The Seltor meeting: September 2015
173 Seltor Gruppen AS (Seltor) is one of the oldest construction firms in Norway. Mr Ramunddal is its Chief Executive Officer.
174 Seltor purchased mastic and mortar products (which are used to stop fire passing through penetrations for pipes and cables in fire resistant walls) from Boss since about 2008 to about 2015. After that time, Seltor engaged subcontractors to complete passive fire protection work on its building projects. The subcontractors are now responsible for buying the products used in undertaking this work.
175 The Seltor meeting took place in September 2015 at Seltor's premises in Norway. The meeting was between Mr Ramunddal and Alex Knutson (from a Seltor subsidiary company), and Mr Prior. Mr Prior and Mr Ramunddal were friends as well as industry colleagues. They met at university in 2002. They had travelled together.
176 Mr Prior's evidence is that he travelled to the United Kingdom, and then to Norway, in the period 14 September to 30 September, 2015. While in the United Kingdom, he visited FSi and obtained further samples of the Pass-It and at least one copy of the Firestopit PDS. His purpose in doing so was to make a presentation of the product to Mr Ramunddal.
177 At the Seltor meeting, Mr Prior gave Mr Ramunddal and Mr Knutson two samples of the Pass-It. In his evidence, he says he called the product the "Fyrebox". He said he did so because that was the name that Boss was using, at the time, for the Pass-It product. In his evidence, Mr Ramunddal referred to the product as the "Fire Box". Mr Prior says that, at the Seltor meeting, he also gave Mr Ramunddal and Mr Knutson a copy of the Firestopit PDS.
178 Mr Prior says that, at the Seltor meeting, he described the function and features of the "Fyrebox" and how it could be installed during the construction of a building. The substance of his evidence is that he disclosed the following matters:
(a) The "Fyrebox" is installed after the position of the walls is marked out.
(b) The "Fyrebox" is installed in a position that straddles the wall.
(c) The wall can be built after the "box goes up". The pipes and cables can be installed at any time, so that "scheduling issues" are solved.
(d) The intumescent material is in white plastic sleeves inside the "Fyrebox".
(e) To install the "Fyrebox", it is first pulled apart and the top part is mounted to the slab with masonry fixings.
(f) The other part of the box then slides into the top part and is attached to the top part using the screws provided or a wing nut (which can be provided).
(g) The services can then be run through the "Fyrebox" or the wall can be built.
(h) If the services are run through the "Fyrebox" before the wall is built, it is possible to remove the lower part to "fit the services through" and then reattach it. It is also possible to install the services after the lower part is attached.
(i) Fire resistant brushes are provided at each end of the "Fyrebox". These will be fire resistant for the first 10 minutes of the fire, after which the intumescent material will have activated. The brushes will be burnt away.
179 Mr Ramunddal's evidence is consistent with Mr Prior's evidence. Mr Ramunddal said that, at the meeting, Mr Prior described the following features of the "Fire Box":
(a) It replaced traditional mortars and mastics to stop fire passing through penetrations for pipes and cables in fire resistant walls.
(b) It had a two-part steel case.
(c) The steel case had "four wings of steel" on the upper part, in which four holes were provided to allow that part to be attached to an upper concrete "deck".
(d) The lower part could be connected to the upper part by either "normal" screws or wing screws.
(e) Brushes are provided to stop dust and other particles getting into the device.
(f) Sachets, containing "expanding fire resistant material" were attached to the inside of the steel frame. This material would expand and close the whole box in the event of a fire.
(g) The "Fire Box" was installed before the rest of the wall is put in place by removing the lower part and fixing the upper part to the concrete deck using the four wings of steel.
(h) The lower part could be attached to the upper part before the pipes and cables are installed or it can be attached after the pipes and cables are installed.
(i) If the lower part is attached to the upper part before the pipes and cables are installed, it is necessary for the plumbers and electricians to pull the pipes and cables through the brushes.
