7.3.2 Dr Mazur
100 Dr Mazur gave factual, historical and expert evidence. Initially, objection to Dr Mazur giving expert evidence was foreshadowed by Bradken on the basis that Dr Mazur could not satisfy any test as to independence. However, I was satisfied that it was entirely competent for Dr Mazur to give evidence but clearly there would be a question as to weight to be attached, on the one hand, to a totally independent expert and, on the other, to one who is a director of the company and who had a significant financial interest at stake in the outcome.
101 Dr Mazur explains that Lynx was established in Perth in 1993 by Mr Kilian, the other director and shareholder who also gave evidence. Dr Mazur has been with Lynx since 1994 and gives detailed evidence as to his engineering background and qualifications. He explains that in his current position as Manager of WA operations of Lynx, his duties involve the design of rolling stock, analysis and structural audits of mining plant machinery and rolling stock including locomotives and wagons and the development of advanced methods for condition monitoring research and development (R and D) projects of rail vehicles based on machine vision inspection systems. His duties at Lynx have also included monitoring systems for vibration measurements, development of various instruments to measure residual stresses and ferrous material, ultrasonic load sensor for a breaking system and the development of proprietary software using the latest numerical methods and signal process and techniques. In this capacity, he provides his engineering experience and technical knowledge with programming skills.
102 Dr Mazur deposes that Lynx specialises in advanced methods for condition monitoring of railway vehicles, railroad related apparatus, wagon and container designs, the design and condition monitoring of mining plant and machinery in offshore and onshore structures.
103 He and Mr Kilian jointly supervise development teams of Lynx employees, consultants and contractors. They have worked out of Lynx's offices in Perth and on site at relevant locations including, for example, BHP's railway network in Port Hedland.
104 Dr Mazur's extensive experience in railroad related projects is outlined at considerable length in his affidavit.
105 He agrees with Mr Anic that persons skilled in the art would keep up to date with rail industry developments from journals and papers and through talking to suppliers, perhaps visiting overseas manufacturers and attendances at conferences and seminars. Dr Mazur also agrees that such a person would also have access to certain of the types of documents to which Mr Anic refers, namely, the various Rail Standards. However, the Australian National rolling stock outline book, the Australian National Document archive database and the Australian National Technical Library are all private sources, access to which was controlled by the owner, the Australian National Railways. Access is and would be, in his experience, restricted to authorised people, such as employees.
106 Dr Mazur does not consider that the common general knowledge of a person skilled in the art would have differed at March 1998, March 1999 or 18 October 1999. Accordingly, his references to 30 March 1998, being the date of filing of the Lynx Provisional Specification apply equally to the other two dates when the Lynx Complete Specification became open for public inspection in the Australian Patents Office.
107 As at those dates, he says the basic conventional design of wagons, including those suitable for unloading in a rotary dumper, had been adopted since about the mid-1950s or slightly earlier. He refers to several examples to make his point. No significant design changes were made to such containers prior to 1998 before the Lynx wagon was created. As at that date, for persons skilled in the art of considering bulk material containers, commonsense required that such containers typically had two side walls, two end walls, a floor and flat interior walls with no elements protruding towards the interior of the container that could prevent the smooth flow of material during unloading. A person skilled in the art as at that stage would have been aware of the fact that a container would have side posts and/or horizontal stiffeners attached to the side walls on the outside of the container, rather than on the inside. In some case, vertical side posts would be attached to the inside of the side wall. A few examples of this type of arrangement are set out in the 1946 Car Builders' Cyclopedia of American Practice (the 1946 Cyclopedia) where hopper-type wagons designed for bottom discharge are shown. The side posts of those wagons run in a vertical direction and in which case they would not be considered to stem the flow of material when discharged through the bottom gates.
108 Dr Mazur deposes that as at March 1998, there were certain regulatory requirements limiting the axle loads for rail containers as well as the outer dimensions of the cross-section of the container. Limitations were also placed on the length of the container. There were known problems amongst those concerned with designing bulk material containers including metal fatigue, corrosion and cracking. There were no known operational problems with unloading of the conventional bulk material containers. However, the containers had volume limitations because they had to be able to fit existing infrastructure such as unloading facilities. That meant that the container could not exceed specified dimensions.
109 Furthermore, because the side walls needed to be reinforced by side posts and/or horizontal stiffeners attached to the exterior side walls to the container, they could not be moved outward to increase the volume since the protruding side posts already brought the container to its maximum allowable dimensions. In addition, the horizontal structural stiffeners at the top rim of the container also protruded outwards. The accepted method of constructing or reinforcing side walls of bulk material containers was to construct flat side walls, that is, walls that had a flat interior service. They were reinforced by either vertical side posts or horizontal stiffeners attached to the outside of the container or both. Those posts and stiffeners were attached to the outside so that the interior of the side walls remained flat to enable smooth material flow and discharge of material during unloading. It was generally accepted that any physical protrusions on the interior side walls would obstruct the flow of bulk material. Since the side walls required reinforcement with side posts and/or stiffeners, they were attached to the outside so that the interior walls could remain flat. Conventional thinking was to have flat internal side walls to avoid hang up during unloading operations.
110 Dr Mazur takes issue with a number of Mr Anic's observations. Generally speaking, he does not accept that the photographs relied upon by Mr Anic to make certain points, particularly concerning stiffening and strengthening of the structure, established the points to which Mr Anic alluded. For example, Mr Anic's first affidavit refers to 'flat vertical side sheet sub-assemblies (with no curvature) being reinforced prior to 30 March 1998 by welding on vertical stiffeners' as illustrated in figure 2. Dr Mazur says that the figure does not illustrate that at all and is not an example of 'stiffening ribs welded internally' for an articulated container carrier car. Dr Mazur deposes that the car, as was evident from Mr Anic's own description, is not intended to function as a bulk material container and has no relation to a bulk material container. It is designed to carry sea containers. The vertical stiffening ridge, therefore, has a different structural purpose and is designed to withstand completely different loading scenarios than vertical reinforcing ribs in a bulk material container. The vertical stiffening ridge shown in figure 2 is designed to prevent buckling of the wagon inside walls and during the operation is not subjected to the forces associated with bulk material pressure.
111 Dr Mazur rejects Mr Anic's reference to a passenger wagon in relation to geometric stiffening. Dr Mazur describes this as being far removed from the bulk material container. An example of 'cold-rolling' with the passenger wagon cited by Mr Anic is not related to the design of a bulk material container because it is not a suitable stiffening technique. Cold-rolling is the manufacturing process used for forming thin sheet material. For bulk material containers to withstand bulk material pressure, Dr Mazur explains, wall and floor sheets need to be significantly thicker with thickness varying between 4 mm and 6 mm. In addition, the size of the corrugations and their depths in comparison with those figured in Mr Anic's passenger car or wagon would need to be significantly bigger to provide sufficient strength to withstand bulk material pressure.
112 Dr Mazur's view is that since the late 1960s when large scale iron ore production began in the Pilbara in Western Australia, all rail wagons were based on an American design that was developed during about the mid-1950s. At the beginning of its production, BHP purchased a set of wagons and a rotary dumper which had been used between 1961 and 1968 for the construction of the Oroville Dam in California in the United States. That played a key role in shaping all future designs for BHP wagons by restricting the wagons' external dimensions to fit into the existing car dumper.
