The common general knowledge - content
50 Having regard to the submissions of the parties and the evidence, I make the following findings about the common general knowledge as at the priority date of the 171 application.
51 The concept of "grade" as meaning the concentration in the dry mass of a mineral or element of interest was common general knowledge.
52 The concept of "wet processing techniques" as unit operations in mineral processing that require the addition of water or an aqueous environment was common general knowledge.
53 The concept of "dry processing techniques" as unit operations in mineral processing that do not require the addition of water or an aqueous environment and often require the removal of water was common general knowledge.
54 It was common general knowledge that wet processing techniques were far more common in mineral processing than dry processing techniques because the conditions under which most minerals can be separated from other minerals are improved by the presence of water.
55 It was common general knowledge that dry processing techniques involved disadvantages, including low throughput, in minerals processing.
56 The concept of primary crushed ore as the product of the first crusher in mineral processing was common general knowledge.
57 The concept of pre-concentration, meaning a mineral processing step occurring as early as possible in which waste is removed from ore in preparation for downstream conventional mineral processing steps, was common general knowledge but the use of pre-concentration techniques in mineral processing outside of niche areas was not common general knowledge. Accordingly, a typical flow sheet strategy for mineral processing would not have included a pre-concentration step.
58 The experts all agreed that the concept of bulk sorting was known but not well known in the mineral processing industry and was not widely used in that industry. On this basis, I am not satisfied that the concept of bulk sorting in mineral processing formed part of the common general knowledge of the skilled addressee of the 171 application. I do not accept the respondent's submissions to the contrary for the following reasons.
59 The common general knowledge of the skilled addressee of the 171 application is the knowledge that had been assimilated before the priority date by the bulk of those in the field which is the processing of ore. The fact that the experts in this case all knew of the concept of bulk sorting before the priority date does not establish that it was part of the common general knowledge in circumstances where the experts also all gave evidence that the concept was not well known in the industry and was not widely used. I do not accept that the experts, in saying that the concept was not well known in the industry, were engaging in nothing more than hearsay and speculation. From their expertise and experience they were in a position to give opinions about the extent to which knowledge of the concept of bulk sorting had been assimilated in the ore processing industry. They were also in a position to know that their knowledge and expertise exceeded that of mineral processing engineers generally due to their particular expertise and experiences. The fact that it was common ground between the experts that the mineral processing industry is conservative, with the result that it may take many years for new ideas to be implemented, does not undermine the effect of the evidence of the experts that the concept of bulk sorting had not been assimilated so as to form part of the stock-in-trade of mineral processing engineers involved in the processing of ore. As such, I do not accept the respondent's submission that:
…where each of the witnesses (as a skilled addressee) gave evidence that they knew a particular fact, and that that fact was known, and appeared in texts which were widely read (if not by everyone) it should be found on the balance of probabilities that the relevant fact is common general knowledge.
60 Further, I do not accept that it was part of the common general knowledge that the concept of whole stream diversion (meaning the directing of a pre-determined stream of ore to a different destination) was a form of bulk sorting. I am not satisfied on the evidence that the concept of whole stream diversion itself formed part of the common general knowledge. The fact that all experts were aware of examples of it and it had been mentioned in a number of documents does not mean that the concept had been assimilated into the knowledge of the bulk of mineral processing engineers involved in ore processing.