(j) If the lower part is attached to the upper part after the pipes and cables are installed, it is necessary for the plumbers and electricians to line up the pipes and cables with the pre-installed upper part.
(k) Once the lower part is attached to the upper part, the rest of the wall can be built around the completed "Fire Box".
180 Mr Ramunddal said that he read the Firestopit PDS after the meeting to see if the "Fire Box" had the necessary approvals to permit its use in Norway. It did not.
181 Mr Ramunddal said that, after the meeting, he took a "photograph" (digital image) of the "Fire Box" samples. A copy of the digital image is in evidence. It has been tendered as Exhibit 7. It shows two samples of the Pass-It Version 2 with what appears to be a copy of the Firestopit PDS. The screen properties of the digital image show that it was taken on 23 September 2015.
182 Mr Ramunddal kept the two samples. They have been tendered as Exhibit 4. Mr Ramunddal also kept a copy of the Firestopit PDS. This has been tendered as Exhibit 5. The production of that document satisfied me that the document in the digital image is, in fact, the Firestopit PDS.
183 Trafalgar made a wide-ranging attack on the veracity of the evidence given by Mr Prior and by Mr Ramunddal. It did not dispute that Mr Prior visited Mr Ramunddal in Norway in September 2015, but it did dispute that they met for the purpose of the Seltor meeting. Indeed, the upshot of its submissions is that the Seltor meeting did not take place. Acceptance of that proposition involves the wholesale rejection of Mr Prior's and Mr Ramunddal's evidence on this topic.
184 As to Mr Prior's evidence, Trafalgar submitted that I should not accept that Mr Prior visited FSi's offices in the United Kingdom in September 2015 because Mr Prior's evidence of that visit is not corroborated. Trafalgar also submitted that the Firestopit PDS is not a genuine document and that is was not publicly available before February 2016. By this, I take Trafalgar to mean that, as (on its case) the Firestopit PDS is not a genuine document but one fabricated for the purposes of these proceedings, it was not, and could not have been, publicly available before February 2016.
185 Further in this regard, Trafalgar submitted that a brochure in the form of the Firestopit PDS could not have been collected by Mr Prior from FSi in September 2015 because, by that time, FSi had ceased using the Firestopit name, and FSi was using another PDS for the Pass-It, which adopted the FSi name in substitution for the Firestopit name.
186 Further, based on a photograph taken at an event described by Mr Atkinson as "the September 2015 ASFP UK seminar day", which shows part of an FSi display, Trafalgar submitted that FSi was not distributing any version of the Pass-It with dedicated fixing lugs. This is one element of Trafalgar's challenge to Mr Atkinson's evidence that, in the period late 2014 to early 2015, FSi commenced to manufacture the Pass-It Version 1 and the Pass-It Version 2.
187 Therefore, Trafalgar submitted that I should not accept Mr Prior's evidence because it is uncorroborated, and requires me to accept that Mr Prior collected a brochure from FSi "in the wrong company name" and a product that was not available for sale by FSi at the seminar, in the very same month that Mr Prior visited Mr Ramunddal in Norway.
188 This attack on Mr Prior's evidence is unconvincing. First, the fact that Mr Prior took samples of the Pass-It Version 2 and a copy of the Firestopit PDS to the Seltor meeting is corroborated.
189 Secondly, in light of that corroboration, I have no cogent reason to doubt Mr Prior's evidence that he collected the samples and a copy of the Firestopit PDS while visiting FSi at that time.
190 In this connection, I think that Trafalgar makes too much of the photograph taken at the September 2015 ASFP UK seminar day. Mr Atkinson's evidence on this topic was that FSi displayed the Pass-It, including versions with the soffit fixing lugs and butterfly screws, at most - not all - exhibitions at which FSi has presented since at least 2015. He suggested that, as it was FSi's practice to present the latest versions of the Pass-It as such presentations, it is likely that versions with soffit fixing lugs with butterfly screws were presented at that seminar day.