113 In about 1986, BHP started to consider increasing its capacity for exporting iron ore. Rather than running extremely long trains with then typical wagons, it wanted to increase the loading capacity for each wagon. It therefore needed a new design that could achieve this objective. Increased axle loads could not be achieved with typical containers because their loading capacity was not large enough. In addition, their tare weight was heavy.
114 Dr Mazur cites BHP's Rolling Stock Handbook of March 1993 depicting wagons which formed part of BHP's then existing fleet. Some of these had been in service since about the late 1960s. In the period from 1994 to 1998, Lynx completed several railway related projects for or involving BHP's rolling stock. Mr Kilian and Dr Mazur carried out those projects with the assistance of various engineers, technicians, consultants and contractors engaged by Lynx. In about 1997, in the course of carrying out the projects, it was decided that the best way forward was to develop a design concept which became the Lynx wagon design which did not have the manufacturing and design problems of the wagons that had been previously used. The new design concept involved what Dr Mazur describes as a new concept for side walls for bulk material containers that could transport more ore, cost less to operate and be manufactured more cheaply than conventional containers.
115 Dr Mazur deposes that he and Mr Kilian came up with the idea of a side wall stiffening technique which would allow an increase in volume without causing severe hang up problems. This was developed during about July 1997 after a series of lengthy discussions and meetings during which they discussed, amongst other things, the wagons that they had worked on during the course of the project and how they could be improved. Early in the initial design phase of the Lynx wagon design, they decided to depart from the design concept of wagons with traditional flat side walls, with external stiffeners. In contrast, they developed the ideas for the design features which Dr Mazur says are reflected in the following passages of the Lynx Provisional Specification:
(a) A container for transporting bulk materials having two side walls, two end walls, and a base; the side walls having a plurality of vertical reinforcing members spaced along the length of the side wall, wherein the wide wall between at least one adjacent pair of reinforcing members includes at least one internal ridge running there between.
(b) Preferably, at least one internal ridge between each of the reinforcing members.
(c) Preferably, at least one internal ridge between and end wall and a first reinforcing means.
(d) Ideally, the internal ridge includes a first wall portion angled from the wall towards the interior of the container, and a second wall portion rejoining the first wall portion to the wall.
(e) The angle of the first wall portion is in the direction of flow during unloading of the material to be transported.
(f) Alternatively, the internal ridge includes a first wall portion deflected inwardly a progressively increased degree relative to the intersection of the side wall and the base, and a second wall portion extending from the first wall portion and being deflected outwardly a progressively decreased degree relative to the intersection of the side wall and the base.
(g) The angle of the first wall portion may be determined by subtracting the natural angle of repose of the transported product, from the angle the container is rotated during unloading. Whilst the first and second wall portions may be symmetrical, they may also be of uneven length.
(h) The examples of calculations in the Provisional Specification.
(i) A container that fits into the prescribed parameters, such as the maximum dimensional requirements, but still allows for an increased payload capacity without sacrificing structural strength. The more efficient structural design means that the container is lighter and more aerodynamic. Furthermore, the shape of the container is such that the product unloads easily and no product is left in the container after unloading.
116 As the design they were working on was intended for BHP, it was necessary to work within the restraints imposed by BHP dumping cells and the fact that BHP wanted wagons that would be fully compatible with its existing rolling stock. One objective was therefore to design a wagon that would be fully interchangeable. There was, therefore, a departure from existing wagon designs because the objectives of achieving a more cost effective, lighter and increased capacity wagon could not be achieved by applying traditional design methodologies. Once Dr Mazur and Mr Kilian were happy with the design and decided that the concept was likely to be patentable ('as it was very different from all wagon designs of which we were aware') and they 'agreed to instruct patent attorneys to apply for a patent on behalf of [Lynx]'.
117 As a result, in about October 1996, Lynx engaged Mr Paul Fong of Watermark Patent and Trade Mark Attorneys, to prepare a specification for a patent for the Lynx wagon design. It was completed in about March 1998 and, as previously indicated, the Lynx Provisional Specification was lodged on 30 March 1998.
118 The Lynx wagon design is in, Dr Mazur's opinion, a new design for a container that is different from all those in use around the world for transport of bulk materials. This is principally because it does not have flat side walls in the interior of the containers and has side walls with horizontal ridges projecting inside the wagon with particular features. Dr Mazur expresses the view that a person concerned with wagon design endeavouring to achieve the significant benefits and novel design features of the Lynx wagon design could not, in March 1998, March 1999 or October 1999 do so merely by trial and error or routine investigation and design. In Dr Mazur's opinion, while a routine modification might have been to attach side posts to the interior rather than the exterior such that the side walls are at or near the maximum 'dimensional envelope', it was not possible to achieve the Lynx wagon because the side wall involves a way of thinking about side wall design reinforcement and the flow of material during unloading which was 'very different from conventional wagon design practice at the time'.
119 Before addressing some of the more technical issues, it is convenient to touch on the evidence of Dr Mazur concerning the practical application of the Lynx Complete Specification in manufacture of prototypes, prior to commercial production. Dr Mazur refers to the trial process when three fully operational prototypes of the Lynx wagon design were delivered to BHP between late December 1998 and mid-January 1999 for trial and testing under operating conditions. The prototypes were put to service for prototype testing. They were instrumented with strain gauges, accelerometers, speedometers, displacement transducers and other electronic instruments.
120 Lynx performed extensive data acquisition on the fully instrumented prototypes. The instruments recorded the following:
(a) Dynamic performance of the wagons;
(b) Stress levels on critical components during loading;
(c) Stress levels in critical components during travel;
(d) Accelerations and stress experienced to in train forces; and
(e) Stress levels in critical components during unloading.
121 Lynx prepared a report for BHP entitled 'Golynx Car Body Conformance Documentation for BHP Iron Ore' (Conformance Report). It was dated March 1999. It contained the results of the testing conducted on the prototypes and documentation verifying that the prototypes conformed with BHP's performance criteria and which Lynx provided to BHP whilst Lynx continued to test the prototypes and collect data. This process lasted for six months between about late-December 1998 and May 1999. During that period almost every trip that the prototypes made was recorded and the data was sent to Lynx's Perth office for analysis. Lynx developed specialised software for that purpose.
122 The prototypes were weighed to certify their weight. Unloading tests were also carried out during which the prototypes were extensively tested in BHP's dumper cells to ensure the product would discharge cleanly with no hang ups of ore.
123 Full scale tests were conducted to compare the aerodynamic performance of the prototypes with the existing wagons. This was a very large undertaking as the prototypes were put through stringent tests for strains, weight checks, volume loading and unloading, dynamic stability along with other tests.
124 The cost to manufacture wagons constructed according to the Lynx wagon design (the Golynx Wagons) was approximately $59,732 in the mass production environment for a wagon body alone without any associated running equipment. This was lower than that of typical wagons. BHP evaluated the three prototypes and conducted an extensive cost-benefit analysis before deciding to purchase the prototypes as part of the first 109 wagons ordered in or about June 1999.
125 In addition, Dr Mazur points to the fact that the design achieved a 40 tonne axle load which was the heaviest in the world. This meant that the wagons could carry 140 tonnes of iron ore whilst weighing only 21.5 tonnes which equals a gross weight of 160 tonnes and equates to a 40 tonne axle load. In addition, they were 20% cheaper to manufacture than a conventional wagon. Lynx was able to achieve this because the body of the wagons was 30% lighter than existing wagons which resulted in the use of less material when manufacturing the wagons. The design also meant fewer structural components with only four vertical reinforcement members in each side of the wagon in comparison to the six reinforcement members on the then current Comeng Ore Car. The wagon body was 30% lighter than conventional containers that are manufactured from corrosion resistant material to extend wagon life. They reduced aerodynamic drag by 20%. They reduced fuel consumption of the car by at least 10-15%. They increased the carrying capacity without changing the external container dimensions. They reduced or had minimal maintenance costs. They were seen as seamlessly integrated into the BHP operations so that no new infrastructure or mechanical equipment was required. They discharged product cleanly during unloading. Consequently, after completion of the testing of the prototypes, BHP placed orders and Lynx enjoyed commercial success and recognition, including winning three Engineering Excellence Awards.
