John McIlwraith Industries Ltd v Phillips [1958] HCA 43

High Court of Australia Dixon C.J. McTiernan and Fullagar JJ. John McIlwraith Industries Ltd v Phillips [1958] HCA 43

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Oct. 14 Dixon C.J.

This appeal is brought by the defendant in an action for infringement of a patent. The original jurisdiction of the Court to entertain the action is conferred by s. 113 of the Patents Act 1952-1955 read with s. 5 (2). The patent goes back to 20th August 1947. The defence was invalidity and the defendant counter-claimed for revocation. The objection to validity was want of subject matter inasmuch as the alleged invention involved no inventive step. The scope of that objection having regard to s. 100 (e) of the Patents Act 1952-1955 was discussed by Williams J. in H.P.M. Industries v. Gerard Industries Ltd. [1] . As will be seen the decision of the present case proceeds upon the assumption that the view adopted by his Honour that the scope of the objection has been enlarged is correct. By the judgment appealed from the counter-claim was dismissed and an injunction during the continuance of the patent against infringement by the defendant was granted.

1. (1957) 98 C.L.R. 424, at p. 434 et seq.

The invention the subject of the patent relates to an improved float valve. A float valve is used in cisterns troughs and the like and is a means by which a floating ball carries up the arm of a lever as the cistern or other vessel fills and, by means of a sliding valve worked by the lever, closes the orifice whence the water or other liquid issues. The valve is formed of a cylinder containing a sliding plunger or piston which is moved against the aperture through which the water flows and so shuts it off. In such a device the hollow ball at the end of the horizontal lever is raised vertically by the rising water in the cistern or other reservoir. Of course the sliding piston or plunger must be pushed horizontally and held by a horizontal force against the orifice. The vertical force provided by the rising ball is transmuted into a horizontal force by means of a turn at right angles of the lever. The arm or lever is turned upwards at the other end and is pivoted at the angle. The vertical section of the bent arm forming the lever then turns upon the pivot as a fulcrum and exerts its force upon the sliding plunger or piston and moves it forward to shut the aperture or orifice through which the water flows. The practice, before the alleged invention came into use, was to place a cam at the end of the lever to enmesh with a slot or cavity in the piston or plunger for the purpose of moving it forward. The cam was thrust through a slot in the cylinder in which the piston or plunger moved and then into the slot or cavity of the piston. The invention claimed by the plaintiff respondent is concerned with a substitute for the cam, its mode of engagement and of pivoting. Under the practice followed before the alleged invention took effect, the water coming from the main supply was held by the pressure upon the piston and cam so that it could not enter the cylinder or chamber. This pressure was exerted when the water rose and the floating ball raised the arm so that the cam set at right angles to it was moved forward in its cavity or slot in the piston or plunger and thus thrust the latter against the orifice through which the water would otherwise discharge. The chamber is cylindrical and when the orifice or aperture is open the water turns at right angles and is discharged through a vent or short pipe into the cistern or reservoir. According to the then prevailing practice the cylinder contained a round sliding metal piston or plunger of such a diameter that it fitted closely the bore of the cylinder. At the end which would be pressed against the aperture forming the inlet of water to the cylinder the piston was provided with a washer held by flanges of the metal. On one side of this cylindrical shaped valve or plunger it was the practice to cut out a section or a slot for the purposes of taking the cam of the pivoted arm or lever which has so far been referred to by the word cavity. The cam was flat and necessarily was not thick. Its thickness could only be such as would mean that it occupied but a relatively small proportion of the space provided by the section cut from the cylindrically shaped plunger. The flat cam was circular in shape at the top and narrowed at the neck where the hole for the pivot occurred. There was a slot cut in the cylindrical chamber on the underside for the purpose of admitting the cam. The piston or plunger was inserted into the chamber, the section that had been cut out being placed opposite this slot and the cam fitted through the slot into the cavity. A split pin or the like was passed through holes in the walls of the cylinder and through the pivot hole in the cam. By the split pin the arm and cam were at once pivoted and secured. The movements up and down of the hollow ball and the attached arm forced the plunger forwards and backwards thus closing and opening the orifice through which the water flows.