Re Yamazaki Mazak Corporation v Interact Machine Tools (NSW) Pty Limited; IMT International Machine Tools Pty Limited and Nakamura-Tome Precision Industry Co Limited [1991] FCA 449; (1991) Aipc 90-830; 22 IPR 79 (23 September 1991)

FEDERAL COURT OF AUSTRALIA

Re: YAMAZAKI MAZAK CORPORATION
And: INTERACT MACHINE TOOLS (N.S.W.) PTY LIMITED; I.M.T. INTERNATIONAL MACHINE
TOOLS PTY LIMITED and NAKAMURA-TOME PRECISION INDUSTRY CO. LIMITED
No. G539 of 1990
FED No. 572
Patents
[1991] FCA 449; (1991) AIPC 90-830
22 IPR 79

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Gummow J.(1)

CATCHWORDS

Patents - petty patents - infringement - validity - obviousness - fair basing of claim upon matter described in specification - lack of novelty - whether Convention priority date preceded date of alleged anticipation - whether for that purpose claim fairly based on disclosure in foreign basic applications - whether petty patents obtained on false suggestion or representation.

Patents Act 1952

Patents Act 1990

Patents Regulations

Patents Act 1949 (U.K.)

Prestige Group (Australia) Pty Ltd v Dart Industries Inc. (1990) 26 FCR 197

C. Van Der Lely NV v Bamfords Limited (1963) RPC 61

Nicaro Holdings Pty Ltd v Martin Engineering Co. (1990) 91 ALR 513

Vax Appliances Limited v Hoover plc (1991) FSR 307

Raleigh Cycle Coy Ld v H. Miller and Coy Ld (1948) 65 RPC 141

Rose Holdings Pty Ltd v Carlton Shuttlecocks Ltd [1957] HCA 48; (1957) 98 CLR 444

Meyers Taylor Pty Limited v Vicarr Industries Limited [1977] HCA 19; (1937) 137 CLR 228

Populin v H.B. Nominees Pty Ltd [1982] FCA 45; (1981) 59 FLR 37

Minnesota Mining and Manufacturing Co. v Beiersdorf (Australia) Limited [1980] HCA 9; (1980) 144 CLR 253

Rehm Pty Ltd v Websters Security Systems (International) Pty Ltd (1988) 81 ALR 79

Re Mond Nickel Co. Ltd's Application for a Patent (1956) RPC 189

Morton-Norwich Products Inc. v Intercen Limited (1978) RPC 501

Best Australia Ltd v Aquagas Marketing Pty Ltd (1988) 83 ALR 217

HEARING

SYDNEY
23:9:1991

Counsel and solicitors for the Dr J.McL. Emmerson QC, Mr D.K. Catterns, Applicant (Cross-Respondent): instructed by Messrs Freehill,
Hollingdale and Page.

Counsel and solicitors for the Mr J.D. Heydon QC, Mr D.M. Yates,

First and Second Respondents instructed by Messrs Barker Gosling.
(Cross-Claimants):

ORDER

That the proceeding stand over to a date to be fixed for the bringing in of Short Minutes to give effect to the Reasons for Judgment delivered today.

NOTE: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.

DECISION

This is a patent infringement suit in which there is a cross-claim asserting invalidity. The applicant ("Yamazaki") is incorporated in Japan, as also is the third respondent ("Nakamura"). The first respondent ("Interact") is incorporated in New South Wales, and since October 1985 has been exclusive agent in New South Wales, Queensland and the Northern Territory for machine tools manufactured by Nakamura. The second respondent ("I.M.T.") is incorporated in Victoria, and since October 1985 has been exclusive agent in Victoria, South Australia, Western Australia and Tasmania for machine tools manufactured by Nakamura.

2. Nakamura was served outside Australia, in Japan, but entered no appearance and has taken no part in the proceedings against it. Yamazaki, nevertheless, seeks relief against Nakamura as well as Interact and I.M.T. on the footing that in respect of the infringements alleged against Nakamura's Australian agents, it is a joint tortfeasor.

3. At the trial, Yamazaki sought declaratory relief in respect of the alleged infringements and dismissal of the cross-claim against it by Interact and I.M.T. The hearing was conducted on the footing that if Yamazaki were successful in this way, the question of any further relief would stand over.

4. On 28 April 1988, Yamazaki lodged an application (accompanied by a complete specification) for a standard patent, under the provisions of the Patents Act 1952 ("the Act"). The application was in respect of an invention entitled "a complex machining machine tool and a machining method for the use of the machine tool". The application has been accepted by the Commissioner but no grant has yet issued. The Complete Specification concludes with 45 claims defining the invention, and the various embodiments are explained with drawings comprising 116 figures. The abstract of the disclosure in the Complete Specification is as follows:

"A complex machining machine tool having a
single frame in which a chip collecting space is
provided at the center portion, a first and a
second spindle stocks (sic) on the frame being
relatively free to move and drive in a Z axis
direction in the shape of holding the chip
collecting space, workpiece spindles on said
spindle stocks being free to rotate and drive in
the shape of facing mutually, and tool rests.
The tool rests and the turrets can assume
various kinds of movement forms. Furthermore,
the complicated and various kinds of machinings
can be performed in such a manner that the
rotation control forms of the workpiece spindles
and the spindle stocks are combined."

5. Pursuant to s. 51 of the Act, Yamazaki successfully made two applications for petty patents in respect of inventions disclosed in the Complete Specification. It is these petty patents which are the subject of the present litigation.

6. This proceeding was commenced by Application filed 14 September 1990. Petty patent No. 601140 ("140") was sealed on 16 July 1990, for a term of 12 months commencing on that day. Petty Patent No. 601669 ("669") was sealed on 30 July 1990, for a term of 12 months commencing on that day. During the term of both petty patents, that is to say on 30 April 1991, the Patents Act 1990 ("the 1990 Act") came into operation. But by that time this proceeding had been instituted. Regulation 23.26 (1) of the Patents Regulations provides that the previous Act continues to apply to a proceeding (such as the present) which had been started under that legislation and not finally dealt with or determined before the commencement of the 1990 Act. Accordingly, no question under the 1990 Act arises in this proceeding.

7. The 12 month terms of both petty patents had expired before the commencement of the trial. Applications for extension of the terms of the petty patents were lodged at the Patent Office before the relevant expiry dates of the initial terms, but the Commissioner has not determined whether the extensions should be granted, having regard, in particular, to the challenge to validity presented on the cross-claim which is before this Court.
The Issues

8. The ultimate issues before this Court are whether there was infringement during the 12 month terms now expired, and whether the petty patents were invalid.