191 Although not objected to, this part of Mr Atkinson's evidence obviously involved speculation on his part. This evidence is hardly definitive of the fact that Pass-It versions with soffit fixing lugs or with the butterfly screws, were presented at the September 2015 ASFP UK seminar day. Those versions may or may not have been presented at that seminar. But, if they were not presented, it simply does not follow that FSi had not commenced to manufacture versions of these products in the period late 2014 to early 2015. Mr Atkinson's unqualified evidence is that the Pass-It Version 1 and the Pass-It Version 2 were manufactured at this time and that samples were supplied to a number of FSi's customers and distributors around the world. Mr Atkinson also produced copies of invoices relating to sales of these versions of the Pass-It in mid to late 2015.
192 Further, and in any event, the photograph itself is hardly definitive of the products that were presented at the September 2015 ASFP UK seminar day. Mr Atkinson's evidence was that the photograph, on which Trafalgar relies, was taken by an unidentified person and subsequently posted on FSi's Twitter page. The photograph shows the FSi stand as partly obscured. I would not rely on the photograph to find that versions of the Pass-It with soffit fixing lugs or with butterfly screws were presented at the seminar. But, similarly, I would not rely on the photograph to find that versions of the Pass-It with soffit fixing lugs or with butterfly screws were not presented at the seminar.
193 Further, even if physical samples of the Pass-It with soffit fixing lugs or with butterfly screws were not displayed, it does not follow that other material about these versions was not available to interested persons attending the seminar or that these versions were not promoted by those manning the stand by reference to the versions of the Pass-It that can be seen in the photograph.
194 Therefore, I do not accept that, based simply on the photograph taken at the September 2015 ASFP UK seminar day, no version of the Pass-It with dedicated fixing lugs was available to Mr Prior when he visited the United Kingdom and Norway in September 2015.
195 As to the Firestopit PDS, I am not persuaded that this document is not genuine. I deal with this question more fully in a later part of these reasons dealing with Boss's challenge to validity based on a lack of innovative step. In order to deal with the particular submissions on the genuineness of the Firestopit PDS which Trafalgar advanced in the context of the Seltor meeting, it is sufficient for me to note the following matters.
196 The documentary evidence shows that there are Pass-It product data sheets that have been published under the Tecnica name and the FSi name, which each bear the Revision Date "01/11/2013" and the Revision Number "01", and under the Firestopit name, which bears the Revision Date "28/03/2014" and the Revision Number "02". There is also a Pass-It product data sheet published under the FSi name, which also has the Revision Date "28/03/2014" and the Revision Number "02". Further, there is a Pass-It product data sheet published under the FSi name, which bears the Revision Date "15/11/2016" and the Revision Number "03".
197 Mr Atkinson's evidence was that numerous versions of product data sheets for the Pass-It were produced over time, each having slightly different content. These documents, and promotional material generally, were, he said, created at FSi in "a fairly ad hoc manner". In cross-examination, Mr Atkinson rejected the proposition that where there are multiple versions of a product data sheet, a later version necessarily replaced an earlier version, so far as public availability was concerned.
198 Mr Atkinson said that FSi did not follow any strict document or version management procedures when creating new versions of documents. He also said that it was common for amendments or corrections to be made to product data sheets, and for the original documents to be overwritten or deleted in the process. He said further that FSi never created any branding or marketing guidelines regarding the use of the FSi brand, or any written instructions to implement the rebranding from "Firestopit" to "FSi".
199 In light of this evidence, I do not accept that a brochure in the form of the Firestopit PDS could not have been collected by Mr Prior from FSi in September 2015.
200 Trafalgar's contention that Mr Ramunddal's evidence is unreliable and should not be accepted is based on the following propositions.
201 First, Trafalgar repeated its submissions that, in September 2015, FSi was not distributing any version of the Pass-It with dedicated fixing lugs, and that the Firestopit PDS is not a genuine document. Trafalgar contended, therefore, that the digital image (Exhibit 7) could not have been taken when Mr Ramunddal says it was.
