Re Allsop Inc and Communications Power Incorporated (Aust) Pty Limited v Bintang Limited; Peter Robert Stanton; Goldring Audio Industries Pty Limited and Clurat Pty Limited [1989] FCA 297; 15 IPR 686

Re Allsop Inc and Communications Power Incorporated (Aust) Pty Limited v Bintang Limited; Peter Robert Stanton; Goldring Audio Industries Pty Limited and Clurat Pty Limited [1989] FCA 297; 15 IPR 686 - FCA 1989 case summary — Zoe

[29]

11. The debate about this issue makes it necessary to examine the construction and working of the Flexibar. That is most easily done by reference to the illustrations attached to these reasons, which we have drawn from photo-copies of parts of an exhibit. The first illustration shows a view of the working parts of the Flexibar as they lie flat, enclosed in their clear plastic container, which is of the size and shape of a cassette. At the top can be seen three cleaning pads, the centre one for the playing head of the cassette player and the other two for the capstan and pinch roller of an auto-reverse cassette player (in other models there will only be one capstan and pinch roller on one side, though in some models there may be an erase head to be cleaned on the opposite side). The cleaning pads are attached to a roughly T-shaped piece of plastic (referred to as a "T-bar") so constructed, with a crescent-shaped piece at the intersection of the stem and the arms of the T, as to provide some flexibility in the arms. The T-bar bearing the cleaning pads is constrained, at a number of points, so that it can move only to a limited degree. At the base of the stem of the T, where it overlies the intersection of two cogged wheels, there is on one side a pin (invisible in the first illustration because concealed by the T-bar itself) which is inserted into a groove in the wheel on that side. When the wheel turns, the pin follows the groove, describing an eccentric circle in relation to the wheel. This arrangement of the wheel is known as a cam, and the pin as a cam follower. The pin can be seen in the second illustration, which shows the T-bar removed from the cassette and turned over. The pin is shown as a circle in the bottom right hand corner of the second illustration. The other supports of the T-bar are, first, four pins (shown in the first illustration as heavy dots), one above and one below each arm of the T, which are affixed to the case of the cassette, and secondly, two sloping "ramps", also affixed to the casing of the cassette, at the extremity of either arm.

[37]

16. In general, an understanding of the meanings of the words "lever", "pivotally", "mounted" and "reciprocating", as ordinary English words, may be assumed. However, as these words are clearly used in the specification in their mechanical sense, so far as that sense differs from common usage, it is desirable to set out the appropriate dictionary definitions, which have been taken from the Shorter Oxford English Dictionary, 3rd edition, 1980 reprint. The mechanical meaning of lever is "name for a rigid structure of any shape (normally a straight bar) fixed at one point called the fulcrum, and acted on at two other points by two forces, tending to cause it to rotate about the fulcrum". The dictionary adds: "The force to be resisted by the use of the lever is called the weight, and the force applied for this purpose the power. Levers are said to be of the first, second, or third kind or order according as the fulcrum, the weight, or the power is midmost of the three." "Pivotally" means "as on a pivot", and "pivot" relevantly means "a short shaft or pin, forming the fulcrum and centre on which something turns or oscillates; a pintle, gudgeon." Both the last two words evoke pins on which things turn, as in the case of the pintle in a hinge, or the gudgeon of an axle. (In the 1989 2nd ed. of The Oxford English Dictionary, vol. XIII, "pivot" is relevantly defined as: "A short shaft or pin, usually of metal and pointed, forming the fulcrum and centre on which something turns or oscillates; as the pin of a hinge, the end of an axle or spindle, or the arbor on which the hands of a timepiece turn; a pintle, gudgeon".) The relevant meaning of "mounted" is "set up for use, as cannon". Cf. Martin Engineering Co. v. Matflo Engineering Pty Ltd (1987) 17 FCR 132 at 139. The mechanical meaning of "reciprocate" is "to move backwards and forwards", from which "reciprocating" has the meaning "that reciprocates; specifically in Mechanics (of machines etc.) having a reciprocating part or parts".