61 In particular, the respondent has not proved that the work of the Aachen University research group and the AMIRA P902 report formed part of the common general knowledge. Dr Morrison's evidence that the work relating to the AMIRA P902 report was supported by a number of mining companies (including major Australian mining companies) and was available for purchase does not mean that the information in the report had been assimilated into the stock of knowledge of the notional mineral processing engineer involved in the processing of ore in Australia. Dr Bamber did not accept that "…a great number of people in the mining industry would have been aware, especially if they were in Australia, about the AMIRA Project…". The AMIRA P902 report contains a statement to the effect that it was for internal use only and disclosure to others was prohibited. Dr Morrison explained that the report would have been confidential for a limited period only and publicly available about 18 months after it was prepared (and thus before the priority date). However, as Dr Bamber said, to purchase the report a person would have to be aware of its existence which he was not before the priority date. While Dr Morrison described the report as "…very well known" he was heavily involved in its preparation whereas Dr Bamber was not. In my view, Dr Morrison's experience cannot be attributed to the notional skilled addressee and Dr Bamber's experience is more representative of the state of knowledge of that notional construct than that of Dr Morrison. It may be accepted that Dr Bamber is not located in Australia, but he is an expert in a narrow field where knowledge is an international commodity, so his evidence cannot be discounted. If the AMIRA P902 report had become part of the common general knowledge of persons in this field then I would have expected Dr Bamber to have become aware of it by one means or another. I infer that Dr Morrison's knowledge of it was based on his personal involvement with the project, an involvement which I do not consider can be attributed to the skilled addressee. Having regard to the evidence about the AMIRA P902 report as a whole, the respondent has not persuaded me that the report's existence or the content of it formed part of the common general knowledge of the skilled addressee of the 171 application at the priority date.
62 Nor do I accept that the respondents have proved that the Scantech PGNAA (prompt gamma neutron activation analysis) technology formed part of the common general knowledge. It may be accepted that Kurth 2007 and Kurth 2008 (which will be referred to in more detail below) were presentations by Henry Kurth on behalf of Scantech at mining industry conferences in Australia for the purpose of promoting the technology and that both Dr Morrison and Dr Miljak were aware of the Scantech technology. This does not mean, however, that the Scantech technology and its potential applications had been assimilated into the common general knowledge of the skilled addressee of the 171 application at the priority date. As the appellant noted, the Kurth documents are basically marketing. It must also be taken into account that, as noted above, it was common ground between the experts that the mining industry is conservative and slow to adopt new technologies. Given this, there is no reason to infer that knowledge of the Scantech technology and its potential applications had been absorbed into the stock-in-trade knowledge of the notional mineral processing engineer as at the priority date.
63 The fact that there were, as Dr Miljak put it, known technical markers to bulk sorting in the literature does not mean that a technique used in niche areas only had become part of the common general knowledge of the relevant skilled addressee. Nor has the respondent proved that the Cutmore and Eberhardt article, which Dr Miljak referred to as "…a very major marker for my group at CSIRO in understanding what was out there in terms of bulk sorting", was part of the common general knowledge of the skilled addressee. Dr Bamber, who, as I have said, is (and was) an expert in a narrow field, remained unaware of Cutmore and Eberhardt but agreed with the views expressed therein that "…to date, industry applications have been limited by a lack of suitable sensors to a few niche processing areas such as for diamonds, magnesite, talc and uranium ores" and that there were "…entrenched misconceptions in regard to the economic viability of sorting". This evidence suggests that even if bulk sorting as a concept did form part of the common general knowledge, the content of that knowledge would have been that the technique was suitable for niche applications but had not been proven to be suitable otherwise. This was for a number of reasons which included a lack of suitable sensors, despite what was described by Cutmore and Eberhardt as a renewal of interest in sorting between 1992 and 2002. This is a view with which Dr Bamber disagreed based on his experience. Dr Bamber's experience is entitled to weight particularly given that, as he explained, he focused on pre-concentration techniques in his PhD thesis (before the priority date) because of its underutilisation in the industry.
64 Dr Morrison referred to the sorting of truckloads of uranium by sensing techniques in Western Australia as being described in a paper published in 1980 in what he described as the Mawby volume of Mining and Metallurgical Practices in Australasia. About this three things may be said. One is that this is also a description of a niche application. The next is that if it is the case that, as Dr Morrison said, most people in Australia "…doing mineral processing plant design would have spent a fair bit of time studying that volume because it's a hugely useful summary of mining and processing operations across Australasia", it is not apparent that they would have absorbed the particular paper to which Dr Morrison referred. Finally, if the content of the paper had been absorbed, it would have done no more than confirm bulk sorting as a niche technique inapplicable to the general processing of ores. Contrary to the submissions of the respondent, the evidence was not to the effect that bulk sorting was included in "…widely distributed references that would have been studied by students of mineral processing plant design".