126 The contractual arrangements were dealt with directly between BHP and A. Goninan & Co Ltd (Goninan). Goninan manufactured the wagons on behalf of Lynx pursuant to a technology licence and a royalty payment agreement. The licence being dated 30 June 1999 and the royalty payment agreement being 16 October 1998. Pursuant to these, Lynx receives a licence fee.
127 To date, about 3,850 wagons constructed according to the Lynx wagon design have been sold to BHP. BHP presently has approximately 6,000 wagons in service.
128 Dr Mazur expresses the view that the features of the invention as claimed in claim 1 (upon which each of claims 2 to 22, 24 and 25 and the additional feature in each are cumulative and directly or indirectly dependent) are appropriately set out as follows:
Claim 1:
(1) a container for transporting bulk material and for rotary and or tipping unloading;
(2) the container including two side walls, two end walls, and a base;
(3) said side walls (a) including a plurality of vertical reinforcing members spaced along the length of each said side wall, (b) where in a section of said side wall between at least one adjacent pair of said reinforcing members includes at least one internal ridge running there between;
(4) the said at least one internal ridge including a first wall portion angled towards an interior of said container;
(5) wherein the angle is in the direction of flow of the material during said rotary tipping or unloading; and
(6) wherein said at least one internal ridge is integrally formed within said side wall and said at least one internal ridge has a depth greater than the thickness of said side wall.
129 Dr Mazur considers the features which are claimed initially and cumulatively in the claims of the Lynx Complete Specification cooperate and combine in the respective claims to produce a new and improved wagon for the transport of bulk material by rail or road. He stresses that in his view Mr Anic does not consider whether the invention disclosed and claimed is a combination and what features are the features of the combination in his discussion or analysis of the Lynx Complete Specification.
130 He considers the following definitions or meanings apply where used in the Lynx Complete Specification and in the common general knowledge of a person skilled in the art:
(a) Bulk material is material consisting of large quantities of loose particles or granules that need to be contained in a container for transportation. It includes but is not limited to sand, crushed rocks, soil, gravel, cement, grain briquettes, iron ore, coal and similar materials.
(b) The internal ridge of the Lynx Complete Specification is the element that extends towards the inside of the wagon and runs along the side wall horizontally. It is an integral part of the side wall in the sense that it not only provides structural strength to the side wall but also keeps/contains bulk material inside the container. It is part of the side wall. Its removal would not only weaken the side wall but would also allow bulk material to spill outside the container's original silhouette. The functions of the internal ridge in the Lynx Complete Specification are to strengthen the side wall, to contain bulk material inside the container, to provide clean discharge of the material and to increase the volume of the container. Dr Mazur comments on the evidence of Mr Anic in relation to 'partial internal ridge' where Mr Anic says that the partial internal ridge may extend along the top edge rim of the side walls. Such a partial internal ridge 'may consist of the first wall portion of the internal ridge'. As a result of that citation Mr Anic concludes that in his understanding the internal ridge differs from the partial ridge in that, in addition to having a first wall portion, it also includes a second wall portion. Dr Mazur says this interpretation is incorrect because the citation is taken out of context and should be read as follows:
A partial internal ridge may extend along the top edge or rim of the side wall. Such partial internal ridge may consist of the first wall portion of the internal ridge. In this case an additional strengthening member along the edge or rim of the side wall would be included. (emphasis added)
Dr Mazur says that it is quite clear from this citation when provided in context that the role of the second wall portion in partial internal ridge is that of an additional strengthening member along the edge of the side wall. That is specifically mentioned when describing the figures attached to the Lynx Complete Specification. The Lynx Complete Specification states (at p 7, lines 17-19) that 'rim 11 effectively compensates for the emission of the second wall of the internal ridge, thereby insuring that structural strength is sufficient'. Basically the difference between the complete internal ridge and the partial internal ridge is not in the number of wall portions, but in the position which a respective ridge takes within the side wall and its functionality.
The internal ridge has both the first wall portion and the second wall portion performing reinforcing and retaining functions as an integral part of a side wall. In the partial internal ridge only a first wall portion performs both strengthening and retaining functions and a second wall portion or its equivalent serves a mostly strengthening role because it normally does not come in contact with bulk material.
(c) Integrally formed in relation to the internal ridge of the Lynx Complete Specification means that the ridge is formed to be an integral part of a side wall and therefore part of the structure of the side wall and of the container not just an optional or add-on strengthening member. The integrally formed ridge can be achieved by bending or pressing the plate into the required side wall silhouette or by fabricating the ridge, for example, by welding individual plates to construct the side wall to achieve this silhouette. In relation to 'integrally formed', Mr Anic makes the point that in the engineering context, integrally formed means formed from a single piece of material which was consistent with understanding of the use of the term in the Lynx Complete Specification to mean physically formed from the same material as opposed to being formed from a separate material and subsequently joined together by welding or some other process. Dr Mazur also disagrees with this expression of opinion by Mr Anic. There is no requirement in the Lynx Complete Specification that the ridge be formed from a single piece of material together with the wall. It is not limited to only one specific way of manufacture. Various manufacturing technologies are available to achieve the same final result. They may all allow for structural and geometrical interpretation. In Dr Mazur's opinion, the term integrally formed means that the ridge formed within the side wall becomes an integral part of it by providing not only a strengthening effect but also by providing a means of retaining bulk material inside the container.
131 Although Mr Anic's understanding of the term 'internal ridge' in Dr Mazur's view is generally correct, his statement that use of geometric stiffening to strengthen the side walls of rail wagons was known and used in the industry prior to 30 March 1998 was said to be 'not correct'. The example Mr Anic refers to is a passenger wagon which is far removed from a bulk material transport wagon. Dr Mazur repeats there are no relevant examples of geometric stiffening of bulk material transport wagons.
132 Dr Mazur considers all of the items of prior art on which Bradken had previously relied. When Bradken's case on this issue was reduced at trial to Gilpin, Dr Mazur's evidence focussed only on that patent. I will only refer to his evidence in relation to Gilpin, apart from initial reference to some general matters.
133 The first general matter is that Dr Mazur does not accept that any item was published or available in Australia except to the extent he expressly indicates.
134 Dr Mazur deposes that for bulk containers one of the most important technologies affecting the design is the practice of handling the bulk material, especially loading and unloading procedures. The mid-1950s were an important milestone in the history of bulk material handling practices especially in the field of railway wagon unloading. During that period, the F-type rotary coupler was introduced. It is the component which connects one wagon to another wagon or to a locomotive. Each wagon or locomotive usually has two couplers, one at each end. The F-type rotary coupler allows the wagons to be unloaded in a rotary dumper without the wagons being disconnected from each other. Before that wagons needed to be decoupled from the rest of the train before being capable of being unloaded in a rotary dumper. During uncoupling, the airbrake hoses also needed to be disconnected. The risk of injury to railroad personnel was high during this operation. It was dangerous and time consuming and one that needed to be done very carefully to make sure that no dirt entered the braking system which could potentially lead to braking system failures and cause an accident.