202 Secondly, the sachets of intumescent material exposed in the photograph bear the date "12/01/15". Trafalgar submitted that none of the other physical exhibits of transits tendered in this proceeding include date stamps in the manner shown in Mr Ramunddal's digital image. Further, Mr Harriman gave evidence that intumescent material is not normally date stamped or provided with a "use by" date or the like. Trafalgar submitted that Mr Atkinson had no direct knowledge of FSi using date stamping in that way. Trafalgar submitted that, in these circumstances, the Court could have no confidence that Mr Ramunddal's digital image is genuine.
203 Thirdly, Trafalgar contended that the Seltor meeting is not corroborated by any contemporaneous documents relating to the meeting, apart from the digital image. Further in this regard, Trafalgar pointed to the fact that Boss has not called Mr Knutson (who is also said to have attended the Seltor meeting) to give evidence. Further still, Trafalgar pointed to the fact that, in oral evidence, Mr Ramunddal said that he took the image to send a copy to his regional manager in South Norway. Trafalgar said that Mr Ramunddal did not refer to this fact in his affidavit or produce any email sending the image. Trafalgar submitted that sending the image to a colleague was "at odds" with Mr Ramunddal's later view that the "Fire Box" could not be used in Norway, because it did not have the necessary approvals.
204 Fourthly, Trafalgar contended that the digital image taken by Mr Ramunddal is "staged" because the products are displayed to show the date shown on the intumescent material. Further, the camera used to take the image was capable of having its date setting changed. Trafalgar queried why the file properties show that the image was taken at 12.10 am on 23 September 2015 if, as Mr Ramunddal says, he took the image "shortly after the meeting".
205 In addition to these propositions, Trafalgar submitted that, in his affidavit, Mr Ramunddal recited "very detailed oral instructions" which he said were provided by Mr Prior at the Seltor meeting. Trafalgar submitted that these instructions are not corroborated by notes. It submitted that it is inherently unlikely that detailed instructions were provided or that either Mr Prior or Mr Ramunddal could properly remember those instructions.
206 I reject Trafalgar's first proposition, for the reasons I have already given.
207 As to Trafalgar's second proposition, Mr Atkinson did not agree with the suggestion, put to him in cross-examination, that FSi did not deploy date stamping for its intumescent materials or any of its Pass-It devices. He said that specific customers would have their own packing specifications, but it was not his remit to understand these things.
208 Further, another example of intumescent materials in a Pass-It being date-stamped is in evidence. When challenged with the proposition that there was no regulation in the United Kingdom that required FSi to date-stamp its sachets of intumescent material, Mr Atkinson explained that there was another reason for date-stamping - namely, to link the material to a batch sheet as part of FSi's factory control processes and management system for audit purposes.
209 Mr Harriman's evidence that intumescent materials are not normally date stamped, or provided with a "use by" date or the like, does not mean that such materials never bear a date stamp or the like. The evidence simply does not disclose why the sachets of intumescent material shown in Mr Ramunddal's digital image bear the particular labels shown, or who placed the labels on those sachets. In closing submissions, Trafalgar did not contend that Mr Prior or Mr Ramunddal placed the labels on those products.
210 As to Trafalgar's third proposition, I have Mr Prior's and Mr Ramunddal's evidence that the Seltor meeting did take place in September 2015. Mr Prior's travel itinerary is in evidence and shows him arriving in the United Kingdom on 16 September 2015 and departing Norway on 28 September 2015. Mr Prior's flight tickets show him arriving in Oslo on 18 September 2015. I have no reason to doubt that Mr Prior and Mr Ramunddal met in September 2015 or, more importantly, that they met in the circumstances given in their evidence. I do not consider it necessary for Boss to have also called Mr Knutson to give evidence on that topic. There was no reason that required it to do so.