65 While all of the experts were aware of the development of sensing technologies for use in the bulk sorting of ore, Dr Bamber did not agree that the available sensor technologies were suitable for use in bulk sorting and was also not aware of the existence of heterogeneity at a suitable scale to enable bulk sorting. Dr Miljak and Dr Morrison had a different view based on the Scantech technology and its promotion but, as I have said, I do not accept that this technology and its applications formed part of the common general knowledge of the skilled addressee. When I also take into account that Dr Miljak and Dr Morrison, given their respective roles, were in positions which would have ensured they were aware of the most recent developments in ore sorting sensing technology in Australia, I am reinforced in my conclusion that Dr Bamber's state of knowledge is more likely to be representative of the skilled addressee of the 171 application than that of Dr Miljak and Dr Morrison. As Dr Bamber said, and I accept, it "…would be unlikely that a mining company R&D manager or other technical appointee would be a specialist in sensor technologies". While Dr Miljak said the "…the representatives of the research arms of the mining companies had gone to a lot of trouble to try and understand sensor technologies when they were speaking to my group in particular". Dr Miljak's group specialised in sensor technologies so it is likely that he was dealing with a more specialised cohort of mineral processing engineers than I consider representative of the skilled addressee. Dr Morrison's evidence of people being very interested in instrumentation development was too vague to be helpful in this regard. Overall, I do not see the evidence of Dr Miljak and Dr Morrison as more persuasive than that of Dr Bamber about this issue.
66 I am also not persuaded that Dr Morrison's evidence about Scantech's CoalScan technology establishes any part of the relevant common general knowledge. As Dr Bamber said, he was not a coal engineer and did not particularly monitor developments in the coal industry. I consider this likely to be representative of the skilled addressee. As Dr Bamber put it, and as I accept forms the context for the 171 application:
This topic that we're talking about is about minerals. My experience is in minerals in general, and my knowledge relates to minerals in general and, in particular, with respect to pre-concentration and the sorting of minerals an[d] ores. I cannot comment about coal. I wouldn't claim to have particular knowledge or expertise in or of coal, so I can only comment with respect to minerals, mined ores of a mineral nature.
67 The appellant submitted, and I accept that:
Coal is not ore. Coal processing and mineral processing are different disciplines. Mineral processing engineers are not knowledgeable in, and do not typically refer to products and publications associated with, the coal processing field.
68 The experts all agreed that the concept of particle sorting was well known in mineral processing as a niche application, such as the radiometric sorting of uranium, optical sorting of industrial minerals, and x-ray luminescent sorting of diamonds. On this basis I am not satisfied that the use of particle sorting in the processing of ore formed part of the common general knowledge of the skilled addressee of the 171 application which is not concerned with any of the niche applications in which particle sorting was used. Rather, at best, the skilled addressee would have been aware that the use of particle sorting was confined to niche applications and had not been used in the general processing of ore. I do not accept the respondent's submissions to the contrary for the following reasons.
69 The skilled addressee of the 171 application is a mineral processing engineer in relation to the processing of ore. The fact that particle sorting was a niche application meant that knowledge of particle sorting as a concept relevant to the field had not been assimilated so as to form part of the stock-in-trade of the skilled addressee of the 171 application. Further, as the appellant submitted, the weight of the evidence indicated that:
There was resistance to the application of particle sorting of ore in mineral processing because it faced significant challenges including difficulties associated with discrimination techniques provided by sensor technology, feed preparation and material handling.
70 This resistance is a kind of knowledge which, based on the evidence of the experts, I consider should be attributed to the skilled addressee.
71 The evidence also indicated that, as the appellant put it:
The resistance to the application of particle sorting of ore in mineral processing was compounded by the limitations of sensor based sorting technology. Apart from optical sorters used in the niche application of industrial minerals, sensor based sorters were not "off the shelf products" but rather were highly specialised for each application and required in-depth examination and integration into existing processes, even altering the processes to the sorters need.
