga, such costs to be paid by the defendant. JUDGMENT HIGGINS AND OTHERS Ve SUNBEAM CORPORATION LIMITED McTIZRNAN J. HIGGINS AND OTHERS Ve SUNBEAM CORPORATION LIMITED In my opinion, the defendant has made out a case for the revocation of the Letters Patent No. 112,279 on grounds stated in s. 100(1)(e) & (g) of the Patents Act 1952-1960, The case which the defendant made at the trial was directed mostly to those grounds. It seems to me to be clear that the alleged invention was fully anticipated by Exhibit 39, which is a complete specification for "improved apparatus for spraying sheep; dated 29th January 1914, The priority date in the instant case is 6th January 1940. Further, I am satisfied by the evidence that the alleged invention was obvious and did not involve an inventive step, having regard to what was known or used in Australia before 6th January 1940. As to this, I accept the evidence of Dr. Anderson and Mr. Davey. Further, it seems to me impossible for the plaintiff to sustain these Letters Patent in view of the evidence of Dr. Anderson proving prior public user of certain rotary sheep spray on a sheep station at Yallaroi in northern New South Wales in 1916. This apparatus contained all the material ingredients of the present invention. I was invited by counsel for the plaintiff to reject Dr. Anderson's evidence and to accept in lieu of it the evidence of a Mr, Anderson; however, with due respect to the latter, I regard the evidence of the former as the more reliable . Another instance of prior public user is proved to have occurred in the early 1930's at Noondoo station, Queensland. Proof of this depends on the evidence of Mr. Young, which I also think is trustworthy and reliable. Much time was taken up during the trial in 2. the investigation of allegations of prior user at Wagga Wagga on or about the premises known as Hardy's building and at the saleyards. There was a strong conflict of evidence on these issues. I accept substantially the evidence of W. H. Higgins, B. L. Higgins, G. BE. L. Snowden and S. J, Miles and I do not attach the same credence to the evidence of witnesses who are in conflict with them. Accordingly, I am not satisfied that there was at Hardy's premises or at the saleyards any user which would invalidate the Letters Patent if they could otherwise be sustained. It follows that the action should be dismissed and the counterclaim allowed. I order that the plaintiffs pay the costs of the action and of the counterclaim, except to the extent to which the costs were increased by the trial of the issues as to prior user at Wagga Wagga, and that such costs should be paid by the defendant.