Was PJM-1 Offered for sale or sold as a single unit?
140 The issue for determination is whether PJM-1 was offered for sale or sold as a single unit. Based on the construction of the claims that I found above, if PJM-1 was not offered for sale or sold as a single unit, it cannot have anticipated the relevant claims of the Patent.
141 In general, Mr Morris says that PJM-1 was offered for sale and sold as a complete product with the loose nut connected, just ready for the plumber to install.
142 Mr Morris says that the Quickie Kit demonstrated at the Plumbtec Conference contained several items, each of which was in a single unit and not in pieces. The separate items were individual valves, being the tempering valve and the loose nut ball valves.
143 However, the Brochure and the Drawing both depict the nut and tail as separate components to be assembled by the plumber. Mr Morris does, at one stage in his evidence, differentiate between the Brochure/the Drawing and how the AVG Quickie Valves were actually supplied. Mr Morris says that the exploded view was not how the Quickie Kits or AVG Quickie Valves were physically provided. Mr Morris states:
We had it where the ball valves were connected to the appropriate fittings and there would be a loose piece of tube, a tempering valve, a T-piece… which was just a compression outlet, and a loose connection to both the tempering valve and the water heater and a separate loose nut that went to a T-piece, which was connected to the ball valve.
144 Mr Morris says that the Drawing was not an installation instruction but showed the components that went into the making of the Quickie Kit. He says that the valves came in a kit which was equivalent to the parts depicted in the Drawing. That included a tempering valve. Mr Morris accepts that the Quickie Kit was designed in such a way as to enable the tempering valve to be included within the ball valve. That is, the nut and tail would need to be removed to insert the tempering valve. However, Mr Morris also says that the tempering valves were offered separately to the Quickie Kit and attracted no interest at the Plumbtec Conference.
145 Mr Morris says that the Quickie Kit was offered in a bag, rather than in a box. While instructions were apparently included, Mr Morris says that each of the valves in the Quickie Kit was never provided in the form of its separate components but only came as a pre-assembled valve 'incorporating the loose nut ball valve, the loose nut component'. He says that this assembly was provided by Mania National, which screwed together and pressure tested the valves.
146 Mr Morris says that at the Plumbtec Conference the Quickie Kit was only displayed on a water heater. This would mean that any components were already screwed together, either because they were pre-assembled or because they had been manually joined.
147 The evidence is somewhat confusing, as Mr Morris also says that what was shown at the Plumbtec Conference was a Quickie Kit made up of separate components. When asked if the components were manufactured together as a single unit, Mr Morris responds that they were individual valves. That does not answer the question whether the components were in a single valve or had been manually connected. Mr Morris accepts in cross-examination that the purpose of the Quickie Kit was to enable plumbers to connect to the instantaneous hot water systems 'using the variety of parts that came in the [Quickie] Kit', but that may refer to a Quickie Kit containing individual valves, where each of those valves had its components joined together as one unit. When asked the question
but if somebody were to say that they had received in 2006 valves which are manufactured in accordance - sorry, valves such as the type that you have displayed... but with the nut and tail separate and not together with the handle part, you wouldn't be able to say one way or another how that came about?
Mr Morris answered in the negative.
148 Mr Morris says that on the AVG price list the loose nut ball valves were designated 'BVF-15C, Q15 or Q20', which leads him to conclude that PJM-1 'is an individual product' because valves with a "Q" in the part number came assembled and were not meant to be pulled apart, although they could be. Mr Morris says that the nut and tail was inserted into the threaded section of the valve but the part was manufactured externally by Mania National and was only provided to AVG after the section was screwed together and pressure tested.
149 However, PJM-1 does not have the "Q" designation on it. In this regard the following passage is of significance:
So, Mr Morris, just so I can be completely clear, a BVF valve is one which is supplied as a valve with a female joint for something to be inserted within the female joint; is that right? - Right.
And a BVQ is one supplied with the nut and tail fitting included in it? - Yes, my latest names that I'm calling them are BVQs and if - you can't actually see this, but it's just something I researched just yesterday, is the actual name on this particular nut ball valve was a BVF. I will give you the detail. It's a BVF20-FL Q20, so the Q once again meaning the loose nut connection. So if it was just a BVF20-C, that's how it would be listed, a BVF2020-FL and in this case it's actually got a Q in the part number.
150 After providing this evidence, Mr Morris was shown photographs of an AVG nut and tail ball valve that did not have a "Q" designation on it. The following evidence was then given:
Yes, and your evidence was, wasn't it, that you knew when the Q designation appeared that the separate nut and tail was screwed in, but when the Q designation didn't appear, it wasn't screwed in, was it? - As provided to the merchants or the plumbers, you're correct. If it had just an F on the valve, it was sold as an F and our loose nut ball valves were sold as a kit, so they weren't sold - they were sold as individual valves, but as you're pointing out, the name of the valve is not showing the Q. I will agree with that.