135 Once uncoupled, the wagon would be emptied very quickly by rotating it upside down. Since the wagon was disconnected from the rest of the train, rotation was completely unrestricted. Unrestricted rotation, the process of turning the wagon completely upside down for unloading is specifically mentioned in several prior art items including by another Gilpin patent in 1943.
136 In those circumstances, if a wagon has protrusions inside its walls such as corrugations, reinforcement ribs or stiffeners, rotating it upside down helps to overcome material hang up problems that would be caused by those protrusions. However, when the rotary coupler was introduced in the mid-1950s wagons no longer needed to be separated from the train and the speed of the unloading process increased dramatically. Soon the entire unloading cycle became automated because no human involvement was required to disconnect and reconnect the wagons. In addition, the significant delays in train operations because of the requirement to check the braking system after reconnecting the wagons were eliminated. This further improved efficiency of operation. With the rotary dumper, instead of needing to be disconnected, the brake hoses were allowed to wrap around the coupler during the wagon rotation. To avoid hose damage or forced disconnection during the dumping cycle, the angle of rotation of the wagon needed to be restricted.
137 Dr Mazur explains that another important reason for setting limits to the angle of rotation is that it helps to shorten the dumping cycle which further improves the efficiency of operation. As such, it takes the same amount of time to rotate six wagons by 150˚ as it does five wagons by 180˚. As a result 130 to 150˚ limits for angles of rotation became the standard for rotary dumper design.
138 The use of F-type rotary couplers resulted in a change in the design of bulk material contains unloaded by rotary dumping. All internal protrusions were removed from the design of rail wagons because they caused material hang ups. The side walls were designed to be flat and clear. All wagons designed at or before 1984 being the date of The Car and Locomotive Cyclopedia of American Practices (5th ed, 1989) (the 1984 Cyclopedia) for use in rotary dumpers has smooth internal walls and only external stiffening.
139 According to Dr Mazur, especially telling, is the comment in the 1984 Cyclopedia which states 'with the addition of rotary couplers these versatile hoppers may be put in either rotary dump or trestle unloading service. The clean interior surfaces hasten complete unloading by the method' (emphasis added). In examining Gilpin, which Bradken relies on for prior art, Dr Mazur notes that it is entitled 'wall panel for railway cars' and describes side wall plans with pockets or domes manufactured with 'small outwardly projecting corrugations' to protect the panel from being scratched by clamping during unloading operations. He expresses the view that the internal ridges of the Lynx Complete Specification are not disclosed in Gilpin. Gilpin does not disclose rotary or tipping unloading as understood since the introduction of the F-type coupler as those terms are used in the Lynx Complete Specification.
140 Further, Dr Mazur opines that Gilpin does not disclose the ridge of the Lynx Complete Specification in the side wall of the container and the direction of the flow of the material. Indeed, Gilpin leads away from disclosing such a ridge as it discloses to the contrary flat wall sheets with proper tall domes with claimed 'substantially vertical' corrugations.
141 Dr Mazur points out that Gilpin describes the construction of the side wall for open top railway wagons, such as hopper and gondola type wagons, and further states that the design can be used not only for side walls of open top railway wagons but also for constructing end walls, floors and even roofs of the wagon including box cars, refrigerator cars and suchlike. Apart from that very general statement, no further explanation or illustration is given on the wagon structure. In fact, only a small portion of the side wall is shown to illustrate various embodiments of the invention.
142 Dr Mazur expresses the view that Gilpin teaches and discloses a railway wagon wall construction with a major part of the wall sheet stiffened by, and in plane with the posts supported by, one or more corrugations protruding inside or outside the wagon wall. In his view, it does not teach or disclose a container for rotary or tipping unloading with the internal ridge with an angled first wall portion, let alone the internal ridge with a second or third wall portion of the Lynx Complete Specification. According to Gilpin, the side wall is constructed as a frame consisting of a top frame member, a bottom frame member and vertical posts connecting the top and bottom frame members and forming truss or girder-like structure. Spaces between these frame members are filled with wall sheets formed in such a way that when welded to the frame members, they provide some support and prevent lateral deflection of the vertical posts.
143 Gilpin also teaches 'to form at least part of each wall sheet with corrugations, or other sinuous configurations, and to associate the vertical edges of such corrugated part of the sheet with the posts to prevent torque or twisting of such posts when under load' (emphasis added). Dr Mazur makes the point that from this statement it is clear that the main purpose of the corrugations is to reinforce the thin vertical posts. It also gives instructions on how to form these corrugations in a sine wave pattern. However, Dr Mazur stresses that the corrugations, as disclosed and described in Gilpin, do not form an internal ridge as disclosed and claimed in the Lynx Complete Specification for the following reasons. First, they are not confined to a container for transporting bulk material and for rotary or tipping unloading. Second, the Gilpin corrugations are constructed and shaped differently from the Lynx internal ridge; they do not have what can be described as a 'first wall portion' which must have an angle in the direction of the flow of bulk material during rotary or tipping unloading as required and claimed by the Lynx Complete Specification. Third, they do not have a first wall portion distinguishable from a separately identifiable second wall portion, being claim 5 of the Lynx Complete Specification rejoining the separately identifiable first wall portion to the side of the container and a separately identifiable third wall portion joining the first and second wall portions. Fourth, the corrugations in Gilpin are not themselves defined or described. They may be single or they may be multiple. They may be sinuous, they may project inside or outside the wagon wall. While they may preferably have sloping upper and lower walls so as to not interfere with discharge of the lading through bottom hoppers, or through the top of the wagon in an unloading machine, there is no teaching that the angle of any part of the corrugation should be related to the direction of flow of bulk material during rotary or tipping unloading.
144 Due to the shape of the horizontal corrugations shown on figures 1-10 in Gilpin, being much steeper than the internal ridges described in the Lynx Complete Specification, these corrugations will not allow full discharge of bulk material from the container in the modern rotary dumper. In Dr Mazur's opinion, where Gilpin refers to discharge 'through the top of the car in an unloading machine', it will be understood by a person skilled in the art as referring to the car when uncoupled (prior to the time of the F-type coupler) being turned upside down about 180˚. Further, the purpose of the corrugations described and disclosed in Gilpin and the object of the invention described and claimed in Gilpin is to provide stiffening for the side walls and support for the posts or stakes of the car. Thus, Dr Mazur concludes, Gilpin is simply not directed to the invention or objects of the invention of the Lynx Complete Specification.
145 Further differences include the fact that in addition to corrugations, the wall sheets in Gilpin also contain a top wall portion which is 'sloping inwardly' and is located in approximately the same part of the side wall (along the top or rim of the side wall) as the partial ridge described in claims 17 to 20 of the Lynx Complete Specification. Unlike the Lynx Complete Specification, which gives precise instructions about how to design the 'partial ridge', including accurate mathematical expressions on how to derive the angle at which it is 'slopping inwardly' (by reference to claim 7 and claim 8 of the Lynx Complete Specification), Gilpin does not give any further description of this part of the side wall. Therefore, the feature as described in Gilpin does not disclose claims 17 - 20 of the Lynx Complete Specification.
146 Mr Anic concedes that the additional features claimed in claims 3, 10-16, 18, 22 and 24 of the Lynx Complete Specification are not expressly disclosed in Gilpin. In Dr Mazur's opinion, Gilpin does not disclose the invention of a Lynx Complete Specification as claimed in claim 1 and, in particular, lacks the following features (the features and the parts of features which are not disclosed being emphasised in bold print):
(1) A container for transporting bulk material and for rotary or tipping unloading.