9. I.M.T. admits that during the term of each of the petty patents, it sold a Nakamura TW-20 machine tool. Interact admits that it attempted to sell the Nakamura TW-20 to customers during the term of each of the petty patents. The other Nakamura models, the TW-10 and TW-30 are, relevantly, identical.

10. However, Interact and I.M.T. say that neither petty patent claims a machine tool with one spindle stock which is fixed. The Nakamura machine does have this characteristic, hence the submission that there is no infringement. In addition, Interact and I.M.T. contend that the Nakamura machine also lacks an integer required only by petty patent 140, thus providing a second reason for escaping infringement of that petty patent.

11. Various grounds are put forward on the cross-claim by Interact and I.M.T. First, they allege that both petty patents were bad for anticipation, (i) by the publication in Australia on 7 December 1983 of Japanese patent No. 58186501 ("the Japanese patent") and (ii) the publication in Australia on 24 July 1962 of French patent No. 1196561 ("the French patent").

12. Further, there is a dispute concerning anticipation in relation to priority dates. Yamazaki has relied upon 15 basic applications, within the meaning of s. 141 of the Act, which were made by it in Japan on various dates between 28 April 1987 and 24 December 1987. These 15 applications became collectively Exhibits 3A - 3O. The application date for Exhibits 3A - 3E inclusive was 28 April 1987. That for Exhibits 3F and 3G was 29 May 1987. It is particularly in respect of these seven basic applications, all made in Japan before 11 June 1987, that an important question arises. It is as follows.

13. These basic applications were relied upon both in the application for the standard patent and in the application for the two petty patents. As I have said, the application for the standard patent was lodged on 28 April 1988, just within 12 months from the making of the first five of the Japanese basic applications. The application for petty patent 140 was lodged on 21 June 1990, and that for petty patent 669 was lodged on 6 July 1990. Interact and I.M.T. assert that these application dates are the respective priority dates, i.e. they deny fair basing in respect not only of the Japanese applications, but also of the application for the standard patent lodged in Australia on 28 April 1988. However, by a combination of sub-s. 45 (1), paras. 45A (2) (b), (d) (i), and ss. 141 and 142, Yamazaki asserts a priority date of the claim in each petty patent specification being 28 April 1987 or, failing that, 29 May 1987, on the footing that these alternative dates are the dates on which there was first disclosed the matter on which the claims in the petty patents are fairly based.

14. The importance to Yamazaki of holding one or other of these priority dates lies in the publication on 11 June 1987 in Australia to Yamazaki's Australian distributor, John Hart Pty Limited, of detailed drawings of Yamazaki's Multiplex machine. Yamazaki accepts that its own machine falls within the scope of the claims of both petty patents. Therefore, unless the petty patents had, by dint of the dates of the Japanese basic applications, one of the earlier priority dates that I have mentioned, Yamazaki, by this publication in Australia on 11 June 1987, would have anticipated the claims in the petty patents. Hence the significance of Yamazaki's submissions as to fair basing upon the Japanese basic applications in response to the allegation by Interact and I.M.T. of invalidity for anticipation.

15. In their further amended particulars of objection, these respondents relied upon a number of other alleged anticipations, but, in the event, they were not pressed at the trial.

16. The respondents also submitted that the inventions, so far as claimed in the claims of the petty patent specifications, were obvious and did not involve an inventive step having regard to what was known or used in Australia at or before the priority dates of the claims: para. 100 (1) (e) of the Act. In that regard, particular reliance was placed upon what was said to be the inclusion in the common general knowledge in Australia of the Nakamura TMC-20 machine with what was described as the "back face turning device".

17. At the trial, there was no allegation of inutility.

18. Next, it was submitted that if the claims in the petty patents each were to be construed sufficiently widely to result in infringement, the result would be that, within the meaning of sub-s. 40 (2) of the Act, neither claim was fairly based on the matter described in the relevant petty patent specification. There were further grounds asserting failure to comply with s. 40, but they were limited to petty patent 140. These s. 40 points were identified for convenience in the argument as the "gap" points. The reason for this appellation will later appear.

19. There remains one further ground of objection. Paragraph 100 (1) (k) of the Act provides that a petty patent may be revoked on the ground that it was "obtained on a false suggestion or representation". The meaning of that paragraph recently was considered by the Full Court in Prestige Group (Australia) Pty Ltd v Dart Industries Inc. (1990) 26 FCR 197 at 199-202, 213-219. In the applications for each of the petty patents, the declaration in support identified as the actual inventors three persons, Messrs S. Momoi, Y. Mitsukuchi and S. Hashimoto. These three gentlemen were shown as the inventors in respect of the five Japanese basic applications dated 28 April 1987 (Exhibits 3A - 3E). But in respect of the other two basic applications lodged before 11 June 1987, that is to say Exhibits 3F and 3G, which both were lodged on 29 May 1987, only two of the three gentlemen were stated as inventors. There are other disconformities apparent in the inventors named in Exhibits 3H, 3I, 3J, 3L, 3M, 3N and 3O, those applications all having been lodged after 11 June 1987. Interact and I.M.T. contend that the petty patents are bad because they were obtained as a result of a false suggestion, principally as to the identity of the inventors of the inventions claimed in the petty patents.
The Art

20. Before turning to the text of the claims for the petty patents, it is necessary first to turn to the meaning, as it appears from the evidence, of some of the technical terms which are used in them. Each claim is for a "machine tool", a device used particularly for the shaping of metal objects by guided and powered relative movement between a cutting tool or tools and a workpiece. The term "spindle stock" is used synonymously with "head stock". It identifies those portions of a machine tool which hold the bearings in which the spindles are mounted, including drive gears and an enclosure designed to support the spindle and to transfer power from a motor to a workpiece mounted on the spindle; the motor may or may not form part of the head stock. The "tail stock" is a device for supporting the end of the workpiece (the object upon which machining is taking place so as to shape it into a component or part) so as to prevent deflection during that machining. The "Z axis" is the programming direction of the cutting tool relative to the workpiece, being parallel to the axis of rotation of the head stock spindle. On the other hand, the "X axis" is the programming direction of the cutting tool relative to the workpiece, being perpendicular to the axis of rotation of the head stock spindle. The "chuck" is a type of workpiece holding means which is attached to a spindle; the workpiece is generally secured to the chuck by clamp jaws or collets. The "turret" is a device for holding cutting tools which enables different cutting tools to be put into position by contact with the workpiece. A "tool rest" may describe the object upon which a cutting tool is located, but in the claims for the petty patents it refers to the object on which the turrets themselves are located.