211 Mr Ramunddal's evidence that he took the digital image to send to his regional manager in South Norway was elicited through cross-examination. There is no reason why Mr Ramunddal should have referred, in his evidence in chief, to his particular reason for taking the image. The relevant and important fact is that he took it. The evidence does not reveal whether Mr Ramunddal did, in fact, send the image to his regional manager. Even so, contrary to Trafalgar's submission, I do not consider that taking the image, for that purpose, was "at odds" with Mr Ramunddal's later realisation that the product he had been shown by Mr Prior did not (according to Mr Ramunddal's understanding) have approval for use in Norway. That realisation certainly does not mean that the product was not of interest to Seltor.
212 As to the fourth proposition, I am not persuaded that the digital image taken by Mr Ramunddal was "staged" in the sense suggested by Trafalgar. When asked in cross-examination, Mr Ramunddal could not remember who placed the items as they are shown in the image. It was in the course of this line of questioning that it emerged that Mr Ramunddal had taken the image to send to his regional manager in South Norway. Mr Ramunddal said that it was quite a unique product and he wanted his manager's opinion about it. It is unsurprising that, in those circumstances, Mr Ramunddal would take an image showing one transit in a complete state and one transit in a separated state. If the image was intended to reveal features of the Pass-It device, why would it not be "staged" to reveal those features?
213 As to the taking of the image, Mr Ramunddal said that he used a company camera. The camera was kept in the front office of Seltor's premises, with three or four other cameras. These cameras were used in Seltor's business for "quality measurement tasks in the construction project". It was for this reason that the date setting on the cameras was "quite important".
214 In cross-examination, Mr Ramunddal accepted that the date and time settings on the camera could be changed. He accepted that he did not know whether, at some point after the camera had been purchased, someone may have altered its date and time information. However, it was not put to Mr Ramunddal that he (or someone at his direction or with his knowledge) altered the date and time information on the camera or, more importantly, that he (or someone at his direction or with his knowledge) altered the date and time information on the camera for the purpose of recording a false date when the digital image was taken.
215 Considered in isolation, the time recorded for the taking of the image - 12:10 AM - seems unusual. There could be any number of explanations for that time being recorded. For one thing, the image may have been taken at that time. But if, in fact, the image was not taken at that time, there are innocent explanations for the time setting. For instance, the setting of the AM/PM function of the 12-hour time clock might have been selected incorrectly at some time in the past, or simply ignored, well prior to the image being taken. Moreover, if the date and time settings of the camera had been tampered with for the purposes of taking the image, it seems hardly likely that, consistently with some fraudulent enterprise, a time setting would have been chosen that might raise suspicion and expose that enterprise.
216 Mr Ramunddal was not questioned about any of these matters. And, as I have said, it was not put to him that he altered the date and time information on the camera for the purpose of taking the image.
217 Trafalgar's challenge to the veracity of the evidence given by Mr Prior and Mr Ramunddal in relation to the Seltor meeting really amounts to an allegation of fabrication that involves both Mr Prior and Mr Ramunddal. Trafalgar's submissions were laced with the suggestion that, because of their relationship, Mr Ramunddal was a witness who would be prepared to conspire with Mr Prior to give false evidence at Mr Prior's behest. I reject that suggestion. I have no reason not to accept Mr Ramunddal as an honest witness.
218 To summarise, according to Trafalgar the Firestopit PDS shown in the digital image is not a genuine document and, as at September 2015, the products shown in the image did not exist. Further, Trafalgar contended that the image was staged and that some unknown person purposely altered the date setting on the camera to record an event that did not take place.
