N & E Bowder Pty Ltd v Australian Keg Company Pty Ltd

5 Photographs of the allegedly infringing product were annexed to the primary judge's reasons and are also annexed to these reasons. 6 The primary judge concluded that the appellants' (Bowder) product included integers 10 and 11 and infringed claim 1. Bowder contends that his Honour erred in finding each integer so included.

Preliminary observations as to the claimed storage bin 7 The claimed storage bin comprises an upper section being a storage chamber and a lower section which is a base below the storage chamber. 8 The upper section has a top portion, a side portion and a bottom portion. The side portion is configured for structural rigidity. The bottom portion is adapted to be received by the base. The bottom portion incorporates an outlet for selective discharge of feed material from the storage chamber. The base is adapted to provide access to the outlet through the exterior side wall of the base.

Integer 10: Does the bottom portion incorporate an outlet? 9 The primary judge summarised the proposition advanced by Bowder (at [23]): The primary question here is the meaning of the words "the bottom portion incorporating an outlet for selective discharge", in particular as to the location of the outlet. The applicants' case seems to be that the outlet must be located on the bottom portion of the upper section, which portion is adapted to be received by the base. The applicants also submit that any strengthening features are only to be located in the side portion of the upper section, so that any wall having such features must be part of the side portion. 10 His Honour rejected the proposition at [24], saying that "it is no doubt true that the sides of the side portion of the upper section must provide structural rigidity. It does not follow that any wall having that quality must be part of the side portion". Further, at [26], his Honour said that "[i]t is irrelevant that the lower part of the front wall [of the bottom portion] also has a strengthening feature" and that "[i]ts presence does not disqualify that part of the container which is received by the base from being the bottom portion as contemplated in claim 1". 11 We agree. Claim 1 provides that the side portion be configured for structural rigidity. The bottom portion, being the bottom portion of the upper section, is adapted to be received by the base and incorporates an outlet. There is no limitation in the claim precluding the bottom portion from also being configured for structural rigidity. 12 The fact that the portion of the Bowder product adapted to be received by the base also has structural rigidity does not avoid infringement. It does not, as Bowder submits, turn that portion into a side portion. The part of the Bowder product that is adapted to be received by the base and incorporates an outlet for selective discharge for feed material from the storage chamber is located at the bottom of the upper section defining the storage chamber and is the bottom portion of claim 1. As the primary judge observed at [26], identification of the dividing line between the side portion and the bottom portion poses difficulties but the claim does contemplate a distinction between them. It is not in dispute that the Bowder product does contain a side portion as claimed, configured for structural rigidity. The lower part of the container, the bottom portion, complies with the claimed bottom portion. 13 Bowder does not avoid infringement on the basis of an absence of integer 10.

Integer 11: is the base adapted to provide access to the outlet through the exterior side wall of the base? 14 The specification describes preferred embodiments of the invention in the following terms: Preferably, the upper and lower sections are formed separately of each other and the upper section is adapted to rest on the lower section. Preferably, the bottom portion comprises a downwardly sloping section so configured that when the bottom portion is received by the base the outlet is disposed closer to said exterior side wall than to an opposed side wall of the base. Preferably, the outlet is accommodated within the confines of the base and the control means is accessible for operation thereof through the recess. Preferably, the base comprises a recess opening onto the exterior side wall of the base, the outlet communicating with the recess at a location adjacent the exterior side wall whereby the outlet is accessible through the recess for discharge of feed material from the storage chamber. 15 These are reflected in claims 3 and 4, which, together with claims 2 and 5, are dependent on claim 1 and are also said to have been infringed. 16 The outlet on the bottom portion of the Bowder product is directly accessed through the recess in the base. Bowder submits that the requirement of claim 1 is that the base is adapted to provide access to the outlet through the exterior side wall of the base and that this requirement is not met. 17 The primary judge's reasoning in respect of integer 11, at [27]-[30], can be summarised as follows: It is accepted that claim 1 describes the base as having a wall which surrounds the bottom portion of the upper section. The base must be adapted in order to provide access to the outlet which is located in the bottom portion. "Through" may be defined to mean "From one end, side or surface to the other or opposite end, side or surface (of a body…) by passing within it; usually implying in to, at one end, side, etc and out of at the other". The requirement that access be "through the wall" does not impose a limit on the method to be adopted and includes any direct means for passing from one side to another. The V-shaped aperture in the wall provides direct access from one side of the wall to the other. 18 Bowder submits that direct access is not "through" the exterior wall of the base. It also submits that the outlet is located "above" the exterior wall of the base, rather than through it and that there is no access from one side of the wall to the other. 19 Bowder's contention seems to be based on the proposition that access "through" the wall must occur through an aperture and that the aperture must be enclosed, such as occurs in a tunnel or a hole. 20 We do not accept that contention. 21 Access to the outlet in the Bowder product is at a point below the top of the side walls of the base, within the recess that has been cut into the exterior of the side wall of the base to receive the upper section. Access is thereby through the exterior wall of the base. If, notionally, the top of each of the points on the arms of the V were joined by, say, a thin piece of plastic, this would unarguably provide a hole in the exterior side wall. The base is no less adapted to provide access to the outlet through the exterior side wall because the recess cut into that wall is not enclosed. 22 Further, access to the outlet is not above the exterior side wall. It is bounded by the exterior side walls on three sides. The outlet sits within the V-shaped aperture through which access is provided. Also, the edges of the V-shaped aperture at the front of the base have flanges or rims that extend over and receive corresponding edges of the bottom portion of the storage chamber. These flanges or rims hold the storage chamber in place. Therefore, to access even the outermost point of the outlet, it is necessary to pass from one side of the rims or flanges to the other. 23 The Bowder product contains integer 11. 24 The grounds of appeal are all directed to the primary judge's conclusion as to the presence of integers 10 and 11 in the Bowder product. We see no error in his Honour's conclusion, that is, that the Bowder product infringes claim 1 and the dependent claims (claims 2-5) of the Patent. 25 The appeal should be dismissed with costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Bennett, Greenwood and Mortimer.