62 In September and November 1986 Wrigley's research and development department in Chicago conducted tests of Palatinit for use as a chewing gum coating in Australia. Mr William Chalker, employed at that time by Wrigley Australia as Quality Assurance Manager, accepted that somebody in the company's upper management level in Australia would have been aware of these tests. The tests themselves, being confidential to Wrigley, would not be part of CGK in Australia. However this evidence of testing in the United States for possible use in Australia suggests that Palatinit, which had been marketed for some years by a prominent German firm, was part of the world confectionary marketing scene, at least in advanced industrial countries such as Australia.
Q4 Was the information in the Infopac part of CGK?
63 Mr Peter Kissane at the relevant time was working as Manager, Pharmaceutical Development Department at Nicholas Kiwi in Melbourne. In the course of working on a "soft chew" antacid product (not confectionery), in December 1986 Mr Peter Wilson (since deceased), a chemist who worked under Mr Kissane, received 1 kg of Palatinit and a copy of the Infopac by airmail from Palatinit GmbH. A larger sample, 20-25 kg, was sent by sea freight. The accompanying letter said, amongst other things, that Palatinit handled well in most processes and was very low in hygroscopicity.
64 The approach to Palatinit GmbH was initiated by Mr Kissane's predecessor Mr Kaufman who had become the technical director of Nicholas Kiwi's plant in Geihard, France. Mr Kaufman had suggested that Mr Wilson write to Palatinit GmbH.
65 Mr Bernd Andrzejeski has worked as a confectioner since completing his apprenticeship in Germany in 1956. From 1972 to 1986 he worked for Red Tulip Chocolates, a large manufacturer of confectionery in Victoria. When Cadbury purchased Red Tulip in 1986 Mr Andrzejeski left and since then has conducted a confectionery consultancy business.
66 Mr Andrzejeski became aware of Isomalt (he uses this term rather than Palatinit and is not familiar with the term hydrogenated isomaltulose) in about early 1985 when Red Tulip was investigating sugar replacers. He read about it "very generally" in trade magazines at the time. In late 1985 or early 1986 "some promotional information" from Palatinit GmbH was circulated to him and his colleagues. Red Tulip's policy was to distribute information about new confectionery developments to all of its senior confectioners. He remembers that this promotional information set out the properties of Isomalt, as well as products in which Isomalt had been tried by Palatinit GmbH and mentioned the use of Isomalt in chewing gum and as a coating for soft confections. Having regards to what he was told about the properties of Isomalt, "both applications made sense to me".
67 Mr Kissane's evidence is perhaps not of great weight on this issue since his encounter with the Infopac rather depends on his introduction to it by Mr Kaufamn, who was then in France. However, as to Mr Andrzejeski, it seems probable that the "promotional information" he recalls was the Infopac. Certainly the Infopac answers the description of promotional information. Given that it was a detailed technical document which contains the kind of information of which Mr Andrzejeski speaks, it seems unlikely that Palatinit GmbH sent Red Tulip some other document. Since Mr Andrzejeski left Red Tulip in 1986, the publication must have been before the priority date.
68 Red Tulip was a substantial Australian confectionery manufacturer. It is reasonable to take its knowledge of new products and developments as a fair sample of the state of knowledge in the industry at the time. Moreover, there was common awareness in the industry of the need for sugar substitutes which would be acceptable to consumers and feasible for use in manufacture. All the more reason therefore that a document like the Infopac would have been sought and its contents read and assimilated.
69 I conclude that the information in the Infopac was part of CGK in Australia at the priority date.
Q5 To what extent was knowledge of sorbitol and its properties included in CGK?
70 Quite apart from admissions in the specification, and the information in the Infopac, there was evidence of substantial awareness of sorbitol and its properties by the priority date.
71 Sorbitol is a very old sugar replacer. Mr Andrzejeski first used it at Red Tulip in 1969 in chocolates designed for diabetics and chocolates with liquid centres. He used it extensively when Red Tulip was investigating new sugarless product lines in about 1985.
72 Sorbitol was known to be hygroscopic. It would cause products on the shelves of shops to deteriorate unless the products were carefully packaged. Mr Andrzejeski deposed:
"I was attempting to use (Sorbitol) to form a hard confectionery coating. Despite my many years of panning experience, I found it almost impossible to create a consistent smooth coating. The coating's hygroscopicity made it absorb great amounts of moisture from the air, and when I tried to apply colours to the coating, the Sorbitol would be so absorbent that I could not 'paint' the colours on properly. Additionally, when the goods were coated by panning them in Sorbitol solution, the results were blotchy, mottled and inconsistent because Sorbitol tended to clump together after it dried, rather than forming a smooth, flat finish.
After my experiences with Sorbitol, I formed the view that it could not be used on a large scale to make smooth, attractive confection coatings on a consistent basis. This was particularly so in Australia, where humidity is higher compared to Europe and much of the United States, and so products which are relatively hygroscopic are even more problematic.
By 4 May 1987, I had found that the only way to form a good coating for a soft confection using Sorbitol was:
· To keep the water content of the centre so low that there was hardly any water free to migrate to the coating; and
· To package the product in such a way that a moisture barrier was created between the product and the outside environment, or else the coating would quickly absorb too much water from the air outside and become unstable."
Q6 To what extent was knowledge of Palatinit and its properties included in CGK?
73 Mr Andrzejeski had substantial awareness of Palatinit. His colleagues at Red Tulip obtained a trial supply with recipes and information as to creating a hard coating for chocolate products. Understandably enough, it was typical for suppliers of raw ingredients to help manufacturers use their ingredients.
74 Based on the information supplied by the manufacturer, and recommendations from his colleagues, Mr Andrzejeski trialled Palatinit in chocolate products, and particularly in a product called Bunties (something like Smarties). He found Palatinit formed a "particularly effective" coating which was "exactly like a sugar coating; it was smooth, crunchy and consistent, and it responded well to colouring agents". The only problem was that in large quantities Palatinit could have a laxative effect, which made it unsuitable for a product directed at children. In any event, Red Tulip did not proceed to market the Bunties product.
75 Based on his trials and on the literature he read, Mr Andrzejeski found that Palatinit was an excellent sugar replacer. It was the sugarless sweetener most similar to sugar. In its crystalline form it looked and felt like sugar and could be panned in exactly the same way as sugar. It was very low in kilojoules, did not cause teeth cavities and, being chemically stable, did not react with other ingredients. It was "very non-hygroscopic", a characteristic which gave it "excellent properties in a coating application". This latter feature was Palatinit's "most popular property with confectioners". All the previous replacers had been very hygroscopic and so were very difficult to use in sugar-free products which needed to be coated.
76 I conclude that knowledge of Palatinit and its properties mentioned above formed part of CGK by the priority date.