…
There could be no reasonable expectation that any given sensor for sorting of ore would work unless and until it was tested in the actual mineral process. Laboratory testing of sensing based sorting could not provide that information.
72 The experts all agreed that the combination of bulk sorting of ore followed by particle sorting of ore was not known by them as a concept in mineral processing, was not well known and generally accepted by those working in the field of mineral processing in Australia and was not used in mineral processing in Australia. On this basis I am satisfied that the combination of bulk sorting of ore followed by particle sorting of ore was not part of the common general knowledge of the skilled addressee of the 171 application.
73 In the context of common general knowledge, the respondent submitted that:
X-ray fluorescence (XRF), natural gamma, PGNAA and derivatives, and laser induced fluorescence (LIF) sensor technologies were well known and generally accepted for use in on-line analysis of ores. They were being used in mineral processing for on-line analysis of ore. To be used in on-line analysis of ore, the sensors needed to be accurate and fast, and sufficiently robust to survive an industrial environment. That evidence is consistent with a 2002 article by Klein, Dunbar and Scobie, "Integrating mining and mineral processing for advanced mining systems" which names LIF and PGNAA as potential underground concentration technologies, and characterises them has having no particle size limitation and no capacity limitation (a characterisation which Dr Bamber accepted was reasonable). The article noted that LIF and PGNAA could be applied to online quality control for bulk solids during transportation on conveyors or in open vehicles. It also suggested their use in systems for allowing steering of flows, which the Respondent says is a reference to bulk sorting.
74 It is necessary to unpack this submission. The experts agreed that the identified technologies were well known and generally accepted in the relevant field as available technologies for mineral processing. However, the respondent has not proved that the 2002 article by Klein, Dunbar and Scobie, or its content, formed part of the common general knowledge of the skilled addressee. The fact that Dr Bamber was aware of the article does not prove this fact. Further, even if the article had been assimilated by the bulk of those in the field and formed part of the common general knowledge, I am not persuaded that the skilled addressee would have read the reference to the "steering of flows" in the context of an article dealing with online analysis as a form of bulk sorting. Dr Bamber disagreed with this proposition saying it was a reference to whole stream diversion which, despite the respondent's submissions to the contrary, I consider Dr Bamber never accepted to be a form of bulk sorting. It is also necessary to note that, as the appellant submitted, the evidence supported the conclusion that:
The requirement for sensors for online analysis are very different to the requirements of sensors for sorting ore (bulk or particle sorting). Sensors for online analysis measure in near real time and can occur at various stages in the mineral processing operation. In contrast, sensors used for ore sorting must operate in real time, with fast and precise readings, with a direct connection to a microprocessor and communicate with low latency to physical diverters, in challenging physical environments.
(emphasis in original.)
75 To the extent the respondent suggested to the contrary based on the potential for a time lag between the sensing and the time for the material to travel through the system, I do not accept that online sensing is the same as the sensing that would be required for use in the bulk sorting of ore. Dr Miljak accepted that "…automatic ore sorting…requires fast and precise readings over a short time period" and that "…sensors used for ore sorting…have to operate in challenging physical environments", and "…have to communicate with low latency to physical diverters that will affect the sort [sic]". Dr Bamber agreed that there were these differences between online analysis and the potential use of sensors for bulk sorting, as did Dr Morrison. Dr Bamber said this:
So in the particle sorting world and the real time sorting world, the measurement time available, the phenomenon you're trying to measure, is of the order of milliseconds. And therefore, the sensor measurement interval for a single measurement is of a similar order, milliseconds. And that measurement, if you think about a shot like a photograph, trying to take a photograph, it's like taking photographs at a Formula One race where you're trying to take a photograph of the Formula One car. And so your exposure needs to be sufficient to be able to take a picture of the car and know that it's not just a red blur, but in actual fact a Ferrari. That's the level of timeframe and fidelity that you need for a real-time measurement, in order to make a real-time decision, in order to make a real-time sort. And latency of a similar order. So latency being the time it takes for a measurement to be taken, and that measurement to be reported to the microprocessor is also of that similar order of milliseconds.