[45]

23. Yet another difficulty with the appellants' submission, that the T-bar may be seen as a lever arm within the meaning of claim one, is that claim one describes "means at one end of the lever arm to receive cleaning means to engage a surface of the playing head". If the T-bar is a lever arm, the cleaning means to engage the playing head can only be found at the intersection of the two parts forming the T-bar, which cannot be described as "at one end". To treat the T-bar as a lever pivoting at the point of contact with the playing head upon force being applied by the cam follower pin, the load being at one of the guide pins, requires the intersection of the two parts of the T to be between the load and the point of application of force; it is at an intermediate point, or as it is put in the Oxford dictionary (ubi cit. supra) "midmost of the three", not at an end. An alternative version of the appellants' argument, which was pressed at the hearing below but only faintly upon the appeal, was that the T-bar could be regarded as a lever turning upon the guide pin as a fulcrum. This would place the load at the playing head, that is, between the application of force by the cam follower pin and the fulcrum at the guide pin. It is impossible to reconcile either formulation of the appellants' case with the language of the specification which places the cleaning means "at one end of the lever arm". The language of the specification is consistent with the view that the patent concerns a lever mechanism, pivoting (at a point between the cam and the playing head) so that the cleaning means at the end of the lever arm can describe an arc across the face of the playing head in order to clean it. Specifically as regards the alternative version of the argument, the highly qualified expert accepted by the trial judge, Prof. Morton, gave unequivocal evidence that the operation of the Flexibar does not involve rotation about a guide pin as a fulcrum. What it does involve is linear sliding against the pin.

[56]

"The present invention relates to cassettes

containing devices for cleaning the driving and/or

recording elements of tape recorders.

The following have already been proposed:

- loading of these cassettes with a short length of

slightly abrasive cleaning tape, but, since this tape

has a thickness much greater than that of a normal

recording and/or playback tape, it involves the risks

of damaging or putting out of adjustment some of the

tape recorder members foreseen (sic) for guiding,

driving and recording/playing back the tape:

- cassettes containing a device actuated by one of the

take-up, take-off spool shafts (German Utility Model

6,928,925 of July 22nd, 1969 in the name of BECKER

AUTORADIOWERK GmbH), but since cassettes of this type

have only one working side (take-up spool) their

great disadvantages are:

- that they cannot be used on 'bi-directional' units.

In fact, these are generally equipped on each of the

spools with an automatic stop device, such as

described in the applicant's Belgian Patent No.

672,331 of November 16th, 1965, and since, in a

cassette of this type, the feeding spool is not

driven, the automatic stop device associated with it

immediately monitors either the stopping of the unit

or the ejection of the cassette,

- that they require close attention by users when

introduced into one-way units, since such a cassette

must always be positioned in such a way that the

spool operating the cleaning device is placed on the

winding spool spindle. In fact, if this rule is not

observed, no cleaning takes place and the cassette is

immediately ejected if the unit is equipped with a

mechanical stop, or the unit is further switched off

if it is equipped with an automatic stop device of

the type described in the applicant's Belgian Patent

mentioned above. Since most users are unaware of

this kind of technical problem, they will conclude

from this that their cleaning cassette is completely

out of order.

The object of the present invention is, therefore,

to overcome these disadvantages and to suggest a device

which is simple, unexpensive (sic) and effective,

whatever the type of cassette player it is used on and

type of automatic stop same is equipped with."

At a glance

Court

Decision date

Before

Source

Judgment (82 paragraphs)

Re Allsop Inc and Communications Power Incorporated (Aust) Pty Limited v Bintang Limited; Peter Robert Stanton; Goldring Audio Industries Pty Limited and Clurat Pty Limited [1989] FCA 297; 15 IPR 686 (8 August 1989)

Parties

Legislation Cited (4)

Cases Cited (10)