(2) The container includes two side walls, two end walls and a base.
(3) Said side walls (a) including a plurality of vertical reinforcing members spaced along the length of each said side wall, (b) wherein a section of said side wall between at least one adjacent pair of said reinforcing members includes at least one internal ridge running there between.
(4) The said at least one internal ridge including a first wall portion angled towards and interior of said container.
(5) Wherein the angle is in the direction of flow of the material during the rotary tipping or unloading.
(6) Wherein said at least one internal ridge is integrally formed within the said side wall and said at least one internal ridge has a depth greater than the thickness of said side wall. Wherein said at least one internal ridge is integrally formed within the said side wall and said at least one internal ridge has a depth greater than the thickness of said side wall. Wherein said at least one internal ridge is integrally formed within the said side wall and said at least one internal ridge has a depth greater than the thickness of said side wall.
147 It follows, says Dr Mazur, that Gilpin does not disclose the invention of the Lynx Complete Specification as claimed in claim 1 together with any of the additional or further features of the subsequent claims. As an example, Dr Mazur says that a person would not know from Gilpin whether the corrugations should protrude into or outside the wagon wall, or whether the angle of any portion of the corrugations should be in the direction of flow of bulk material during any specific time and operation, for example, during rotary unloading or tipping of bulk material. In Dr Mazur's view, Gilpin does not contain clear and unmistakable directions to produce what would constitute a reverse infringement of the Lynx Complete Specification.
148 In the context of considering the views expressed by Mr Anic concerning the features of the claims of the Lynx Complete Specification, once again, Dr Mazur expresses the general complaint that Mr Anic discretely isolates each of the claims without necessarily relating them to other parts of the claim which qualify them and as such, no opinion has been provided by Mr Anic in relation to the totality of the invention as claimed. Further, Dr Mazur disagrees with the division of the features of the claims as articulated by Mr Anic.
149 Notwithstanding these disagreements, he makes the following observations about Mr Anic's evidence. Dr Mazur agrees with Mr Anic that Gilpin is exclusively for the transportation of bulk material, which he says receives only a passing mention. While it might be used for that purpose, it is not specifically directed to that purpose as is the Lynx claim. As to claim 1(b), for rotary or tipping unloading, Dr Mazur stresses (again) that the context in which the Gilpin claim would be understood would be very different from the way in which the Lynx Complete Specification would be understood because an 'unloading machine' at the time of filing Gilpin in the mid-1930s was very different to that of a modern rotary dumper, particularly in relation to the angle of rotation. If the wagon described in Gilpin were put into practice into a modern dumper, it would fail to fully unload. Modern dumpers do not permit the wagon to be turned upside down as there is no decoupling.
150 As to claim 1(d), namely, that said side walls including any plurality of vertical reinforcing members spaced along the length of each side wall, Dr Mazur agrees that this part of claim 1 of the Lynx Complete Specification considered separately is disclosed in the Gilpin but only taken in isolation.
151 As to claim 1(e), namely, wherein a section of said side wall between at least one adjacent pair of said reinforcing members includes at least one internal ridge running there between, he disagrees with the observations of Mr Anic that there is any internal ridge in Gilpin in the sense of a ridge as described and claimed in the Lynx Complete Specification. In Gilpin, (as discussed above at [143]-[144]) there are corrugations disclosed which have a different shape and serve a different purpose to the ridge in the Lynx Complete Specification and claims. This internal ridge aspect of the Lynx Complete Specification is, therefore, not disclosed by Gilpin.
152 As to claim 1(f), namely, that the said at least one internal ridge including a first wall portion angled towards an interior of said container, Dr Mazur disagrees Mr Anic's conclusion that such an internal ridge is evident in Gilpin.
153 As to claim 1(g), namely, wherein the angle is in the direction of flow of the material during said rotary or tipping unloading, Dr Mazur disagrees with Mr Anic's conclusion which is to the effect that during rotary unloading the payload will be discharged through the top of the container described in Gilpin. In this sense, the sloping lower wall is in the direction of flow as it slopes towards the top of the container. The reason Dr Mazur disagrees with the conclusion based on that comment by Mr Anic is that if a corrugation is designed according to Gilpin, then it will stop bulk material from unloading unless the wagon is completely inverted upside down and instead of 'flowing towards the top of the container' some of the bulk material will be retained by corrugation inside the container. By contrast, if a wagon is built according to the Lynx Complete Specification, the ridge will be specifically shaped so that the first wall portion is angled such that sufficient strength is given to the side wall but the flow of bulk material is not restricted during unloading in a modern rotary dumper without the need for the wagon to be turned completely upside down. In any event, Dr Mazur notes, is not possible in modern practice with the F-type rotary couplers and the wagons remaining coupled. Therefore, at the end of the unloading cycle when the wagon is rotated at any suitable angle, bulk material adjacent to the first wall portion which was not in motion before will be mobilised and will start flowing along the first wall portion until the wagon is empty. In contrast, in the case of Gilpin, due to the shape of the corrugation, bulk material adjacent to corrugations could only be mobilised if the car was completely inverted in an unloading machine as would have been the case in 1935. In that event, the bulk material adjacent to the corrugation would flow over the corrugation. If the car were equipped with a rotary coupler to enable it to go through a modern car dumper, then the bulk material adjacent to the corrugation would not be mobilised during unloading and would stay in the car causing material hang ups.
154 As to claim 1(h), namely, wherein said at least one internal ridge is integrally formed within the said side wall, while Dr Mazur agrees with Mr Anic that the corrugations described in Gilpin are integrally formed within the said side wall, they are not, in his opinion, 'ridges' as disclosed in the claim of the Lynx Complete Specification. They have a different shape and serve a different purpose than the internal ridge disclosed in the Lynx Complete Specification.
155 As to claim 1(i), namely, and said at least one internal ridge has a depth greater than the thickness of the said side wall, Dr Mazur disagrees with Mr Anic that figures 1 and 2 in Gilpin clearly show that the depth of the corrugation is greater than the thickness of the side wall. In any event, his view is that this 'feature' should be read with Mr Anic's features claims 1(g) and 1(h) as a total feature of the Lynx Complete Specification. Claim 1(i) is not disclosed because the internal ridge in the sense of an internal ridge described in the Lynx Complete Specification is not present in Gilpin for reasons set out above. There is no description in Gilpin of the particular geometric relationship between the corrugation's depth and side sheet thickness and the picture only shows that the depth of the corrugation is greater than the wall thickness.
156 In relation to claim 2(i), namely, a container as claimed in claim 1 further including at least one internal ridge between each of said reinforcing members. Dr Mazur disagrees with Mr Anic's conclusion because claim 2, which is in fact a dependent claim, is approached as if in isolation and has not been considered by Mr Anic in conjunction with all of the features of claim 1.
157 In relation to claim 3(k), namely, a container as claimed in claim 1 or 2 including additional reinforcement aligned along said internal ridge between each of said reinforcing members, Dr Mazur agrees with Mr Anic that Gilpin does not disclose the invention of the Lynx Complete Specification as claimed in claim 3.