21. In older mechanical manufacturing systems, parts were manufactured in a step by step operation so that, for example, in the case of components requiring several types of machining, such as turning, cutting, milling and drilling, each operation was carried out sequentially and usually upon different machines. As a result, there would be stocks of partly machined goods at each stage in the process. Towards the end of the 1970's, the introduction into Australia of the "just in time" concept of manufacturing involved the elimination of large inventories of unfinished goods and component parts, and the production of finished articles "just in time" to meet the requirements of customers. In response to these changes, there was a need for an integrated manufacturing process capable of producing at speed a range of parts in large or small quantities as required. There also developed computer numerical control ("CNC") machine tool technology. The high cost of this led to a need to reduce the number of machines required to produce the desired range and volume of parts. That in turn led to a requirement that CNC machine tools be capable of producing particular "families" or groups of parts.

22. The result of these developments was a need in the 1980's for machine tools capable of achieving batch manufacture with a minimum of lost time for set-up and tool changing. Another need was for transfer systems for parts which minimised the time required for transfer and thus minimised the lost manufacturing time. Systems for the transfer of parts had initially involved transfer by hand but had developed with the use of robotics integrated into the machine tool itself.

23. Mr J.M. Day, a highly experienced specialist consultant who was called by Yamazaki, said that in his opinion, the machine tool, the subject of the petty patents, was a hybrid machine tool because what is taught by the specifications and claims is a two spindle machine tool capable of performing combined turning, milling and drilling operations as applied to bar work, shaft work and chucking work. In his opinion, the combination of all these machining functions in relation to different workpieces meets the objectives of "just in time" manufacturing procedures.

24. I should add that "bar work" involves the machining of a workpiece in the form of a bar which is fed through a hollow spindle; following machining, the bar is parted off and a new length is advanced through the chuck and the machining process begins again on the new exposed end of the bar. "Shaft work" involves the machining of a workpiece located in the chuck of the head stock and supported at the other end on a tail stock centre. A tail stock typically has a centre on the same axis as the head stock spindle. By contrast with shaft work, "chucking work" involves the machining of workpieces which are presented individually to the machine and held in a chuck within a spindle. It will be necessary to refer to various other aspects of the art later in these reasons.
The Claims

25. The claim in each of the petty patents is for a machine tool comprising a combination of integers. Each claim has a considerable amount of common area with that of the other claim. However, the claim in petty patent 140 is narrower because the combination includes additional integers. In terms of the structure of claims ordinarily found in a standard patent, the claim in petty patent 140 is a dependent claim to the primary claim in petty patent 669. In each case, the claim is set out in a series of unnumbered paragraphs. I will follow this presentation, but some care is necessary. This is because it is apparent that there are in total more integers than there are paragraphs, so that within some paragraphs there is a number of integers.

26. I set out the text of the claim in petty patent 140, indicating by italics the material which is additional to the claim in petty patent 669:

"A machine tool, comprising:
a frame;
first and second spindle stocks mounted on the frame;
first and second workpiece spindles rotatably supported by
the first and second spindle stocks respectively and sharing
a common axis of rotation, each workpiece spindle having a
workpiece holding means to hold a workpiece while it is
machined, the workpiece holding means being positioned
between the spindle stock to face each other;
first and second tool rests, associated with the first and
second spindle stocks respectively, both disposed, with
respect to the frame, to one side of the common axis, and
both movable at least in a direction perpendicular to the
common axis;
first and second turrets disposed on the first and second
tool rests respectively, each turret being free to rotate
about an axis parallel to the common axis, the turrets being
positioned between the tool rests such that side faces of
the turrets face toward each other, and the arrangement
being such that a gap, which may vary in size, is maintained
between the first and second turrets;
the second spindle stock being movable relative to the first
spindle stock so as to deliver a workpiece to the second
spindle stock from the first spindle stock;
in use one or more outside diameter machining tools, or
inside diameter machining tools, or both, are mounted about
the periphery of the first and second turrets;
the machining tools each have a workpiece machining portion,
and the arrangement is such that when a mounted tool is
positioned by rotating the turret on which it is mounted, to
a machining position in which the tool extends from the
turret towards the common axis, and when the machining
portion thereof is advanced towards the common axis to the
maximum extent for machining, the turret and its respective
tool rest are separated from the associated spindle stock by
a gap;
and the workpiece machining portions of the machining tool
are arranged to machine a workpiece in a direction towards
the associated spindle stock."

27. In the claim for petty patent 669, the above italicised portion in para. 5 does not appear, nor does the italicised material in the penultimate paragraph. The 7th paragraph is differently expressed though perhaps the difference is not significant. The 7th paragraph in the claim for petty patent 669 simply reads:

"in use, one or more machining tools are mounted about the
periphery of the first and second turrets."

28. It will be apparent that many issues arise. I turn first to infringement.
Infringement

29. The Nakamura machine tool has two spindle stocks but one of them, that on the left of the viewer looking at the front of the machine, is fixed relative to the frame, and is incapable of movement. Does this mean, as Interact and I.M.T. contend, that, within the sense of each of the claims of the petty patents, the second spindle stock is not movable relative to the first spindle stock "so as to deliver a workpiece to the second spindle stock from the first spindle stock"? If this contention as to construction of the claims be correct, there is no infringement. But, in my view, this contention should be answered in the negative and thus favourably to the patentee, Yamazaki, with the result that there is infringement.

30. It will be seen from the 2nd paragraph of the claims that the two spindle stocks are mounted on the frame of the machine tool. But the claims are silent as to any integer requiring that the spindle stocks or either of them be fixed relative to the frame. The final paragraph of the claims deals with the disposition of the workpiece machining portions of the machining tools so as to allow machining in a direction towards the associated spindle stock; it says nothing about the movement of the spindle stocks, or whether they are fixed relative to the frame. What is specified (in the 6th paragraph) is movement where the relationship is that between spindle stocks. The use there of the purposive or functional expression "so as to deliver . . ." is important in construing the claims; they are thereby limited by a particular result. The expression indicates that relative movement is specified in order to achieve delivery of a workpiece to the second spindle stock from the first. For the performance of that function, there is no requirement that either or both spindle stocks be fixed relative to the frame. To add such a requirement would be to insert a further, and therefore limiting, integer to the claims. If on their true construction the claims do not include such an integer, the result is that the Nakamura machine infringes. There would then be no scope for the application of the maxim that that which is not claimed is disclaimed.