In the online analysis world, your criteria are not so much the fidelity of the single shot. So you're not trying to take pictures of the Formula 1 car. You are trying to measure with very high precision and accuracy the metal content of the material that is past the censor in order to be able to report that with high fidelity to, for instance, the - you know, let's say metal accountants at the mine. But it would correspond very closely over that period of time to the actual content of that material. So we're now talking - on the one hand, we're talking milliseconds with millisecond levels of latency. And on the other hand, we're talking about measurements that themselves may take - I think it's quoted in one of the articles. I think it's the Kurth article - a matter of minutes. And many of those measurements that take themselves individually a matter of minutes add up over time to give you the result that you're looking for. So you're in orders of magnitude different timeframe world with respect to online analysis than you are with sensor-based sorting.
76 Further, I accept the appellant's submissions that the evidence also supports the following conclusions at the priority date, having regard to the difference between bulk sorting of ore and online analysis of ore:
(1) laser-induced breakdown spectroscopy (LIBS) had not been used for either bulk sorting or particle sorting of ore;
(2) laser-induced fluorescence (LIF) had not been used for either bulk sorting or particle sorting of ore;
(3) X-ray fluorescence (XRF) had not been used for either bulk sorting or particle sorting of ore;
(4) PGNAA had not been used for either bulk sorting or particle sorting of ore; and
(5) sensors based on radio frequency technology had not been used for either bulk sorting or particle sorting of ore.
77 Accordingly, the potential use of these technologies for the bulk or particle sorting of ore did not form part of the common general knowledge of the skilled addressee. To the contrary, as the appellant submitted, it was generally thought that sensor technologies were too slow, inaccurate or of insufficient scale in order to be incorporated into a conceivable bulk sorting application. Dr Miljak confirmed that even as at 2016:
…there are few sensors suitable for bulk ore sorting, as the ore sorting sensor ideally has a large sensing volume and be able to measure ore on conveyors that contain long metallic cores.
78 Otherwise, I accept the respondent's submissions that the common general knowledge of the skilled addressee would have included the following:
(1) Capacitance, moisture analysers, particle size analysers (coarse and fine) and weightometers, density gauges, and flowmeters were in use for online analysis; and
(2) off-the-shelf sensor sorting systems for use in mineral processing were not available before the priority date. There was trial and error involved in every installation. Automatic sensor systems needed to be configured by optimising the speed of the conveyor, the type of sensor, the time taken to process the signal and the time to send instructions.
79 As to the relevance of heterogeneity, Dr Bamber's PhD thesis was based on the premise that there was heterogeneity that was effectively overlooked in the industry, including in Australia. Dr Miljak agreed with Dr Bamber that you would have to know about heterogeneity for bulk sorting but considered that the relevant point was the scale of heterogeneity, and at the block mining scale the issue was well understood in Australia whereas at the two metre scale there was probably very limited information about heterogeneity. Dr Morrison also considered that the issue was one of scale and was one the industry was "…enormously well aware of" at the priority date. Dr Bamber made the point that it was heterogeneity between the two extremes of scale that was the necessary information for a bulk sorting operation and said "…there are no publications that I'm aware of that either speak to that length scale of heterogeneity or quantify that length scale of heterogeneity before the priority date". Dr Miljak also gave evidence which I consider supports Dr Bamber that heterogeneity in the 20 to 1000 tonnes range was neither quantified nor well known at the priority date. Dr Morrison also agreed that such heterogeneity was not well known but said it was "becoming known". He said that it was "[b]ecoming well known, but it wasn't generally known, I think is fair". As a result, I do not accept the respondent's characterisation of Dr Morrison's evidence that "…heterogeneity from 20 tonnes to 1000 tonnes was harder to detect without PGNAA online analysis, but that the existence of such heterogeneity was known, and techniques existed to measure it". In my view, Dr Morrison's evidence was more nuanced than this and, properly understood, did not suggest that knowledge of the relevant scale of heterogeneity was common general knowledge of the skilled addressee.