158 In relation to claim 4(l), namely, container as claimed in any of the claims 1-3, further including at least one internal ridge between one said wall and a first reinforcing member, Dr Mazur disagrees with Mr Anic's conclusions. There is no teaching description, direction or illustration in Gilpin about how a side wall interfaces with an end wall. Therefore Dr Mazur suggests it is simply speculation for Mr Anic to conclude that because the wall sheet in Gilpin must have at least one corrugation, it is inevitable that the wall sheet between the first post and the end wall in Gilpin will include an internal ridge between one end wall and a first reinforcing member as claim 4 of the Lynx Complete Specification requires. Further, Dr Mazur says that Mr Anic in his reasoning merely adds on the additional feature of claims 4 to claims 1-3 without explaining how he does this or how the features and construction of those claims or the Lynx Complete Specification makes it 'inevitable' in the way he has said. As claim 4 is a dependent claim, it must be considered in conjunction with all of the features of claim 1.
159 Dr Mazur takes issue with Mr Anic's conclusion in relation to claims 5(m), 6(m), 6(n) and 6(o) for the same reason as set out above.
160 As to claims 7 and 8(p), namely, a container as claimed in any one of claims 1-6, 'wherein said first wall portion extends from said side wall at an angle Ø1, wherein: Ø1 < Ø2 - Ø3 - Ø4 - 90˚' or in the case of claim 8:
8. A container as claimed in any one of claims 1 to 6 wherein said first wall portion extends from said side wall at an angle Ø1, wherein:
Ø1 < Ø2 - Ø3 - Ø4 -90˚
where:
Ø1 - is the angle between said side wall and said first wall portion,
Ø2 - is the angle said container is rotated during unloading of said container,
Ø3 - is the natural angle of repose of material to be transported in said container, and
Ø4 - is the cohesion of said material to be transported when wet.
161 Dr Mazur disagrees with Mr Anic's conclusion because there is no teaching or disclosure or mention of any angles in relation to the construction of the corrugations to the wall or container. In fact, there is no specific information at all regarding the geometric relationship of the corrugation and the wall. In Gilpin, all that is said is that the 'corrugations are preferably formed with sloping upper walls and sloping lower walls or surfaces so as not to interfere with the discharge of the loading'. This citation does not give accurate or precise instructions. Further, the statement should be read in the light of wagon unloading practices that were in use in 1935. Information available from prior art suggest that wagons in 1935 would be inverted as discussed above. The only guidance on the shape of the corrugations in Gilpin suggests that they should be shaped in a sine wave pattern without any recommendations about how to derive their width and depth. Unlike Gilpin, which has no instructions on how to construct the corrugations, the equations in claims 7 and 8 of the Lynx Complete Specification disclose specific forms of the ridge feature (said first wall portion) dictated by specific characteristics of a bulk material to be transported and the perimeters of the relevant unloading machine (rotary dumper) which is also presented in a form of precise mathematical expressions. Gilpin does not disclose claim 7 and/or claim 8 of the Lynx Complete Specification.
162 In any event, Dr Mazur disagrees with Mr Anic's conclusion that claims 7 and 8 are disclosed in Gilpin in any way. He suggests that Mr Anic takes one of his parts of claim 1 (the angle of the first wall portion) of the Lynx Complete Specification treating it as a separate feature and merely adds on the additional features of claims 7-8 and claim 8 to part of claim 1. For the usual reasons, Dr Mazur disagrees with that approach.
163 As to claim 9(g), namely, a container as claimed in any one of claims 5-6, wherein said first and second wall portions are symmetrical, Dr Mazur disagrees with Mr Anic's conclusion that this is disclosed in Gilpin. He explains that the corrugations in Gilpin are formed in a sine wave pattern and are therefore symmetrical. Because the sine wave form of the corrugation is a continuous smooth feature, it means that the ridge does not have a clearly distinguishable 'first wall portion' and 'second wall portion'. In addition, Dr Mazur raises the usual complaints about this aspect being treated in isolation.
164 As to claim 10(r), namely, a container as claimed in any one of claims 5, 6 or 9 where in said second wall portion is convex or concave, Dr Mazur agrees that this claim is not disclosed by Gilpin.
165 As to claim 11(s), namely, a container as claimed in any one of claims 5, 6, 10 or 11, wherein said ridge further includes a third wall portion between the said first wall portion and said second wall portion, Dr Mazur notes that claim 11 should be read as being dependent on claims 9 or 10 not claims 10 or 11 which would be readily understood from the subsequent wording and features in claim 11. He agrees with Mr Anic that it is not disclosed in Gilpin. Also undisclosed in Gilpin is claim 12(t), namely, a container claimed in claim 11 wherein said third wall portion is concave.
166 A similar joint position is reached in relation to claim 13(u), namely, a container as claimed in claim 11 wherein said third wall portion is flat or straight.
167 In relation to claim 14(v), namely, a container as claimed in claim 13 wherein said third wall portion is parallel to said side wall, the same position is reached between both experts as it is also in relation to claim 15(w) and claim 16(x), namely and respectively, a container as claimed in claim 13 wherein said third wall portion is angled relative to said side wall and, in the case of claim 16(x), a container as claimed in any one of claims 11-15 wherein said first wall portion is equal to or longer than the said third wall portion.
168 As to claims 17(y), namely, a container as claimed in any of claims 1-16 wherein at least one said side wall further includes a partial ridge along the top or rim of said at least one side wall, and (z) said partial ridge being formed by the fourth wall portion, said fourth wall portion being equivalent to the said first wall portion, Dr Mazur disagrees with Mr Anic. Dr Mazur expresses the view that the wall sheets in Gilpin have a top wall portion which is 'sloping inwardly' but there is no instruction on how this part is constructed and used.
169 Further, in relation to claim 17, this should be considered in conjunction with the preceding claims upon which it is dependent and especially in conjunction with claims 1, 7 and 8. Thus the term 'fourth wall portion being equivalent to said first wall portion' means that only the fourth wall portion should be constructed using formulae and design principles described in claims 1, 7 and 8. This is further confirmed, he says, by the Lynx Complete Specification (at p 5, lines 11-25) which refers to the partial internal ridge at the top of the container. Dr Mazur says Mr Anic interprets that term incorrectly because he reduces the meaning of the term to simply mean that the 'fourth wall portion as with the first wall portion, is angled towards the interior of the container'. Mr Anic appears to take, Dr Mazur concludes, the feature of the partial ridge in claim 17 of the Lynx Complete Specification in isolation and fails to consider the required features of the preceding claims on which it is dependent. Claim 17 is dependent on each of claims 1-16, as such, it needs to be considered in conjunction and not in isolation.
170 Dr Mazur also agrees with Mr Anic in relation to claim 18(aa), namely, that a container as claimed in claim 17 wherein said fourth wall portion is a vehicle length to said first wall portion is not disclosed by Gilpin.
171 As to claim 19(ab), namely, a container as claimed in claims 17-18 wherein said partial ridge further includes a strengthening member along the periphery of said fourth wall and claim 19(ac), namely, said strengthening member forming the rim of the container, Dr Mazur disagrees with Mr Anic that the Gilpin specification mentions the strengthening member. This is again on the usual basis that claim 19 cannot be considered in isolation but rather is dependent on all the preceding claims and, therefore, it is all aspects which must be disclosed in Gilpin for the prior art claim to be made good. In Dr Mazur's opinion, Mr Anic's analysis does not do this. For example, Mr Anic and Dr Mazur agree that the requirements of claim 18 of the Lynx Complete Specification are not disclosed by Gilpin.
172 As to claim 20(ad), namely, a container as claimed in claim 19 wherein the said strengthening member was integrally formed within the said at least one side wall, each of the experts agree that Gilpin does not disclose this.