31. What is claimed is relative movability between the spindle stocks, and this is something which may be achieved if, relative to the frame, both are movable, or (as with the Nakamura machine tool) one is fixed and the other is movable. Upon that construction, which I accept, there is infringement.

32. I have reached this conclusion by having regard to the meaning of the claim itself. This is not a case where in the quest for clarity it is permissible to resort to the body of the specifications to define or clarify the meaning of terms used in the claims. However, I should add that if resort were to be had to the body of the specifications, then, in my view, the result would provide support for the construction of the claims which is contended for by the patentee. What is there treated as important is relative movement of the two spindle stocks, not the fixation or lack of fixation of one of them relative to the frame. The specifications are extremely lengthy documents, but I refer in particular to what is disclosed in pages 2-15 of both specifications.

33. The result is that there has been infringement of petty patent 669. It remains to consider whether there also has been infringement of petty patent 140 which, it will be recalled, contains additional integers. In particular, whilst the 8th paragraph of each claim requires that the machining tool has a workpiece machining portion, in petty patent 140 there are the additional words:

"and the arrangement is such that when a mounted
tool is positioned by rotating the turret on
which it is mounted, to a machining position in
which the tool extends from the turret towards
the common axis, and when the machining portion
thereof is advanced towards the common axis to
the maximum extent for machining, the turret and
its respective tool rest are separated from the
associated spindle stock by a gap."

Interact and I.M.T. point to the italicised portion of these additional words, and submit there is nothing in the Nakamura machine tool to ensure a gap between each turret and its tool rest from the associated spindle stock.

34. Mr Jones, who was called by Yamazaki, is a Master of Engineering from the University of Liverpool, in the United Kingdom, and is, relevantly, an expert. He examined a brochure (Exhibit A) put out by Nakamura to promote the TW-20 model and using such expressions as "The Ultimate Solution for Multivariety Batch Production with Remarkable Reduction of Work in Process". He referred to design drawings depicted on page 13 of Exhibit A, and said that if the drawings were an accurate representation of the Nakamura machine tool, "then it would appear a clearance is maintained between the tool rest and its respective head stock at all times as required by (the 8th paragraph of the claim of petty patent 140)". He was not cross-examined upon that statement, but in address it was pointed out that he had not in this passage used the words of the claim, that is to say "separated . . . by a gap". When the machining portion of the mounted machine tool is advanced to the maximum extent toward the common axis, for machining of the workpiece, there is the most chance of a collision occurring unless the arrangement is such that the turret and the tool rest is separated by a gap from the spindle stock. Mr Jones' evidence supports the contention of Yamazaki that the Nakamura machine tool does maintain such a gap or clearance.

35. But the point to be established is that put forward by Interact and I.M.T. by way of defence to the allegation of infringement. Their proposition is that there is nothing in the Nakamura machine tool which they have sold or sought to sell which ensures such a gap.

36. To that end, Interact and I.M.T. relied upon what was said in para. 35 (c) of the affidavit sworn 4 February 1991 by Dr Spencer, who gave evidence in their case. The integer in question in the claim for petty patent 140 is concerned with a gap between, on the one hand, the turret and its respective tool rest, and on the other, the "associated" spindle stock which has a workpiece holding means to hold a workpiece while it is machined. Dr Spencer directed his attention to another matter, the lack of physical restraint in the configuration of the Nakamura machine to prevent contact between the left hand turret and the right hand work holding device mounted on the right hand spindle stock.

37. It was then submitted for the respondents that if the Court examined for itself the drawings depicted on page 13 of Exhibit A, in respect of which Mr Jones had given his evidence, then it would appear, from a proper reading of those and other drawings in Exhibit A, that the design was not such as to maintain the relevant gap. The result would be that there was no infringement of petty patent 140.

38. In response, counsel for Yamazaki emphasised that after all what was in question was not the drawings by a third party of the device of a third party, but the drawings of the Nakamura machine tool in a brochure put out by Nakamura; if in truth the gap is missing, then one would have expected plain evidence to that effect to be forthcoming.

39. Be that as it may, the design drawings should not be construed by the Court in the absence of evidence as to how they would appear to the eye of the typical addressee thereof: see C. Van Der Lely N.V. v Bamfords Limited (1963) RPC 61 at 71; Nicaro Holdings Pty Ltd v Martin Engineering Co. (1990) 91 ALR 513 at 542; Vax Appliances Limited v Hoover plc (1991) FSR 307 at 309-310. Further, in the present case such evidence as there is upon the point (that of Mr Jones) tends in the opposite direction to the conclusion contended for by the respondents. Upon that evidence there was no cross-examination.

40. The position of Interact and I.M.T. is that if they fail upon the submission which I have just discussed, the Nakamura machine infringes petty patent 140 as well as 669. It follows from what I have said that I conclude that there has been such infringement.

41. I turn now to consider the various grounds upon which Interact and I.M.T. propounded their cross-claim attacking the validity of the petty patents.
Section 40

42. The first submission by Interact and I.M.T. is that if, upon their true construction, the claims of the petty patents include a configuration in which one spindle stock is fixed relative to the frame of the machine tool (upon which construction of the claims they concede there would be infringement) the claims are not fairly based on the specifications for the respective petty patents, they being totally silent on that subject.

43. As I have indicated, upon their proper construction, the claims do not include such an integer. Therefore, the occasion does not arise to consider whether the claims as so construed are fairly based on the matter described in the specifications, within the meaning of s. 40. In my view, the claims bear a different construction to that contended for by Interact and I.M.T., and upon that construction there is infringement.

44. The ground of invalidity just discussed bears upon both petty patents. In addition, further complaints of non-compliance with s. 40 were directed solely to the claim of petty patent 140.

45. It will be recalled that the 5th and 8th paragraphs of the claim of petty patent 140 contain material additional to that in the claim of petty patent 669, and that this deals with "gaps". I have set out above, in dealing with infringement, the additional material in the 8th paragraph which is concerned with the separation of the turret and its tool rest form the associated spindle stock. The 5th paragraph deals with the disposition of the first and second turrets, and the additional words are:

"and the arrangement being such that a gap,
which may vary in size, is maintained between
the first and second turrets."