219 On the evidence before me, this scenario is fantastical. It is based on theories which are not established by the evidence and which, taken as a whole, lack coherence. It also seems to envelope Mr Atkinson's evidence concerning the creation of the Firestopit PDS and the date when the Pass-It Version 2 was first manufactured by FSi. However, I also accept Mr Atkinson as an honest witness. As explained in the next section of the reasons, I accept that the Pass-It Version 1 and the Pass-It Version 2 commenced to be manufactured by FSi in the period late 2014 to early 2015. I do not accept the likelihood that Mr Atkinson was mistaken about that matter. And, as I have said, I am not persuaded that the Firestopit PDS is not a genuine document. Indeed, it was not even put to Mr Ramunddal that he was not given a copy of the Firestopit PDS at the Seltor meeting.
220 I am satisfied, on balance, that the Seltor meeting took place, substantially as described by Mr Prior and Mr Ramunddal. I am satisfied, on balance, that Mr Prior brought two samples of the Pass-It Version 2 to the meeting and a copy of the Firestopit PDS. I am satisfied, on balance, that the information that Mr Ramunddal says he was given by Mr Prior with respect to the use and method of installing the "Fire Box" was, in fact, given.
221 In reaching this latter finding, I bear in mind the caution expressed in the cases about the care that must be exercised in considering evidence of prior acts based on recollection. I also bear in mind Trafalgar's submission that, as recorded by Mr Ramunddal, Mr Prior's instructions were "detailed" and not corroborated by notes. However, it is clear that Mr Ramunddal was not purporting to give a verbatim account of his meeting. He was intending to convey the substance and effect of information he had been given by Mr Prior. I do not accept that what he was told at the Seltor meeting with respect to the use and method of installing the "Fire Box" was beyond his accurate recollection, notwithstanding the passage of time. As Mr Ramunddal made clear in his oral evidence, as an engineer he was impressed by the product. He said that that is why he remembered it so well. It was, in his words, a game changer for the industry, especially for Seltor, even though, as events turned out, Seltor could not use it because it did not have Norwegian approvals. Also, unlike other cases dealing with evidence of prior acts, I have the physical evidence before me of the Pass-It devices that were presented to Mr Ramunddal at the Seltor meeting, as well as the digital image he took.
222 Mr Ramunddal was challenged in cross-examination on the preparation of his affidavit. I am satisfied that it contains his recollection, expressed in words of his choosing. He emphatically rejected the contrary suggestion. In so doing, he gave, as an example, the fact that he had difficulty in explaining, in English, the use of wing screws. He said:
… I had to search for those words, to explain the alternative way to - to mount it. So this is my words.
223 I am satisfied that, at the Seltor meeting, Mr Prior disclosed all the features of the method claimed in claim 1 of the patent, with reference to the Pass-It Version 2. I am also satisfied that, at the Seltor meeting, Mr Prior disclosed all the additional features of the method claimed in claims 2 and 4.
224 Trafalgar submitted that the evidence does not reveal that the Pass-It samples shown to Mr Ramunddal had the additional features of claim 3, where the first portion of the firestopping device is a planar panel defining a pair of opposite sides each having a side wall extending therefrom.
225 This submission is based on expert evidence given through the Joint Report prepared by Mr Hunter and Mr Page, which was signed by them on 16 April 2020 (Joint Report Part B).
226 Mr Page said that the device depicted in Mr Ramunddal's digital image has a planar panel (which forms the top of the device), and two short flanges. In his view, claim 3 is not met unless the short flanges are considered to be "side walls".
227 Mr Page's view was based on his understanding that the term "side wall" means "something that extends more or less the full height of the device" and "should act as a wall (i.e. to contain something), not just to be an attachment point". He acknowledged, however, that this is not how the term "side wall" is used in the specification:
The Patent describes similar short flanges as 'sidewalls' (see page 4, final paragraph, referring to items 10 and 11 which can be seen in figures 5 and 6). If these are 'side walls' then the flanges in … the Pass-It Box Version 2 (which are of a similar scale and have the same function) are also 'side walls'. However, in my opinion, neither items 10 and 11 in the Patent, nor the flanges in … the Pass-It Box Version 2 can properly be described as 'side walls'.