173 As to claim 21(ae), namely, a container as claimed in any one of the claims 1-9 or any claim 17-20, wherein said base of said container includes at least one ridge extending substantially along the length of said base, Dr Mazur disagrees with Mr Anic's conclusion. He relies upon the words in Gilpin that the subject of the invention is 'also adaptable for use in roofs, floors, hopper doors and side doors for railway cars' (emphasis added). The word 'adaptable' in this context means, according to Dr Mazur, that the arrangement needs to be modified to fit the purpose and as a consequence not all elements of the design shown in figures 1-10 of Gilpin will necessarily be used in the form they are depicted; some of the elements may change shape or disappear from the final design.
174 Dr Mazur notes that there is no picture illustrating any other portion of the railway vehicle structure in Gilpin; only a small portion of the side wall is shown which is not sufficient to depict the entire side wall structure. In addition, no other elements of the wagon are disclosed. The absence of any teaching or instruction or description of graphical illustration in this item of prior art means that it could not be used to devise a procedure for adapting the invention of Gilpin 'for use in floors for railway cars'. This makes Mr Anic's conclusion incorrect. The usual complaint about taking the features in isolation is also repeated.
175 Each of the experts agree that claim 22(af), namely, a container as claimed in claim 21 wherein said at least one ridge along said base is located about wheel or track positions of a support for said container, is not disclosed by Gilpin. As to claim 23(ag), namely, a container substantially as herein before described with reference to figures 2a, 2b, 3a, 3b, 4b, 5 or 8, Dr Mazur disagrees with Mr Anic's conclusion that all of the important features of claim 23 are described in Gilpin. Dr Mazur says that the container shown in the figures of the Lynx Complete Specification is a very different container to that described in Gilpin. The limited figures of wagon walls in Gilpin are not detailed enough to allow comparison to be made with the figures described under claim 23(ag). Gilpin does not teach, describe or disclose and there is no clear directions for making any particular wagon or container which is an embodiment of the Lynx Complete Specification as shown in the figures therein.
176 In relation to claim 24(ah), the experts agree this is not disclosed in Gilpin. As to claim 25(ai), namely, a container as claimed in any preceding claim for use in transportation of bulk material by rail, Dr Mazur disagrees with Mr Anic's conclusion that this is disclosed in Gilpin for the usual reasons. Claim 25 is dependent upon each of the preceding claims. It has been taken in isolation. Instead, it must be considered in conjunction with all of the features of all the respective claims. As to claim 26(aj), namely, a container as claimed in claim 1 and substantially shown in any one of figures 2a, 2b, 3a, 3b, 4b, 5 or 8, Dr Mazur disagrees for the same reasons as expressed in relation to claim 23(ag).
177 On the topic of inventive step, Dr Mazur was given certain assumptions to follow as to the common general knowledge of a person skilled in the art. (He does not, of course, consider that Mr Anic has correctly nor, indeed at all, identified or described the invention as described in the Lynx Complete Specification). Dr Mazur says that as a matter of language he understands the features of the claim in the Lynx Complete Specification in claim 1 to combine and cooperate to produce a new and improved container for transporting bulk material and for rotary or tipping unloading. The features of each of claims 2-26, all of which except for claims 23 and 26 are directly or indirectly dependent on claim 1 of the Lynx Complete Specification combine and cooperate to produce a new and improved wagon for transporting bulk material and for rotary or tipping unloading.
178 In particular, the common general knowledge and state of the art as at 30 March 1998 concerning rotary or tipping unloading of the bulk material containers were facilitated and limited by the F-type coupler and no decoupling. Wagon design as at March 1998 therefore favoured smooth internal sides and pointed away from any internal horizontal ridges. The design and invention of the wagon was not and could not have been achieved as a matter of routine.
179 Lynx's US patent 6,877,440 was granted in 2005 by the United States Patent Office without citing the majority of the prior art initially claimed by Bradken including Gilpin. Despite his experience and knowledge, Dr Mazur deposes that he was unaware of, and his co-director Mr Kilian never mentioned to him, any of the items of Bradken's prior art until they were cited as prior art in the opposition proceedings from which these appeals are brought or for the first time (as with Gilpin) on the appeal.
180 There is no evidence of any wagon ever having been manufactured or used that contains corrugations such as those disclosed in Gilpin. In response to Mr Anic's views on the obviousness of the Lynx Complete Specification, Dr Mazur repeats his contention that the design and invention of the wagon disclosed and claimed in the Lynx Complete Specification met with considerable commercial success and recognition.
181 Dr Mazur says that the Fyansford Quarry Railway article would not have formed part of the common general knowledge of a person skilled in the art in Australia as at March 1998 or March 1999 or October 1999. In relation to the types of rail wagons illustrated in the 1946 Cyclopedia, Dr Mazur agrees with Mr Anic that those wagons were widely used throughout the rail industry in Australia for many decades and the design and construction techniques used in those wagons were in general terms part of the common general knowledge of the skilled rail wagon designer prior to March 1998. However, none of those wagons show any relevant examples of a wagon designed or used for rotary unloading as understood today and as at March 1998 after the introduction of the F-type rotary coupler. Additionally, the Fyansford Quarry Railway article shows the wagons which appear to have external horizontal stiffeners on the side doors. This is not an example of 'geometric stiffening' as Mr Anic insists but a simple piece of hot rolled angle welded to the side door sheet externally. Dr Mazur says that it is a good example of an external horizontal stiffener and not an internal ridge.
182 Thus, Dr Mazur concludes, none of the documents referred to by Mr Anic, even if they were part of the common generally knowledge would have assisted a person skilled in the art and making use of common general knowledge to make the invention described and claimed in the Lynx Complete Specification.
183 He then translates those general observations to the specific claims. He discusses the specific examples Mr Anic draws upon in support of the common general knowledge assertion. In relation to claim 2(j), namely, a container as claimed in claim 1, further including at least one internal ridge between each of said reinforcing members, Dr Mazur specifically disagrees with Mr Anic's conclusion that in order to maximise volumetric capacity gains and stiffness, it would have been obvious to the skilled person before 30 March 1998 that the ridge or geometric profile had to be designed to span across the full length of the side sheet. Dr Mazur's disagreement is based on several reasons. First, claim 2 of the Lynx Complete Specification specifically refers to an 'internal ridge' which was not an obvious choice for design engineers before 30 March 1998 for reasons discussed. Secondly, even when designing side sheet reinforcements using external horizontal stiffeners, design engineers prefer to use them only on those wall panels or sections that have long spans and where they are really required, that is, they do not run along the entire wall. He draws on examples to illustrate that point.
184 Insofar as claims 7 and 8 dealing with the angle of repose are concerned, a point of some significance in these appeals, Dr Mazur disagrees with Mr Anic's conclusion that:
… [I]t is inconceivable that a skilled wagon designer would include an internal feature in a bulk container that would prevent of (sic) otherwise hinder being carried and in particular this will have been obvious in relation to any container design with the features set out in claim 1'.
The reasons for disagreeing have already been canvassed but, specifically, Dr Mazur disagrees with Mr Anic's conclusion that designing in accordance with the angle prescribed by claims 7 and 8 was just a 'simple statement of the well known principle'.
185 Dr Mazur emphasises the angle of repose should not be taken out of context since every type of bulk material has a unique angle or repose when loaded into a wagon. The angles of repose are given for the purposes of showing how to establish the correct geometry of the internal ridges for unloading when using the wagon design according to the Lynx Complete Specification.