These additional materials appear in the consistory clause in the specification.

46. In respect of the "gaps", Interact and I.M.T. put their submission in various ways. They submitted that there was insufficient description in the specification of the gaps because there is no indication of their size, nature, function or purpose, and that the deficiencies in the two paragraphs rendered the claim not "clear" within the meaning of s. 40. The respondents also contended that the additional material in para. 5 rendered the claim bad for ambiguity because it was not made clear whether the gap there referred to might be increased or decreased while the machine was at rest, or whether the gap might be increased or decreased while the machine was in operation.

47. The sufficiency of the specification is to be determined in the light of the common general knowledge at the relevant date, that is to say from the viewpoint of an addressee, a person with reasonable skill and knowledge in the art who reads the specification in order to understand how to carry the invention into effect: Raleigh Cycle Coy Ld v H. Miller and Coy Ld (1948) 65 RPC 141 at 161; Fox, "The Canadian Law and Practice Relating to Letters Patent for Inventions", 4th Ed., 1969, pp 204-205. The full description of a combination patent does not require a distinction between new integers (if any) and those which are old: Rose Holdings Pty Ltd v Carlton Shuttlecocks Ltd [1957] HCA 48; (1957) 98 CLR 444 at 449.

48. In regard to both "gaps", Dr Spencer (who was called by the respondents) said in his evidence that the relevant integers explicitly stated what had been well known in machine tool design for many decades, that is to say that one should avoid having various moving parts colliding unintentionally. If no gap was maintained between the first and second turrets, they would presumably collide, but one readily apparent solution was to provide a physical constraint in the configuration of the machine tool so as to maintain a gap. Likewise, a collision would occur in operation if no gap existed between a turret and its respective tool rest on the one hand, and the associated spindle stock on the other. Once more, one clear solution would have been to provide a physical constraint such as to maintain a gap.

49. Accordingly, it was submitted for Yamazaki that the "gap integers" were, in the sense of the authorities to which I have referred, a natural development from the disclosure in the body of the relevant specifications, and it was not to the point that they were not dealt with expressly save in the consistory clause in the body of the specifications. I accept those submissions.
Anticipation

50. I put to one side the alleged anticipation by the activities, on and after 11 June 1987, of Yamazaki itself. The other alleged anticipations are the disclosures in each of the Japanese Patent and the French Patent.

51. Where the patent under challenge claims a combination and the alleged anticipation does not incorporate the integers of the combination claim, so that the alleged anticipation would not constitute an infringement, there is no anticipation: Meyers Taylor Pty Limited v Vicarr Industries Limited [1977] HCA 19; (1937) 137 CLR 228 at 235, per Aickin J. Where the alleged anticipation is a prior patent specification, there may be fertile ground for debate in a comparison with the specification in suit as to whether the prior disclosure sufficiently reveals the essential integers. The alleged anticipation is to be treated as read by a skilled addressee. The disclosure will fall short of an anticipation of the combination claimed, if what is required of the skilled addressee is the exercise of inventive ingenuity or the taking of any inventive step, or if an essential integer is missing, or if what has been substituted for an integer is more than the substitution of a "mechanical equivalent" for an inessential integer: Nicaro Holdings Pty Ltd v Martin Engineering Co., supra at 527-531.

52. The claim in petty patent 669 is for a particular combination of integers which enables the result of flexible machining of a workpiece without the need for intervention by an operator to move the workpiece from one chuck to another. It is apparent that the disposition of the tools and the manner in which they are moved and applied to the workpiece is vital to the particular combination; cf. Populin v H.B. Nominees Pty Ltd [1982] FCA 45; (1981) 59 FLR 37 at 47. I accept the submission for Yamazaki that, among others, the essential integers of the claim include the following; (i) the first and second turrets being disposed on the first and second tool rests respectively, (ii) each turret being free to rotate about an axis parallel to the common axis, (iii) the turrets being positioned between the tool rests such that the side faces of the turrets face toward each other, and (iv) in use, one or more machining tools are mounted about the periphery of the first and second turrets.

53. I therefore accept that if either the French patent or the Japanese patent does not disclose all of these essential integers, it does not constitute an anticipation of the claim of petty patent 669. The same conclusion would follow as to anticipation of petty patent 140.

54. Yamazaki then submits that none of the four essential integers I have listed above are disclosed in the French patent and that, indeed, it does not disclose any use of turrets on which machining tools are to be mounted. As to the Japanese patent, the submission is that the second and third of the essential integers listed above are not disclosed.

55. I turn first to consider the French patent.
The French Patent No. 1196561

56. The patentee is a Swiss corporation, and the French application was based on an application filed in Switzerland on 19 July 1957. It is stated that the aim of the invention is a machine and a process for machining several workpieces which have to undergo several machining operations. According to the process, at least one of the operations is carried out for each workpiece when it is placed into the first head stock. The workpiece is then transferred directly without handling from the first head stock to the second head stock, which faces the first. At least one other machining operation is carried out when the workpiece is placed in the second head stock. The machine for the application of the process is described as comprising:

"(T)wo headstocks facing each other of which at
least one is capable of approaching the other in
such a manner that a workpiece carried by one
can be directly transferred to the other, and at
least one tool holder allowing the introduction
of cutting tools between the two stocks in such
a manner that a work piece can be machined when
it is either on the one or the other of them."

Reference is made to attached drawings as representing one form of the execution of the aim of the invention, and in which the elements necessary for understanding the invention have been represented schematically. It is said that there are two tool holders "each carrying a series of cutting tools of which only two have been represented", that in the working position these cutting tools are placed between the two head stocks, and that the mechanisms for advancing the cutting tools and the head stocks have not been represented "because they are outside the present invention and can be brought about by all methods known in the field of machine tools".

57. The evidence of Dr Spencer was that a person skilled in the field of machine tools prior to 1987 would have understood the disclosure in the French patent as including "the possibility of the use of a turret as a tool holder, as a turret was and is a common tool holder used for carrying a series of cutting tools that was well known prior to 1987".