228 In the Joint Report, Mr Hunter expressed his agreement with Mr Page's comments.
229 I do not accept Mr Page's and Mr Hunter's opinions that, in the Pass-It Version 2, the planar panel of the first portion of the device does not have, on each opposite side of the panel, a "side wall" extending therefrom.
230 The claims must be read in the context of the teaching of the specification, and construed accordingly. It is clear that, in using the expression "side wall", the specification is intending that term to encompass the structure and geometry of the short flanges to which Mr Page and Mr Hunter refer, however else the expression "side wall" might be understood in other, and different, contexts and settings.
231 As the specification makes clear, these elements function, in part, as attachment points for the side walls of the second portion, with the second portion forming the base and "the majority of the side walls of the firestopping device": specification pages 4 - 5; see [41] - [48] above. The fact that the flanges function as attachment points does not make them any less "side walls" for the purposes of the specification.
232 I am satisfied, therefore, that, at the Seltor meeting, the additional features of the method claimed in claim 3 were disclosed.
233 Boss submitted that, at the Seltor meeting, the additional feature of the method claimed in claim 5 was disclosed - the step of marking a line on the external object so as to depict the proposed centre line of the barrier. Boss relied on the opinions expressed by Mr Page and Mr Hunter on this matter in Joint Report Part B.
234 Trafalgar's written closing submissions did not address this claim specifically. However, Trafalgar did dispute that Mr Prior gave detailed instructions about the use of the Pass-It Version 2, as Mr Prior and Mr Ramunddal had described. In this context, Trafalgar raised the unlikelihood that Mr Prior gave any instruction about the marking of a centre line.
235 I do not accept that the additional step of claim 5 was disclosed at the Seltor meeting - at least with the sufficient clarity to amount to an anticipation. Importantly, Mr Ramunddal's recollection does not include any statement being made that reflects this step. The highest that Mr Prior's evidence rises in this regard is that he disclosed that, after the walls are "marked out", the device is installed in a position that would straddle the wall. Even if I were to accept this evidence, it falls short of Mr Prior disclosing the step of marking the centre line of the "barrier", and it is not a disclosure of marking such a line on the external object to which the firestopping device is to be attached.
236 To the extent that Mr Page and Mr Hunter express the contrary view in Joint Report Part B, I do not accept their opinion. I put the matter this way because, even though, in their claim chart, they indicated (by signifying "yes") their acceptance that the additional features of claim 5 were disclosed at the Seltor meeting, their conclusion was qualified, and also appears to involve legal judgments on their part, which I do not accept.
237 In this connection, Mr Page drew attention to the fact that, although there is mention in Mr Prior's evidence about marking out walls, his instructions to Mr Ramunddal did not specify where the location of the walls was to be marked - that is, on the floor or on the soffit. In this connection, I also note that some of the evidence reveals the practice of marking wall locations on the floor.
238 Mr Page then drew attention to his own affidavit evidence where he discussed how he has installed a Pass-It Version 1. He also discussed his observation of how, consistently with his own method, other installers have installed such a device - which he described as "one way of doing this" (my emphasis). This way involved using a rotary laser to project a vertical plane (including onto a soffit) from a centre line marked on the floor.
239 There is no challenge to this evidence. I accept that, if this method were to be employed, it would satisfy the additional features of the method claimed in claim 5. I am not persuaded, however, that, at the Seltor meeting, Mr Prior made any disclosure about marking a centre line on the soffit (or on any other external object to which the transit is to be fixed). Further, I am not persuaded that the inevitable result of following the instructions given by Mr Prior at the Seltor meeting would be the marking of such a line.
240 I am not satisfied, therefore, that, at the Seltor meeting, Mr Prior disclosed, with sufficient clarity, the additional features of the method claimed in claim 5.
241 For these reasons, I am satisfied that claims 1, 2, 3, and 4 of the patent are invalid because, at the priority date, the invention, as claimed in each of those claims, was not novel.