186 One of the key factors is that when designed according to those formulae, the Lynx container ensures that the wagons are rotated only to the required angle, thereby minimising dumping cycle time and wear to the wagon components. Once engineering formulae and graphical representations of the solution are available to a skilled rail wagon designer, the designer will usually understand the principle. It 'does not mean that any designer would be able to come up with the idea himself or herself in the first place' especially when the final result, that is, the manufactured wagon is not available. Dr Mazur says this is proved by the need for considerable experimentation in the design of the high capacity wagon by BHP and Comeng from which it was evident that a team of very experienced engineers were unable to overcome the problem.
187 For similar reasons, Dr Mazur disagrees with Mr Anic's conclusions concerning the so-called obviousness of various geometrical and technical arrangements of the first, second and third wall portions of the internal ridge of claim 1 of the Lynx Complete Specification as they appear in claims 9-16. He accepts that when taken in isolation and out of context, those features might be considered obvious and part of common general knowledge but the invention as claimed in claim 1 including the concept of the 'internal ridge' itself was not obvious before 30 March 1998 and with the additional features discussed in the entirety of the claims was not obvious to the skilled person.
188 In relation to claim 17(y), namely, a container as claimed in any one of claims 1-16 wherein at least one said side wall further includes a partial ridge along the top or rim of said at least one side wall and claim 17(z), namely, said partial ridge being formed by a fourth wall portion said fourth wall portion being equivalent to said first wall portion, Dr Mazur disagrees with Mr Anic's observation that partial internal ridges within the meaning of the Lynx Complete Specification have been widely used in bulk containers through the rail industry including in Australia for many decades.
189 Dr Mazur contends that none of the examples relied upon by Mr Anic show a wagon designed and/or used for rotary unloading as it is understood today. Only the inward-facing 'lip' element can be found at the top of some of the hopper-type wagon side walls. This lip is designed for the purpose of strengthening the top portion of the side walls against lateral deformation during operation. When wagons designed with that lip were used in rotary unloading facilities, the lip caused hang up of bulk material and this design was subsequently abandoned. Thereafter, wagons that were unloaded in rotary dumpers were fitted with flat side walls without the inward-facing lip.
190 A wagon with this inward-facing lip can be fully unloaded in a rotary facility only if it is rotated almost 'upside down' but this is technically and commercially impractical because of the longer cycle time, subjecting the car to extra wear and extra rotation being sometimes technically impossible because of the structure of the rotary dumper. The reason that the lip is no longer used is that the technology does not work satisfactorily.
191 In relation to common general knowledge and Gilpin, the point while not specifically made by Dr Mazur was made for Lynx that Bradken has only identified Gilpin after what were clearly very extensive searches to establish either prior art or common general knowledge or both. In fact, insofar as common general knowledge is concerned, there is no evidence that Gilpin was known to Mr Anic (indeed, Mr Anic accepts the position is to the contrary) prior to 30 March 1998 or to any person skilled in the art at that date.
192 Dr Mazur points out that Bradken did not cite or rely upon Gilpin as prior art in the opposition proceedings from which these appeals are brought, nor did it do so until November 2009. It was not cited as a prior reference in the US Patent Office during the examination process or otherwise before the US Patent Office which led to the grant of the Lynx's US patent. Neither Dr Mazur nor Mr Kilian were aware of Gilpin before it was particularised in this proceeding and there is no evidence that it was known to anyone skilled in the art as at 30 March 1998. Even if it were, it would not establish the features of the Lynx Complete Specification which would be obvious to a person skilled in the art in Australia as at March 1998, March 1999 or October 1999.
193 In relation to the Golynx Wagons, which was the subject of the testing by Lynx at BHP's Port Hedland site, Dr Mazur makes the point that the engineering diagram dated 19 October 1998 was prepared by Mr Kilian and Dr Mazur at Lynx's offices in Perth during the period between May 1998 and October 1998 for the manufacture of the prototype. The drawing was prepared for the purpose of that manufacture only and was disclosed to Goninan by Lynx at the time when the prototypes were being manufactured pursuant to confidentiality arrangements between Lynx and Goninan. It was not available in the public domain at that time or at all. The diagram did not disclose or describe the invention disclosed, described and claimed in the Lynx Complete Specification, nor did it contain instructions to put the invention into effect in respect of the following matters:
(a) The drawing does not contain any formulae for the construction of the invention; and
(b) The drawing does not contain sufficient details apart from some general dimensions, for the construction of the invention and, specifically, information about dimensions of internal ridges.
194 The diagram may or may not enable a person skilled in the art to produce an embodiment of the invention disclosed, described and claimed in the Lynx Complete Specification but that would be as a result of trial and error in respect of the following matters:
(a) The shape of the internal ridge; and
(b) The shape of the partial internal ridge.
195 In relation to the Lynx Provisional Specification and the priority date, Dr Mazur disagrees with the evidence of Mr Anic who cannot identify in the Lynx Provisional Specification certain features that appear in the Lynx Complete Specification. The first of those is the internal ridge having a depth greater than the thickness of the said side wall. Dr Mazur says the invention as disclosed in the Lynx Provisional Specification clearly discloses and requires that the internal ridge have a thickness greater than the thickness of the side wall as this is demonstrated by all the figures which accompany it. He also explains that the Lynx Provisional Specification and figures expressly require an internal ridge that is projecting into the interior of the container, with a first wall portion angled in the direction or flow of the material and, further, a second wall portion and a third wall portion and a partial wall portion where the second wall portion is replaced by a rim. Notionally if the ridge is not greater than the thickness of the wall, it would have to be formed as an internal ridge by being recessed or cut into the thickness of the wall, in which case, the initial recess or cut would be the first wall portion but not one in the direction of the flow during unloading of the material to be transported which would be the second wall portion, the portion angled in the direction of flow during unloading of the material to be transported. Dr Mazur says this is quite contrary to the description of the invention in figures 2-8. In any event, practically, it is impossible, considering existing equipment and manufacturing processes. Dr Mazur explains that if the ridge is not greater than the thickness of the wall, the ridge also would not provide adequate stiffness to reinforce the wall in the case of a bulk material container. That is contrary to the description of the invention. Dr Mazur, in any event, points out that when looking at Gilpin, in the absence of any description in Gilpin of any particular geometric proportions between the corrugation depth and the side sheet thickness, Mr Anic was able to conclude based on diagrams alone that the corrugation had a depth greater than the thickness of the side wall. However, when faced with a similar task regarding the features in the Lynx Provisional Specification, he was unable to do so. Dr Mazur observes that the figures in the Lynx Provisional Specification are the same as the figures in the Lynx Complete Specification in all material respects.
196 The experts agree that the additional reinforcement of the internal ridge would be a matter of common general knowledge of a person skilled in the art who would read the Lynx Provisional Specification.
197 As to the fourth wall portion being of equal length as the first wall portion, Dr Mazur says this feature is specifically mentioned several times in the Lynx Provisional Specification. As an example, he refers to the following statement on p 2, lines 15-17:
[A] partial internal ridge may extend along the top edge or rim of the side walls. Such a partial internal ridge may consist of the first wall portion of the internal ridge.
198 This means, he says, that the fourth wall portion may simply be a copy of the first wall portion of the internal ridge and have the same geometry including length.
199 As to the existence or otherwise of the reference to a strengthening member along the periphery of the fourth wall portion being integrally formed within the said wall, he says this is 'clearly shown in figures 2b and 3b of the [Lynx Provisional Specification]'.