58. The evidence of Mr Day was that the French patent did not indicate or suggest the use of turrets. To him, the machine disclosed by the French patent was a machine tool comprised of two multi-slide automatic lathes, each having its own slide to advance and withdraw the tool, but with no disclosure of any particular method of advancing those tool slides. Mr Day's evidence was that the type of machining achieved with a multi-slide automatic lathe was quite different from that achieved by the use of turrets. To his eye, the disclosure in figure 1 of the drawings was consistent with a type of multi-slide single spindle automatic lathe known in the Australian machine tool industry, and elsewhere, as a "Swiss Automatic". There is a discussion of the Swiss type machines, with illustrations, on pages 556 - 561 of Exhibit 27 (De Garmo et al, "Materials and Processes in Manufacturing", 6th Ed., 1984). This is a standard text used by Dr Spencer in instructing his students at the School of Mechanical Engineering at the University of Technology, Sydney.

59. In his cross-examination, Dr Spencer said that when he read figure 1 in conjunction with the text of the French patent, "there are a number of interpretations". And that "it could be read to - and interpreted as turrets". All technical witnesses were striving to the best of their abilities to assist the Court, but it was my impression that in his cross-examination, Dr Spencer perceived himself as under challenge to maintain a position as to the nature of the disclosure in the French specification which, in truth, was stronger than that he had taken in his affidavit evidence. This was that the use of a turret as a tool holder would have been understood, but as a possibility. If it were necessary to do so, I would prefer on this issue the evidence of Mr Day. But taken as a whole, Dr Spencer's analysis did not rise higher than treating the use of turrets as one of a number of possibilities suggested by the disclosure in the French patent.

60. I have referred to the four essential integers in the claim of petty patent 669 which involve the employment of two turrets in a particular configuration. My conclusion is that Interact and I.M.T. have failed to show that the disclosure in the French patent is sufficient for an anticipation of the claim in either of the petty patents.

61. There is one further point. Even if, contrary to the view I have expressed, the four integers in question were not essential integers, I would not be satisfied on the state of the evidence that what Mr Day described as the Swiss automatic involved an arrangement mechanically equivalent to that of a turret. In his cross-examination, Dr Spencer agreed that there could be differences, flowing from the use of one or other of these means, in speed of operation of the machine tool, the cost of production, and the ease of access to insert or remove a workpiece.
The Japanese Patent No. 58186501

62. As I have indicated, the essential integers of the petty patents in suit include two turrets, being positioned between the tool rests, such that the side faces of the turrets face each other, and each turret is free to rotate about an axis parallel to the common axis. This is important in comparing the disclosure in the Japanese patent. The evidence is that if two turrets are to be used, each to rotate about an axis parallel to the common axis, there are various possibilities for positioning the turrets on the tool rests. Positioning the turrets so as to face each other (as in the claims in the petty patents) is one of a number of possibilities. Another is that the turrets could be positioned on the tool rests so as to face away from each other. This is what is disclosed by the drawing which is figure 8 to the Japanese patent, when read in conjunction with the text. In the translation which is in evidence, the expression "tool post" is to be treated as synonymous with "turret". The result is that the tools mounted upon the turrets are directed outwards, in opposite directions.

63. Counsel for Interact and I.M.T. accepted that the Japanese patent would not be an anticipation without recourse to the doctrine of mechanical equivalents. I have expressed my conclusion that the integers in question in the petty patents are essential, and that therefore the doctrine of mechanical equivalents has no part to play. It follows that the disclosure in the Japanese patent cannot qualify as an anticipation.

64. An attempt was made in final address to demonstrate that what was disclosed in the Japanese patent included integers mechanically equivalent to those missing from the claims to the petty patents. This attempt was made without the benefit of evidence upon the subject from the various experts. This is a case involving claims to combinations, and skilled readers notoriously may differ as to what is disclosed of the interaction of various integers constituting a combination. Unassisted by such evidence, I would not have concluded, even if it had been necessary to decide the point, that what was disclosed in the Japanese patent included the mechanical equivalents of the missing integers.

65. There remains as an alleged anticipation the publication on 11 June 1987 of the detailed drawings of Yamazaki's own Multiplex machine. The issue here is whether the petty patents escape what Yamazaki accepts would otherwise be an anticipation, by making good the proposition that the petty patents have priority dates earlier than 11 June 1987. I will return to this question of priority dates but should indicate at this stage my conclusion that the priority date of both petty patents was 28 April 1987.
Obviousness

66. The further amended particulars of objection state that to make good this ground reliance will be placed upon common general knowledge and, in particular, upon what was then put forward as a number of alleged anticipations. However, at the trial, counsel for Interact and I.M.T. said that the submissions on this branch of the case centred upon one matter, the disclosure in Australia of the Nakamura machine described as the TMC-20 with back face turning device. Plainly, any such disclosure could not have amounted to an anticipation. That is accepted. There was an essential difference between the Nakamura machine and what is claimed in the petty patents because the Nakamura machine did not have a second tool rest and tool turret.

67. However, it was submitted that in the light of that disclosure of the TMC-20, the invention claimed in the petty patents was obvious and did not involve an inventive step having regard to what was known or used in Australia on or before the priority date (which I accept was 28 April 1987).

68. There are several difficulties with this submission as to lack of subject matter.

69. First, it is necessary to show on the evidence that the disclosure in the Nakamura TMC-20 machine had become part of the common general knowledge in Australia by 28 April 1987: Minnesota Mining and Manufacturing Co. v Beiersdorf (Australia) Limited [1980] HCA 9; (1980) 144 CLR 253 at 295, per Aickin J. In that regard, the evidence of Mr Smart, the Managing Director of I.M.T., shows that a Nakamura machine with the back face turning device arrived in Australia early in May 1987 and was included in a trade exhibition held in this country between 19 and 23 May 1987, that is to say, after the priority date. Mr Smart had first learned of the machine in September 1986, and had seen a demonstration of it later in 1986 on a visit to Japan with four representatives of Australian organisations which were considering the purchase of CNC machine tools. Before the exhibition held 19 - 23 May 1987, I.M.T. distributed to prospective customers about 30 brochures describing and illustrating the Nakamura machine. It is not clear from the evidence how many of these were distributed before 28 April 1987. No sales were made before the exhibition.

70. Mr Moeller is the Managing Director of Interact. He first learned of the Nakamura machine in September 1986. He showed photographs to two prospective customers, neither of whom purchased the machine. Interact placed its first order with Nakamura only during February 1989. Mr Jones, an expert called by Yamazaki, was not aware before 28 April 1987 of the Nakamura machine with back face turning device. Mr Henson, another expert called by Yamazaki, was not asked about it. Mr Day, to whose evidence on other issues I have already referred, was familiar with the Nakamura machine by 3 April 1991, when he considered the affidavits which by then had been sworn by Messrs Moeller and Smart. There is no evidence that Mr Day knew of the machine before the priority date. Further, as I have indicated, the disclosures to and by Messrs Moeller and Smart were limited in nature.