151 This evidence tends to indicate that PJM-1 was not sold with a manufactured nut and tail screwed into it. Mr Morris repeatedly asserts that Quickie Kits with the letter Q in their listing had attached nut and tail fittings and that those without a Q had loose nut and tail fittings. Mr Morris maintains that PJM-1 had a "Q end" on it but had earlier agreed that if an AVG valve was an "F valve", as PJM-1 was, it was sold as an individual valve in a kit with the separate nut and tail fitting not screwed into the valve. However, despite the fact that there was no Q designation on PJM-1, Mr Morris seeks to maintain his assertion that PJM-1 was "sold as a complete unit". This is clearly inconsistent with his statement that the pre-assembled Quickie Kits had the Q description. It is fair to say that Mr Morris' evidence was somewhat confusing and inconsistent.
152 In Mr McPherson's view, from an examination of the Quickie Kit and the Brochure, he considers that the AVG Quickie Valve in the Quickie Kit was supplied with the pieces shown in the Brochure disassembled. Mr McPherson sees the Brochure as showing that the nut and tail is separate from the valve housing and is designed to be screwed into the AVG Quickie Valve.
153 Mr Michaels, a director of Zetco, says that some time in 2006 he purchased a Quickie Kit through a plumbing supplier. He was not able to say with precision when in 2006 this purchase was made. Mr Michaels received a kit in a clear, heat-sealed plastic bag which contained the components of the Quickie Kit and a document showing the various components. The valves purchased by Mr Michaels had identical product codes to those of PJM-1. Mr Michaels says that the package contained, as separate components:
(a) a female to copper olive DN 15 ball valve and a separate nut and tail component, the tail having a DN 15 male thread and DN 20 nut;
(b) a female to flared compression DN 20 ball valve and a separate nut and tail component, the tail having a male thread; and
(c) a fitting which would be used to connect the hot water outlet on an instantaneous gas hot water system to the copper tube.
154 Mr Michaels exhibited the items in (a) and (b). He no longer has the fitting in (c). As a professional engineer familiar with the manufacture of ball valves, Mr Michaels says he is of the view that the nut and tail component and the ball valve component of each of (a) and (b) have never been joined in a manufacturing process.
155 Zetco submits that this evidence, together with that of Mr Morris, establishes that PJM-1, when supplied, consisted of a female threaded isolation valve which could be joined to a separate nut and tail fitting.
156 Austworld submits that Mr Michaels' evidence has no probative value for two reasons:
As Mr Michaels was unable to recall when in 2006 he purchased the Quickie Kit, his evidence does not establish that the AVG valves he purchased were available in the Australian marketplace before the priority date of 26 February 2006. Austworld does not accept that his purchase was in this form or was made prior to the priority date.
The valves on which Zetco relies as having been sold in parts were not put to Mr Morris in cross-examination.
157 As to the former, Mr Michaels was not cross-examined as to the date of purchase of the Quickie Kit. There is no suggestion that the valves sold by AVG in 2006 prior to the priority date differed from those sold in 2006 after the priority date. While it is necessary for Austworld to establish anticipation prior to the priority date, Zetco is not precluded from relying on the purchase of the Quickie Kit in 2006, even though the purchase may have been made after the priority date. I am satisfied that the valves in the AVG Quickie Kit purchased by Mr Michaels were in the form in which those valves were available as at the priority date.
158 As to the latter, I do not accept that the failure to put those specific valves as purchased by Mr Michaels to Mr Morris means that Mr Michaels' evidence must be rejected. I accept that Zetco cannot rely on any adoption by Mr Morris of those valves.
159 Austworld submits that Mr Morris' evidence makes it quite clear that PJM-1 was offered for sale and sold before the priority date as a single piece ready for installation by plumbers.
160 Zetco submits that, in the absence of any physical evidence of the packaging of PJM-1 and given the contradictory evidence of its manufactured state, no assumptions can be made as to how PJM-1 was assembled sufficient to conclude that it was sold as a pre-assembled unit such that a plumber would not be required to add a fitting to the female threaded outlet. Zetco submits that this means that Austworld has not established that PJM-1 constitutes an anticipation of the claims.
161 Given the inconsistencies in Mr Morris' evidence, particularly regarding the Q designation, as well as the evidence of Mr Michaels, Austworld has not established on the balance of probabilities that PJM-1 was sold or made available as a single unit, rather than as a valve with a female threaded outlet supplied with a separate nut and tail for connection.
162 As I found above in the section on construction, claim 1 of the Patent is to a single unit. Accordingly, PJM-1 cannot have anticipated the relevant claims of the Patent.