80 To the extent it is necessary to say so, I am not persuaded that Australia was necessarily leading the way in relation to sensing technologies for use in sorting before the priority date. Australia had made advances in that field, but as Dr Bamber said, and as I accept, the leading developer was Europe.
81 In the context of the common general knowledge the respondent made this submission:
Professor Herman Wotruba and his team (which included Nienhaus) at Aachen University were recognised by all of the witnesses for their expertise in sensing and sorting ore. In 2006, Professor Wotruba wrote a paper (the Wotruba article), which each of Dr Bamber and Dr Morrison had read before the priority date. Professor Wotruba described the Australian paper, Salter & Wyatt, as "fundamental", and the CSIRO paper, Cutmore & Eberhardt, as "essential" and "fundamental". Dr Bamber accepted the characterisation of Cutmore & Eberhardt as "i" [sic - "essential"].
Cutmore & Eberhardt describe sensing technologies for the automated analysis and sorting of mineral ores, based on a literature review. The Respondent says that Cutmore & Eberhardt was CGK, or alternatively, that the information in Cutmore & Eberhardt was CGK. The different technologies which were summarised in that review included nuclear, optical, x-ray sensor, and radio techniques.
82 The respondent has not proved that Cutmore and Eberhardt or that any part of its content was part of the common general knowledge of the skilled addressee. The respondent pointed to a passage in Cutmore and Eberhardt as follows:
The equipment and processes used depend on whether individual particles or bulk ore lots are being sorted…There have been a limited number of developments for the sorting of bulk ore lots. Bulk sorting can have a number of advantages in ore handling and throughput, but has the attendant disadvantage of offering less discrimination…CSIRO Minerals is presently involved in the development of new sensing techniques suited to ore sorting and characterisation…techniques that are currently being evaluated by CSIRO for bulk analysis are nuclear quadrupole resonance and neutron generator based elemental analysis.
83 Far from proving that this information formed part of the common general knowledge, the information itself indicates that the CSIRO's evaluation and the results of that evaluation would not have been assimilated by the bulk of mineral processing engineers.
84 Apart from these matters, I accept the appellant's submissions that it was common general knowledge that:
(1) the feed size of the ROM ore that is fed into primary crusher is up to approximately 1.5m;
(2) primary crushed ore is typically fed onto a conveyer belt where the particles will stack on top of each other and be unevenly distributed on the conveyer belt; there will be substantial variation of mass cross-section of particles of the conveyer; and
(3) the minerals industry was conservative, relied on proven technologies and was slow to develop and implement new technologies.
85 I consider that the conclusions I have reached about the common general knowledge are supported by the evidence of Dr Bamber which I have accepted and, in particular, his PhD thesis. Dr Bamber completed his PhD thesis before the priority date. He explained that at that time and as at the priority date the concept of pre-concentration was known but not widely or commonly applied in the mining industry including in Australia. Because of his research for his Masters and PhD, he had a greater knowledge than most mineral processing engineers about this area including those in Australia. In his view, there was industry-wide resistance and opposition to new approaches including pre-concentration in the mining industry including in Australia. It was largely for this reason that he chose to centre his PhD on pre-concentration techniques and suggested in his thesis that the general industry-wide resistance to pre-concentration was largely unfounded and that mining companies should be considering pre-concentration including by comminution and size classification, ore sorting, dense media separation and coarse-particle flotation. Dr Bamber did not discuss bulk sorting as a pre-concentration technique in his PhD thesis even though he knew that bulk sorting was a subset of ore sorting which he did discuss. He did not do so because while he understood the concept he was not aware of how it could be applied in practice and believed that particle sorting would be preferable to bulk sorting as a pre-concentration technique. He anticipated that suggesting bulk sorting as a pre-concentration technique as a theoretical application "…would meet even more resistance than particle sorting or other pre-concentration techniques". He continued to hold these views as at the priority date and before that date had not considered the details as to how bulk sorting could be applied in practice. He first published in relation to bulk sorting after the priority date in 2012.