71. In these circumstances, the evidence falls well short of establishing that the Nakamura machine had entered the common general knowledge in Australia before the priority date.

72. But, even if the contrary had been shown, that would not be the end of the matter. Upon the hypothesis presently under examination, the particular combination claimed in the petty patents is novel and has not been claimed before. Mr Jones gave evidence of a continuing need in Australia to reduce the time in cycles of operation of machine tools, in particular in the loading and unloading of workpieces before, during and after processing. A particular concern has been the need to turn partly finished components end for end, in order to complete the machining operations. Mr Jones said that the inventions claimed in the petty patents make possible significant improvements in the efficiency of machinery operations. Other solutions had been tried. The simplest was the manual handling of workpieces by machine control operators. Another was the use of robotic handling devices.

73. In a setting where a problem exists and other solutions have been tried, the Court should resist the temptation, in what Aickin J. described as "the glare of hindsight", to stigmatise as lacking ingenuity the particular combination subsequently chosen in the patents in suit: Minnesota Mining and Manufacturing Co. v Beiersdorf (Australia) Limited [1980] HCA 9; (1980) 144 CLR 253 at 293. In that passage, Aickin J. also said:

"In the case of a combination patent the
invention will lie in the selection of integers,
a process which will necessarily involve
rejection of other possible integers. The prior
existence of publications revealing those
integers, as separate items, and other possible
integers does not of itself make an alleged
invention obvious. It is the selection of the
integers out of, perhaps many possibilities,
which must be shown to be obvious."

74. As I have indicated, the Nakamura machine lacked all of the claimed integers associated with a second turret. The consequence was that the machine could perform only one operation at any one time.

75. Mr Smart's company, I.M.T., has been a distributor for Nakamura since October 1985. He said that on first seeing the Nakamura machine he "immediately recognised" an operating disadvantage and saw a solution. One difficulty in accepting that view is that Nakamura, on the evidence, was a company specialising in machine tools, and the machine with a back face turning device was a new product when first seen by Mr Smart. If the solution to the disadvantage has been as obvious as suggested by Mr Smart, it might have been expected that Nakamura would have adopted it rather than to proceed with the marketing, inter alia through Mr Smart's company, of what upon this hypothesis was a machine with an operating disadvantage.

76. Mr Day is a consulting engineer who has participated in a number of research and development projects concerning the design of CNC machines. I found him an impressive witness. Mr Day's evidence was that a designer wishing to achieve the objective (attained in the claims of the petty patents in suit) of simultaneous workpiece machining on two spindle stocks, would not seek to adapt the configuration of the Nakamura machine tool with the back face turning device by the addition of another turret. In particular, the "sub-spindle" of the back face turning device had low power compared with the main spindle. Accordingly, in Mr Day's opinion, a designer would start afresh. I accept that evidence.

77. Accordingly, the case asserting invalidity on the ground of obviousness fails.

78. That brings me to the question of priority date and fair basing upon the Japanese applications.
Fair Basing - Japanese Applications

79. Earlier in these reasons, under the heading "The Issues", I have described the significance for this case of the 15 basic applications made in Japan on various dates between 28 April 1987 and 24 December 1987. In particular, the first 7 of these applications were made before 11 June 1987, the date of what otherwise would be a publication amounting to an anticipation by Yamazaki itself of the inventions claimed by it in the petty patents in suit. As I have already indicated, I am satisfied that the priority dates of the claims in the petty patents are 28 April 1987. This is on the footing that those claims are fairly based on matter disclosed in three of the five basic applications made on 28 April 1987, namely the applications which became Exhibits 3C, 3D and 3E.

80. The concept of "fair basing" is of significance in the operation of various provisions of the Act, and is used to impose a requirement of sufficient connection between disclosures in various categories of document; see Rehm Pty Ltd v Websters Security Systems (International) Pty Ltd (1988) 81 ALR 79 at 92-93. It was accepted by the parties before me that what was said in Re Mond Nickel Co. Ltd's Application for a Patent (1956) RPC 189 at 194 (a case concerned with the relationship between a complete and a provisional specification under the Patents Act 1949 (U.K.)) was of great assistance in determining the present issue, which is concerned with Convention priority dates.

81. In Re Mond Nickel Co. Ltd's Application supra at 194, Lloyd-Jacob J. said:

"It seems to me that there is a three-fold
investigation which is called for. Firstly, one
has to enquire whether the alleged invention as
claimed can be said to have been broadly
described in the provisional specification, and
only if an affirmative answer is given to that
question does one proceed to the second
question, which is: Is there anything in the
provisional specification which is inconsistent
with the alleged invention as claimed? If it is
found, upon examination, that the invention as
characterised in the claim includes something
which is inconsistent with that which is
described in the provisional specification, as
at present advised I should think that it would
be right to conclude that that claim could not
have been fairly based upon the disclosure; but,
assuming that those two burdens are
satisfactorily surmounted, there is, I think, a
third matter for enquiry: Does the claim include
as a characteristic of the invention a feature
as to which the provisional specification is
wholly silent?"

82. Counsel for I.M.T. and Interact submitted that the claims in the petty patents included as a characteristic of the invention three features as to which the Japanese applications were wholly silent.

83. First, it was said (and this submission is analogous to that with which I have dealt in discussing s. 40) that the claims to the petty patents included a configuration in which one spindle stock is fixed and this is a feature as to which the Japanese applications are wholly silent. However, as I have concluded that on their proper construction the claims do not include such an integer, it follows that the present point does not arise.

84. Secondly, Interact and I.M.T. point to the integer in the 4th paragraph of the claim of each of the petty patents that the first and second tool rests, associated with the first and second spindle stocks respectively, which are both disposed, with respect to the frame, to one side of the common axis, both be moveable "at least in a direction perpendicular to the common axis". The phrase "at least" indicates that the claim leaves open the possibility of movement in a direction other than in a direction perpendicular to the common axis, for example, parallel to the Z axis. Then it is submitted that the only disclosure, at least in the first 12 of the Japanese basic applications, is of tool rests moveable in directions perpendicular to the common axis.

85. In response to this second submission, counsel for Yamazaki submitted (and I accept) that the possibility of movement in an additional direction was not a feature of the invention. It was not a limitation of the claims, the expression "at least" being something left open for inclusion as an additional feature, but not specified as an integer.

86. Secondly, counsel submitted that this integer can properly be said to have been broadly described in the basic applications, and that whilst some of the preferred embodiments in those applications allowed movement in a direction perpendicular to the common axis but not in other directions, that was not an "inconsistency" in the sense of Mond Nickel. This was because (as I accept) the disclosure was not limited to the precise embodiments in the basic applications.

87. It was also submitted that there were passages in the basic applications describing tool rests moving in a direction parallel as well as perpendicular to the Z axis. Figures 6 and 7 and 12 and 13, in particular, of Exhibit 3C, disclose the movement of each of the turrets towards and away from the central axis of rotation of the workpiece. The vertical up and down movement of the right hand turret is clearly indicated by a comparison of figures 14 and 15, and of the left hand turret by a comparison of figures 16 and 17, of Exhibit 3D; likewise, for example, figures 14 and 15, and figures 16 and 17, of Exhibit 3E.

88. Finally, the respondents made a submission of lack of fair basing which was peculiar to petty patent 140. This was a reformulation of what I described, in relation to reliance upon s. 40, as the "gap" points. The submission was that the features of the claims, being the gaps, were something as to which the Japanese basic applications were wholly silent. To this, the response by Yamazaki's counsel resembled that made to the reliance upon the gap points in the context of s. 40. It was that, in accordance with the evidence, the "gap integers" were a natural development from the disclosures in the body of the relevant specifications, stating explicitly what had been well known in machine tool design for many decades. I accept that submission here, as I accepted it in relation to the s. 40 point.

89. Accordingly, I hold that the priority date in relation to each petty patent is 28 April 1987. It is, in those circumstances, unnecessary to deal with the alternative submissions of Yamazaki that the priority date is that of one or other of the later Japanese basic applications, or the date of the application for the Australian standard patent, 28 April 1988, and with the contrary assertions of a lack of fair basing of the claims of the petty patents upon any of those later disclosures.
False Suggestion

90. Yamazaki was applicant in respect of both of the petty patent applications. Paragraph 34 (1) (b) of the Act gives standing to apply to the assignee of the actual inventor, and the relevant declarations in support of the applications stated that Yamazaki applied as assignee of the same three named inventors. Also, there was no dispute but that these three gentlemen were employees of Yamazaki. The same is true of the other persons shown as inventors in the remaining Japanese basic applications. Paragraphs 2 and 6 of the applications lodged in Japan, being Exhibits 3C, 3D and 3E, identify the same three gentlemen as the inventors. Further, the applicant in each case is shown as Yamazaki. Thus, there is a correspondence between the identity of the applicants and the inventors.

91. But, in any event, ss. 141 and 142 of the Act pose as the relevant question for the present case whether the applicant in Japan is the same as the applicant in Australia. If there is such an identity, then any lack of correspondence between the inventors would not be a relevant matter; insofar as priority was claimed in Australia by reliance upon ss. 141 and 142, there would, in such a case, be no relevant false suggestion or representation on which the petty patents were obtained, within the sense of para. 100 (1) (k).

92. Copies of all of the Japanese basic applications were lodged at the Patent Office, as required by sub-s. 143 (3) of the Act. They showed, in each case, that Yamazaki was the applicant, and disclosed the identity of the inventors. It would be apparent from a perusal of them that in respect of some of the Japanese basic applications there was not a correspondence between the inventors and those shown as the inventors in respect of the Australian applications.

93. Sub-section 142 (4) of the Act provides that the priority date of the claim of a petty patent specification, being a claim fairly based on matter disclosed in one or more of the basic applications, is the date on which that matter was first so disclosed. That date was 28 April 1987, when the basic applications, Exhibits 3C, 3D and 3E, were lodged.

94. In my view, no case has been made out under para. 100 (1) (k).
The Position of Nakamura

95. Nakamura, pursuant to orders of this Court, has been served with the process in this proceeding. No appearance has been entered.

96. However, the evidence included in Exhibit N contains a letter of indemnity addressed to Interact, on the letterhead of Nakamura, which was executed by Nakamura on 11 March 1991 and by Interact on 29 March 1991. The operative portion of this instrument is as follows:

"IN CONSIDERATION of Interact agreeing to allow
Nakamura to carry on and conduct all of the
proceedings on behalf of Interact, including any
settlement thereof, in such manner as Nakamura
deems fit, and agreeing to give all such
information and assistance to the proceedings as
Nakamura and its legal advisors reasonably
require, Nakamura hereby indemnified and shall
keep indemnified Interact in respect of all the
legal proceedings referred to herein, and all
judgments and awards, including an award of
costs, which may be made against Interact in the
proceedings."

The proceedings in question are described in terms as including the present proceedings in this Court. An indemnity in the same terms was provided by Nakamura to I.M.T., by letter executed by Nakamura on 11 March 1991, and by I.M.T. on 26 March 1991.

97. Further, as I have indicated, since October 1985 both Interact and I.M.T. have been exclusive agents in particular areas in Australia for machine tools manufactured by Nakamura. The evidence of Mr Smart, the Managing Director of I.M.T., shows that his company has received technical assistance from Nakamura, including provision of written materials and videos, together with quite frequent visits to Australia by engineers employed by Nakamura. These engineers help I.M.T. in dealing with enquiries from customers or prospective customers as to new products. In addition, Nakamura regularly consults with its agents as to potential developments for their business.

98. In those circumstances, Yamazaki moves for relief in default of appearance and defence, on the footing that Nakamura has been a joint tortfeasor in any infringement by either of its Australian distributors.

99. I shall not rehearse the relevant principles. They are set out in "Terrell on the Law of Patents", 13th Ed., 1982, paras. 6.47 - 6.49; see also Morton-Norwich Products Inc. v Intercen Limited (1978) RPC 501; Best Australia Ltd v Aquagas Marketing Pty Ltd (1988) 83 ALR 217. I accept that Yamazaki has made out its case against Nakamura.
Conclusion

100. The cross-claim should be dismissed and counsel should bring in short minutes for a declaration as to the commission of infringement during the terms of the petty patents. Any issues as to further relief should stand over. Interact and I.M.T. should pay the costs of Yamazaki of the proceedings to date. I will stand the matter over for a short time to enable short minutes to be brought in to give effect to these conclusions.